Chattisgarh High Court
Smt. Prabha Choudhary vs Shubham Gupta on 23 February, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
Neutral Citation
2024:CGHC:6546
1
AFR
HIGH COURT of CHHATTISGARH, BILASPUR
CRR No. 233 of 2022
• Smt. Prabha Choudhary W/o Shubham Gupta Aged About 24 Years
R/o New Sarangarh Bus Stand, Raigarh, Transport Nagar Tahsil and
District Raigarh Chhattisgarh.
------Petitioner
VERSUS
1. Shubham Gupta S/o Nirmal Gupta Aged About 25 Years.
2. Rinku Gupta S/o Nirmal Gupta Aged About 32 Years.
3. Nirmal Gupta S/o Lt. Gaji Prasad Gupta Aged About 64 Years.
4. Smt. Shanti Gupta W/o Nirmal Gupta Aged About 60 Years.
All above are residents of Bhajandipa Rajiv Gandhi Nagar, Chowki
Jutmill, Raigarh, Tahsil and District Raigarh Chhattisgarh.
5. State of Chhattisgarh through Police Station Jutmill, Raigarh District
Raigarh Chhattisgarh.
-------Respondents
For Applicant : Mr. Hari Agrawal, Advocate For Respondent No. 1 to 4 : Mr. Abhishek Saraf, Advocate For State : Ms. Supriya Upasane, Govt. Advocate Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD ( 23 / 02 /202 4 )
1. Petitioner has filed this criminal revision against non-framing of the charge by learned Special Judge (Atrocities), Raigarh, under Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "SC/ST Act").
2. Learned counsel for petitioner submits that petitioner and respondent No. 1 got married in the year 2018. After some time of their marriage, she was being harassed as she belongs to the member of Scheduled Caste community. She was asked to bring dowry of ₹3 Lakh and thereafter she was also ousted from her matrimonial home. While the petitioner was residing in her parents house, Respondent No. 1 came there and committed maar-peet. After some time, petitioner lodged a Neutral Citation 2024:CGHC:6546 2 written report to the concerned police station mentioning that she was ousted in the month of April 2020 after assaulting her. Based upon which, F.I.R. was registered and in the F.I.R. also the entire allegation as made in the written report was extracted. The statement of petitioner was recorded under Section 161 of CrPC on 22.10.2020 wherein also she made similar allegations. He contended that initially F.I.R. was registered under the provisions of Section 498(A) and 34 of IPC, however the investigating agency realized that the offence under the SC/ST Act is also attracted and her further statement under Section 161 of CrPC was recorded on 02.11.2020, wherein apart from the aforementioned offence it is also alleged that after ousting from her matrimonial home when she was residing in her parents house, Respondent No. 1 came there and again assaulted her. After completion of the investigation, police considering the material collected, have submitted the charge-sheet for offence under Section 498(A), 323, 34 of IPC and Section 3(1)(d), 3(2)(va) of the SC/ST Act. The charge-sheet was submitted before the Special Jugde (Atrocities), Raigarh. Learned Special Judge after hearing the arguments of learned counsel for the respective parties, at the stage of framing of charges, has framed the charges only under Section 498A, 323 and 34 of IPC vide order dated 11.08.2021 and in the same order it is further recorded that there is no material to presume that non-applicants have committed any offence attracting the provisions of Section 3 of the SC/ST Act which on the face of material available in the charge-sheet is erroneous. He submits that in the written report, F.I.R. as also the statement recorded under Section 161 of CrPC there are allegation of assault (maar-peet) with petitioner and therefore the provisions under Section 3(2)(va) is clearly attracted. He places reliance upon the decision of Hon'ble Supreme Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 to Neutral Citation 2024:CGHC:6546 3 contend that at the stage of framing of charges it is only to be seen whether there is prima facie material available to presume of commission of offence and not to come to the definite conclusion that whether allegation will lead to conviction or not. Learned counsel further relied upon the case of State of Madhya Pradesh vs. Deepak reported in (2019) 13 SCC 62, as also the decision in the case of Patan Jamal Vali vs. State of Andhra Pradesh reported in (2021) 16 SCC 225.
