Narinder Kumar vs Kamlesh and Others

Paramjeet Singh, J.—The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 19.01.2013 passed by the learned Judicial Magistrate 1st Class, Kurukshetra, whereby complaint of the petitioner-complainant under Sections 3(v), (viii), (ix), (x), (xiv), (xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 218 of the Indian Penal Code and Section 13(a) of the Prevention of Corruption Act, has been dismissed. Brief facts of the case are that on 22.09.2011 at about 3.30 P.M. respondent Nos. 1 and 2 came to the house of the petitioner where father of the petitioner had gone for a walk while mother of the petitioner was in the home. On her arrival, respondent No. 1 shouted publically before the gate of the petitioner and stated "Tum Dad Chamaron Ne Hamara Pados Khrab Kiya Huya Hai, Abhi to Tumhara Gate Band Karwaya Hai Ab Tumhara Pani Bijli Bhi Band Karwa Denge." The petitioner requested them not to so call against his caste. On this, respondent No. 2 - Shiv Kumar Sharma shouted "Sale Dad, Jalado Apne Aap Ko Kya Samjhte Hai, Tumhara Kam Jutiya Kandne Ka Hai, Yah Brahman Baniya Ka Mohalla Hai, Tumhara Main Se Chmade Ki Badbu Aati Hai, Ya to Makan Chod Kar Bhag Jayo." On this many people gathered there. The owner of the house along with other labourers also came out in the street and requested them not to do so on which respondent No. 2 - Shiv Kumar stated to his wife "Kyun in Chamaro Dadon Ke Muh Lagti Ho" and stated to the petitioner and his mother "Sale Dadon Chup Chap Makan Chod Kar Bhag Jao or Jakar Kisi Sadak Per Badh Kar Jutiyan Kadho, Tumne to Hamari value bhi Kam Kardi Hai, Jo Hamare Ristedar Bhi Akar Atraj Karte Hai." On 23.09.2011, the petitioner moved an application to Superintendent of Police, Kurukshetra who forwarded the same to Police Post 3rd Gate, Kurukshetra, which was dealt with by ASI Mange Ram - respondent No. 3, who after investigating the complaint sent back the same to the Superintendent of Police with a comment that it was false complaint. When the petitioner asked ASI Mange Ram about the status of his complaint then he uttered "Are Sale Dad Ki Aulad Kyun Mera Dimag Kha Raha Hai, Yahan Se Dafa Ho Jayo." Thereafter, the petitioner met the S.P., Kurukshetra and apprised him of the situation on which second complaint was again marked to ASI Mange Ram, which was later on entrusted to SHO, Kurukshetra, who called the petitioner and two witnesses. When the petitioner, Rakesh Sharma and Raj Kumar witnesses reached in Police Station, Kurukshetra where respondent No. 2- Kewal Singh was present and threatened the witnesses. Later on, he asked to submit the affidavit of the witnesses of the petitioner on which Rakesh Kumar and Raj Kumar submitted their affidavits on 24.01.2011 which were not placed on the enquiry file. Respondent No. 2 asked the petitioner to give Rs. 20,000/- if he wanted to get his case registered. Thereafter, respondent No. 4 had prepared incorrect record to save the accused and a false report had been sent to the DSP Headquarter alleging that complaint of the petitioner was false and no action had been taken. Thereafter, the petitioner filed the present criminal complaint before the trial Court.

The learned Trial Court vide judgment dated 19.01.2013, after appreciating the evidence, dismissed the complaint and discharged the accused-respondents. Hence, this application for grant of leave to appeal.

I have heard learned counsel for the petitioner and gone through the impugned judgment.

The learned trial Court, after appreciating the evidence on record, observed as under:--

....It is evident on the file that alleged incident took place on 22.9.2011 at about 3.00 p.m. However, complainant neither sought permission to prosecute public servant as required u/s 198 of Code of Criminal Procedure nor can establish their individual activities the alleged commission of crime. It has been alleged by complainant himself that he made an application dated 23.9.2011 to S.P., Kurukshetra in writing but said complaint has not been proved on file as per record. It is apparent to say that respondents No. 3 and 4 were discharging their public duty and therefore, it was incumbent upon complainant to seek permission for their prosecution u/s 197 Cr.P.C. For the sake of discussion, if any person would not get result according to his wishes from public servant, then he would certainly make allegation to take revenge as counter blast against public servant. Here it is ample clear that Mange ASI while discharging his public duty, put endorsement/comment on the application dated 23.9.2011 moved by complainant that it was a false complaint but copy of this endorsement/comment is also missing on file. Complainant did not record statement of Raj Kumar who was allegedly present at the time of incident. From scrutiny of CW Rakesh Sharma, it does not where reveal absolute corroboration with statement of CW1 complainant relating to alleged incident. It is also evident on file that there is pending civil dispute between complainant with respondents No. 1 and 2 regarding the gate of house and complainant party has also filed second regular appeal in this regard before Hon''ble High Court. This facts itself make clear that there is not going cordial relation between parties due to dispute ever gate of house and matter is sub-judice before Hon''ble High Court. It is, thus, clear that during the pendency of this appeal though its copy has not been placed on record, complainant leveled allegation against accused person which is apparently result of counter blast without determination fate of appeal and in that eventuality, this Court is formed an opinion that statement of complainant and other witness are not sufficient at all being untrustworthy and uncreditworthy to summon these persons for commission of an offence u/s 3(v), (vii), (ix), (x), (xiv), (xv) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 and Section 218 of IPC and u/s 13(a) of Prevention of Corruption Act....

Their Lordships of the Supreme Court in Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa Vs. Sanjay Thakran and Another, , and Chandrappa and Others Vs. State of Karnataka,

A Division Bench of this Court in State of Punjab Vs. Hansa Singh while dealing with an appeal against acquittal, has opined as under:--

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

In '' Mrinal Das and Others Vs. The State of Tripura, , decided on September 5, 2011, the Hon''ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Similarly, in the case of '' State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , the Hon''ble Supreme Court has observed as under:--

A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.

Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:--

There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, this application for leave to appeal is dismissed.