M.G. Shyamkunwar vs State of C.G.

Sanjay K. Agrawal, J.�Impugning the legality, validity and correctness of order dated 11.04.2013, this instant revision has been filed by the petitioner herein questioning the framing of the charge against him for the offence punishable under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The core facts required for judging the correctness of the impugned order are as under:--

(2.1) That the State of Chhattisgarh, charge sheeted the petitioner for the offence under Section 509/34 of Indian Penal Code alleging that the petitioner with the help of co-accused-Vijay Das called the complainant-Ku. Hemati Minj to his bungalow and offered her an indecent/vulgar proposal for making physical relation with him, and in turn, promised her to give charge of good branch. Later on, the co-accused Vijay Das also kept pressurizing upon the complainant-Ku. Hemati Minj by offering indecent proposal of the petitioner/accused. The case was reported to the police station on 03.05.2008 and the offence was registered against the petitioner and the co-accused-Vijay Das and after completion of investigation, the prosecution finding that the petitioner is a member of Scheduled Caste and the complainant is a member of Scheduled Tribe, charge-sheet was filed against the petitioner/accused under Section 509/34 of the Indian Penal Code, whereas the charge-sheet was filed against co-accused Vijay Das for the offence under Section 509/34 read with 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, thereafter, the case was committed to the learned Special Judge, (Atrocities Act, 1989) for trial in accordance with law.

It is pertinent to mention here that the petitioner and co-accused Vijay Das were subjected to two separate charge-sheet. Special Session Case No. 16/2010 was registered as State of Chhattisgarh Vs. M.G. Shyamkunwar against petitioner, whereas against the co-accused Vijay Das, Session Case No. 17/2010 has been registered as State of Chhattisgarh Vs. Vijay Das.

The question of framing charges against the present petitioner and co-accused Vijay Das considered by the Special Session Judge on 11.04.2013 and upon considering, the Special Session'' Judge found sufficient grounds for proceeding under Section 509/34 of Indian Penal Code & 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the petitioner/accused as well as co-accused Vijay Das and separately charges were framed against the petitioner/accused and co-accused Vijay Das. Against this impugned order, this revision has been filed by the petitioner/accused.

Shri Rishi Rahul Soni, learned counsel appearing for the petitioner would submit that the Special Sessions Judge is absolutely unjustified in framing the charge-sheet against the petitioner as the petitioner is a member of Scheduled Caste, and therefore, by virtue of 3(1)(xi) of the Act, he cannot be prosecuted for the offence punishable under Section 3(1)(xi) of the Act and the order framing charge so far as offence under Section 3(1)(xi) is concerned deserves to be set aside.

On the other hand, Shri R.K. Gupta, learned Deputy Advocate General appearing for the State/respondent would submit that the State has only charge-sheeted against the petitioner for the offence punishable under Section 509 of the Indian Penal Code and it is the Special Sessions Judge finding sufficient material on record framed charge against the petitioner under Section 3(1)(xi) of the Act.

I have heard learned counsel appearing for the parties and have perused the record with utmost circumspection.

It is undisputed and admitted fact that the prosecution has filed charge-sheet against the present petitioner only for the offence under Section 509 read with 34 of the Indian Penal Code.

Section 3(1)(x) of the Act provides as under:--

Punishments for offences of atrocities--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

From the perusal of Section 3(1) of the Act, it indicates two important facts namely:--

(a) the created offences and punishment arising therefrom enumerated under Section 3 of the Act of 1989, are not applicable to the members of Scheduled Castes and the Scheduled Tribes; and

(b) the provisions of Section 3 of the Act encompass the entire Indian population, irrespective of any caste, creed or religion, except the members of the Scheduled Castes and the Scheduled Tribes.

Thus, the Section 3(1) of the Act that is punishment for the offence of Atrocities would not be applicable to a member of Scheduled Castes and the Scheduled Tribes.

The question that falls for consideration is whether the petitioner is a member of Scheduled Castes and the Scheduled Tribes and there is a material produced along with the charge-sheet to that effect.

The petitioner has filed a copy of charge-sheet along with revision petition. In the particulars of the petitioner/accused filed with charge-sheet, he has been shown to be ''Mahar'' i.e. Caste falling within the meaning of Scheduled Caste and not only this, further page at 19 in the Arrest/Court Surrender Memo, the petitioner has been shown as a member of Scheduled Caste. The petitioner has also filed the statement of witnesses (1) Ku. Hemanti Minj-complainant (2) Ku. Salima Minj (3) Rajesh Kumar Lakda (4) D.N. Mandal (5) Madiram Bhagat (6) M.C. Vishwas & (7) Yogendra Prasad, they have not stated that the petitioner is not a member of Scheduled Caste. In order to support the prosecution case, the petitioner has also filed a permanent caste certificate issued by the Sub-Divisional Officer, Waraseoni on 28.11.2013 in which the petitioner has been shown ''Mahar'' caste who is a member of Scheduled Caste.

In a decision reported in Gorige Pentaiah Vs. State of A.P. and Others, , Supreme Court has held that the prosecution must show that the accused/petitioner is not a member of Scheduled Castes and the Scheduled Tribes held as under:--

"6. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."

In the instant case it is a prosecution case from the day one that the petitioner is a member of Scheduled Castes duly recorded in charge-sheet filed against him and the charge-sheet filed against the petitioner further affirms the fact that against co-accused Vijay Das who is not a member of Scheduled Caste, a separate charge-sheet was filed against him for the offence under Section 3(1)(xi) of the Act of 1989, but the Special Session Judge without considering material and the documents brought on record in its proper prospective has framed charge under Section 3(1)(xi) of the Act against the petitioner ignoring the mandate of the Section 3(1) of the Act, which is bad-in-law.

Consequently, the order framing charge against the petitioner so far as offence under Section 3(1)(xi) of Act of 1989 is concerned is set-aside. The Special Judge, Ambikapur is directed to consider on the question of framing charge against the petitioner for offence under Section 3(1)(xi) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 afresh in accordance with law in light of observation made hereinabove. Revision is allowed to the extent indicated hereinabove.