3. Ms. Supriya Upasane, learned State counsel would support the impugned order. However, upon asking she submits that the police during investigation has seized caste certificate of petitioner which is forming part of case diary. She does not dispute the submission of learned counsel for petitioner with respect to nature of allegation levelled in the written complaint, in F.I.R. and in the statement recorded under Section 161 and further the submission of final report for the alleged commission of offence under Section 498-A, 323, 34 of IPC, Section 3(1)(d), 3(2)(va) of the SC/ST Act.
4. Mr. Abhishek Saraf, learned counsel for Respondents No. 1 to 4 also opposed the submission of learned counsel for petitioner and would submit that learned Special Judge while considering the arguments as also the material available in the charge-sheet, has rightly concluded that there is no material to presume commission of offence under Section 3 of the SC/ST Act, and hence, no interference is called for. He places reliance upon the decision of Hon'ble Supreme Court in the case of Ramesh Chandra Vaishya vs. State of Uttar Pradesh reported in (2023) SCC OnLine SC 668. He submits that merely uttering a word on caste will not be sufficient to attract the provisions of Section 3 of the SC/ST Act.
5. I have heard learned counsel for the parties and perused the documents enclosed along with revision petition which are part of the Neutral Citation 2024:CGHC:6546 4 charge-sheet and not disputed by the counsel for the State.
6. Written complaint is filed at page number 29 of the revision, wherein the complainant/ petitioner stated that she belongs to the Scheduled Caste community. She initially performed court marriage with Respondent No. 1 and thereafter in accordance with Hindu customs and resided separately with her in-laws in her matrimonial home. There was further allegation that after assaulting she was ousted and further in the statement recorded under Section 161 of CrPC, there is further allegation that when she was residing separately in her parents house, Respondent No. 1 came there, quarreled and also committed maar- peet with her. Based on the report as also the statement recorded under Section 161 of CrPC, police after completion of the investigation has submitted final report under Section 498(A), 323, 34 of IPC and Section 3(1)(d), 3(2)(va) of the SC/ST Act. From the allegations made in the written report and the statement of the victim/ petitioner, there is no allegation against the Respondents to attract the provisions of Section 3(1)(d). However, there are allegation of maar-peet with her attracting the provisions under Section 3(2)(va) of the SC/ST Act. Provisions of Section 3(2)(va) of the SC/ST Act which appears to be relevant in the facts of the case is extracted for ready reference:
"3(2)(va). Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;
7. Provisions of Section 3(1) talks about 'Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe'; 3(2) talks about 'Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe; 3(2) (va) envisages that "commits any offence specified in the Schedule, Neutral Citation 2024:CGHC:6546 5 against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Respondent No. 1 married with petitioner, there is allegation of maar-peet. Under Schedule 1 appended to Section 3(2) (va) also includes the offence under Section 323 of IPC. Learned Special Judge while passing order for framing the charges in cursory manner has observed that in the opinion of the court there is no basis for presuming that the respondents have committed any offence as envisages under Section 3 of the SC/ST Act. Learned Special Judge erred in not considering the allegation levelled by the petitioner in her written complaint as also the statement recorded under Section 161 of CrPC in appropriate manner. Provisions under Section 3(1) of the SC/ST act provides for whoever not being a member of SC/ST commits any act as mentioned under Section 3(1)(a)(2c) shall be punishable; further sub-section (2) (va) of Section 3 provides for any person not being a member of SC/ST commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable. Under Schedule 1 appended to Section 3(2)(va) includes the offence under Section 323 of IPC also. At the stage of framing of the charges, learned trial court has to consider entire material available in the charge-sheet and presume that the allegation levelled are correct. At the stage of framing of charges, the Courts are not required to go into deep whether the allegations levelled for commission of any offence and the material available in the charge-sheet will lead to its conviction or not. Hon'ble Surpeme Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi), reported in (2009) 16 SCC 605 has observed that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to find out if the facts Neutral Citation 2024:CGHC:6546 6 emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. Hon'ble Supreme Court in the case of State of Maharastra vs. Som Nath Thapa reported in (1996) 4 SCC 659 has observed thus:
"32. ...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
8. Hon'ble Supreme Court in the case of Rajbir Singh vs. State of U.P. reported in (2006) 4 SCC 51 has observed that High Court must apply the test whether there is sufficient ground for proceeding against the accused or there is ground for "presuming" that the offence has been committed and held thus:
"10. The High Court did not at all apply the relevant test, namely, whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed an offence. If the answer is in the affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that "as the firing was aimed at the other persons and accidentally the deceased Pooja Balmiki was passing through that way and she was hit" and further observing that "the applicant neither intended to kill the deceased nor was she aimed at because of the reason that she was a Scheduled Caste" set aside the order by which the charges had been framed against Respondent 2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside."
