Rekha Aggarwal and Anr vs State

M.L. Mehta, J.—The present revision is being preferred to challenge the impugned order of charge dated 29.01.2005 passed by the learned ASJ whereby the learned ASJ ordered framing of charges u/s 3(1) (x) of the SC & ST Act.

The facts necessitating the present revision petition are that, on a complaint lodged by Vinod Kumar, Umesh Kumar, Surender Chander, Harpal Singh and Umashankar in P.S. Kalkaji, New Delhi a case u/s 3(1) (x) of the SC & ST Act was sought to be lodged wherein it was alleged that accused Rekha Aggarwal and accountant R.P. Malhotra hurled caste related remarks against the complainants. The complainants stated that on 14.09.2001, accused Rekha Aggarwal and R.P. Malhotra called their colleague Harpal from his duty and asked him to emulate a cock and when he refused to do so he was subsequently beaten by R.P. Malhotra. He also abused the complainant Harpal and when the other complainant went to save Harpal, they were also abused by saying that saalo, churo, chamaro, bhangiyo tumahari okat gandagi (mella) uthana hai. Tum log hamare pass kya karne aagaye and pushed them out of the chamber.

The challan was presented before the Magistrate and the case was committed to the Court of learned ASJ on 29.4.2004.

The learned counsel for the petitioner contends that the ingredients of the section 3 (1) (x) of the Act which require that the act to constitute an offence under this section it has to be proved that the caste based remarks were made in "public view" as contemplated in the section. The counsel for the petitioner relies upon the judgment of this Court in Daya Bhatnagar and Others Vs. State, wherein it was held that the presence of one or more neutral or impartial witness would constitute the definition of "public view" as required to attract the offence u/s 3(1)(x) of the Act.

This Court in Daya Bhatnagar and Ors (Supra) held that the accused must have knowledge or awareness that the victim belongs to Scheduled Caste or Scheduled Tribe community and if an accused does not know that the person whom he is insulting, intimidating or humiliating is a member of a Scheduled Caste or Scheduled Tribe, no offence under the section would be constituted. It was also held that the expression "public view" in section 3(1) (x) of the Act implied within view of a group of people of the place/locality/village not linked with the complainant through any kinship, business, commercial or any other vested interest, and who are not participating members with him in any way. The offending expressions, therefore, should be uttered by the persons accused, in view of others unconnected with the complainant.

After a detailed perusal of the complaint as well as the evidence available on record, it can safely be concluded that there were no other person present at the place of incident besides the complainants and the accused persons. This fact has been supported by the statements of the complainants as well as by their complaints.

In the case of Daya Bhatnagar (supra) it was held that to attract the ingredients of section 3(1)(x) of the Act, the presence of neutral and impartial person is necessary and a must to attract an offence u/s 3(x) of the Act. In the present case, at the time of the alleged incident, there were no independent person present at the spot besides the complainants themselves and the complainants cannot be considered to be impartial/neutral.

Therefore, offence u/s 3(x) of the Act is not made out against the present petitioner and thereby this petition is allowed. The summoning order stands quashed as against the present petitioners.