AI Structured Summary
Not yet generated for this judgment
Judgment
Hon. Shri Sheel Nagu, J.—Both these criminal revisions i.e. Criminal Revision No. 125/2012 & Criminal Revision No. 127/2012 are being decided together as both revisions are arising out of the same set of factual circumstantial and legal background. In both these criminal revisions filed u/s 397/401 of Cr.P.C. separate orders both dated 21/01/2012 are under challenge, whereby the JMFC, Gwalior in two separate criminal cases i.e. criminal case No. 866/2012 (complaint) (Smt. Meera Chidar Vs. Narmada Yadav and Sanjay Yadav) and criminal case No. 867/2012 (complaint) ( Gopal Jatav Vs. Sanjay Yadav) has taken cognizance of the offence alleged against the petitioners herein u/s 323, 506B & 294 I.P.C. and Section 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in respect of criminal revision No. 125/2012) and has taken cognizance of offence punishable u/s 420 of IPC and Section 3(1) (x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in respect of criminal revision No. 127/2012).
The following primary grounds for challenge have been raised by counsel for petitioners:-
(I) That once having found that offence alleged in the complaint relates to an offence triable exclusively by the court of sessions, JMFC could not have directed for investigation by the police in view of the bar contained in Section 202 (1) proviso (a).
(II) No offence punishable u/s 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out even on the bare reading of the complaint and the statements of complainant and his witnesses.
As regards first ground, it is decipherable from the record that though a direction was issued from the court of JMFC on 18/03/2011 for investigation by the police which was not permissible in terms of Section 202 (1) proviso (a) of Cr.P.C., but it remains to be seen that before receiving the final report of the police dated 25/04/2011 opining that no offence punishable u/s 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out, the Magistrate concerned recorded the statements of the complainant and his witnesses on 18/03/2011 and also on 09/06/2011 which disclosed the allegation of complainant who is a member of Scheduled Caste & Scheduled Tribes community of being insulted and intimidated with an intention to cause humiliation within public view.
It is true that the Magistrate ought not to have directed for investigation in view of the bar contained in proviso (a) of Section 202 (1) of Cr.P.C. and instead ought to have conducted an inquiry on it''s own level in terms of Section 202(2) of Cr.P.C. but looking to the fact that the Magistrate on it''s own recorded the statements of the complainant and his witnesses and has come to the independent finding without being solely persuaded by the final report submitted by the Police, the said objection of the petitioners in regard to the bar of Section 202 (1)(a) of Cr.P.C. is a mere technicality which cannot assist the petitioners in view of the subsequent act of the Magistrate in recording the statements by conduction of an enquiry u/s 202(1) (2) of Cr.P.C.
As regards the second ground of offence punishable u/s 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act not being made out, it would be appropriate to advert to the allegation contained in the complaint and the statements of witnesses. Learned counsel for petitioner has vehemently argued that from the allegation in the complaint and statements of witnesses, it is evident that intimidation or insult were made not with an intent to humiliate the complaint and also the said insult and intimidation have not taken place within public view.
The allegation of insult and intimidation is very much present in the complaint and from the reading of the statements of the witnesses wherein categoric assertion has been made by the accused by using words of abuse and intimidation against the complainant. The abusive words used by the accused also contain derogatory remarks as regard the caste of complainant.
Learned counsel for the petitioners further contended that from the allegations in the complaint and the statements of witnesses it is not evident that the insult and intimidation was made with intent to humiliate a member of scheduled caste/ scheduled tribes. Here it is to be seen that whether an abusive word or a threat is made with an intent to humiliate a member of Scheduled Caste/ Scheduled Tribes cannot solely to be deciphered from the mere allegation contained in the complaint or even from the statements of witnesses. Whether the insult or intimidation was to humiliate the complainant or was to humiliate complainant because he was a member of Scheduled Caste/ Scheduled Tribes community, is relatable exclusively to the state of mind of the accused existing at the time when the accused is said to have committed the offence. This state of mind can be discovered only at the time of adducing of the evidence when the complainant, accused and their respective witnesses are subjected to examination and cross-examination. Thus the state of mind cannot ordinarily be deciphered at pre evidence stage.
In view of the above on the material available, it is not possible for this court to judge actual state of mind of the accused to decipher the "intent" which Section 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act contemplates. The allegations contained in the complaint and the evidence adduced at pre-cognizance stage or the stage of framing of charge may or may not disclose the said state of mind of the accused as to whether the accused committed the offence of causing insult and intimidation to a member of scheduled Caste/ Scheduled Tribe with intention to humiliate the complainant because he was a member of scheduled Caste/ Scheduled Tribes community.
In view of the above, no illegality or impropriety or material irregularity is found in the order of taking cognizance by the Magistrate concerned.
Reliance placed by the counsel of the rival parties upon the decison of Apex Court in the case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, is of no avail as the said case pertains exclusively to the interpretation of the term "in presence of public view", which is not the issue herein.
Further the decision in the case of Sanjay Bansal and Another Vs. Jawaharlal Vats and Others, is also not applicable to the issue involved herein as the said case was attended with different set of fact and circumstances wherein it was held that Magistrate cannot compel the police to change it''s opinion. No such occasion has arisen herein and therefore, the said decision of the Apex Court has no application. In view of the above, both the criminal revision No. 125/2012 and criminal revision No. 127/2012 having no merit are dismissed without any order as to costs.