9. If in the aforementioned law laid down by the Hon'ble Supreme Court, Neutral Citation 2024:CGHC:6546 7 the facts of the case are considered, from perusal of the statement of victim recorded under Section 161 of CrPC would show that she has also made allegation of ousting her from the house after assaulting her. Learned trial court has not considered the entire material available in the charge-sheet. In the final report also ousting the complainant/ victim after assaulting (maar-peet) is mentioned and police submitted charge- sheet for alleged commission of offence under Section 498A, 323, 34 of IPC and Section 3(1)(d), 3(2)(v-a) of the SC/ST Act.
10. In case of Amit Kapoor vs. Ramesh Chander, reported in (2012) 9 SCC 460, Hon'ble Supreme Court has laid down the principles to be borne in mind for proper exercise of jurisdiction under Section 397 or 482 CrPC, as the case may be, particularly in the context of quashing of charge. The principles in Amit Kapoor's case (supra) were recently quoted with approval in case of Manendra Prasad Tiwari v. Amit Kumar Tiwari & another, reported in 2022 SCC Online SC 1057. One of the principles on which revisional jurisdiction can be exercised is that if the allegations are patently so absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Relevant principles culled out by Hon'ble Supreme Court in aforementioned decision read thus:-
"27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
xxxxx xxxxx xxxxx 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
Neutral Citation 2024:CGHC:6546 8 xxxxx xxxxx xxxxx 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
xxxxx xxxxx xxxxx 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist."
11. Further, at the stage of charge, this Court in exercise of revisional jurisdiction is not required to go for mini trial as held by the Hon'ble Supreme Court in case of Mohan Lal vs. State of Rajasthan, reported in (2019) 15 SCC 584, in Para-7, which reads thus:-
"We are of the view that the High Court could not have conducted a mini trial at the stage of framing of charge, and that too in revision filed against the order framing charges. We are of the view that it is impossible to state at this stage that no case could possibly be made out for ultimate conviction of Respondent No.2. This being the case, we set aside the judgment of the High Court and restore that of the trial Court."
12. In the aforementioned discussion, I am of the view that the learned trial court erred in discharging the non-applicants from offence under Section 3(2)(va) of the SC/ST Act in not framing the charge under Section 3 of the SC/ST Act and framing of the charges only under Section 498A r/w Section 34, Section 323 r/w Section 34 of IPC.
13. In the opinion of this Court, the impugned order dated 11.08.2021 framing charges under Section 228 of CrPC by the Special Judge (Atrocities), Raigarh is erroneous and not sustainable and therefore it is hereby set aside. The matter is remitted back to the Court of Special Judge (Atrocities), Raigarh for passing the order under Section 228(1) Neutral Citation 2024:CGHC:6546 9 of framing the charge afresh after considering the entire material available in the charge-sheet, in accordance with law.
Sd/-
(Parth Prateem Sahu) Judge /pwn