Shanti Devi and Others vs State of U.P. and Others

Pramod Kumar Srivastava, J.—Present revision has been filed against the summoning order dated 30.11.2009 passed by Chief Judicial Magistrate, Kanpur Dehat. Complainant had filed complaint case before the Court below with averment that on 27.4.1989 at about 1.00 p.m. in night, accuseds (present revisionist) had come on the field, abused and threatened the complainant using caste names, and beaten the complainant.

In support of his case complainant (present respondent No. 2) had examined himself under section 200 Cr.P.C. and two witnesses Arun Kumar and Anju Bajpai under section 202 Cr.P.C. Then after hearing, learned Chief Judicial Magistrate had passed impugned order dated 30.11.2009 by which accuseds-revisionist were summoned for offences under sections 323, 504, 506 IPC and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act), aggrieved by which summoned accused had preferred present revision.

None appeared on behalf of respondent No. 2 at the time of hearing of revision. I have heard learned Counsel for the revisionist and learned AGA and gone through the records.

Contention of learned Counsel for the revisionist was that Court below had alleged incident had been committed in dark night at about 1.00 PM, in absence of light. Therefore it was not possible for any person to identify culprits. It was also argued that if prosecution cases is taken to be true and prove in that case also no offence of 3(1)(x) of SC/ST Act appears to have been committed, so summoning order is erroneous and is liable to be quashed.

Learned AGA had contended that complainant-revisionist had prima facie prove its case for offences under which accused were summoned, therefore this revision should be dismissed.

I have heard the rival contentions and gone through the records of the case.

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

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

(i)-(ix) * * *

(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."

In Sivaran Singh v. State, 2008 (62) ACC 912 (SC) : 2008 (72) ALR 47 Apex Court had held as under:

"24. In our opinion, calling a member of the Scheduled Caste "chamar" with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word "chamar" will of course depend on the context in which it was used.

.................

30............The use of the word "chamar" will certainly attract section 3(1)(x) of the Act, if from the context it appears that it was used in a derogatory sense to insult or humiliate a member of SC/ST."

The provision of section 3(1)(x) of the SC/ST Act and legal position, as noted above, provides that a person can be punished under this provision only when he commit such offence against person of scheduled-caste/scheduled-tribe community on the ground that such a person/victim is a member of SC/ST community. From the evidence in present case, it appears that alleged act of fight had allegedly been committed by accused-appellant only because of already existing enmity and dispute of crop. It was not the prosecution case that offence was committed for the reason that victim/complainant belongs to scheduled-caste community. At least there is no evidence in this regard. Therefore even if prosecution case is accepted to be true in toto, in such matter accused cannot be punished for offence punishable under section 3(1)(x) of SC/ST Act. Therefore the finding of trial Court holding the appellant prima facie guilty for the offence under section 3(1)(x) of SC/ST Act is erroneous and is liable to be set aside.

Accordingly revision is partially allowed. The part of impugned order dated 30.11.2009 passed by Chief Judicial Magistrate, Kanpur Dehat relating to summoning the accused revisionist for offence under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is set aside. Let a copy of this order be communicated to trial Court, through C.J.M. Kanpur Dehat, for ensuring compliance.