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Jharkhand High Court

Rupak Akhouri & Anr vs State Of Jharkhand & Anr on 25 July, 2011

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr.M.P.No.489 of 2011
            1. Rupam Akhouri.
            2. Akhouri Basant Teshwari Prasad. ...    ...Petitioners
                                -Versus-
            1. The State of Jharkhand.
            2. Shiv Jan Ram. ...         ...  ... ... ...Opp. Parties
                                -------------
            CORAM:       THE HON'BLE MR. JUSTICE D.K.SINHA


            For the Petitioners:       Mr. Sameer Saurabh, Advocate.
            For the State:             A.P.P.
                              -------------
            C.A.V. on 28.06.2011              :    Pronounced on 25.07.2011
                              -------------
D.K.Sinh,J.             The petitioners have invoked the inherent jurisdiction of this Court
            under Section 482 of the Code of Criminal Procedure for the quashment of the
            order dated 23.02.2011 passed in Criminal Revision No. 60 of 2010 recorded
            by the 1st Additional Sessions Judge, Bokaro by which the order recorded by
            Shri S.D.Tripathi, Judicial Magistrate, 1st Class, Bokaro in G.R.No.262 of 2004
            on 18.02.2010 was set aside and it was held by allowing the revision that there
            was sufficient material to proceed against the petitioners for the alleged offence
            under Section 3(i) (x) of the Scheduled Castes and Scheduled Tribes
            (Prevention of Atrocities) Act and that the offence was fit for commitment to the
            Court of the Special Judge, Bokaro for trial against the petitioners.
            2.            The prosecution story in short was that the informant O.P.No.2 by
            presenting a written report before the Bokaro Steel City Police Station narrated
            that on 17.03.2004 at about 6 a.m. when he reached near his Quarter No.352-
            III/B, he found that his neighbour petitioner- Akhouri Basant Teshwari Prasad
            with his wife of Quarter No.355- III/B suddenly started abusive language
            against him in his caste name by calling him 'Harizan Chamar' to which he
            asked him not to use such words whereupon both the husband and the wife
            held him by his collor and slapped him. When his wife came to rescue him on
            his alarm, she was also assaulted by them and in the same sequence the
            accused removed the chain made of gold worth Rs. 8000/- from her neck.
            Disclosing the genesis, the informant narrated that the petitioners used to
            throw garbage in the campus of his house to which he used to oppose their
            conduct but he was threatened by the accused Akhouri Basant Teshwari
            Prasad, that he was the leader of B.J.P. and he would get his son and
            daughter abducted. The informant alleged that the accused had been
            extending torture only because he was a Harizan. Bokaro Steel City P.S. Case
            No. 66 of 2004 was registered on 17.03.2004 for the alleged offence under
            Section 323/// of the Indian Penal Code on his written complaint.
            3.            Learned Counsel submitted that the I.O. after investigation of the
            case submitted charge-sheet under Sections 341/// of the Indian
            Penal Code against the petitioners and not under any provision of S.C. and
            S.T. (Prevention of Atrocities) Act. After submission of charge-sheet a petition
                                 2.
was filed on behalf of the informant Opposite Party No.2 before Smt. Kavita
Das, the then Judicial Magistrate, 1st Class, Bokaro in whose file the case
record was pending stating that from the facts of the case it would be reflected
that the case should have been lodged as also for the offence under S.C. &
S.T. (Prevention of Atrocities) Act, 1989 and further alleged that the
Investigating Officer did not submit charge-sheet for the said offence. The
petition further contained that the informant and his witness had no occasion to
submit before the Court for the addition of the offence under Section 3(i) (x) of
the S.C. and S.T. (Prevention of Atrocities) Act. The charge-sheet was
submitted on 30.10.2004 but this petition was filed by the informant before the
Court of the Judicial Magistrate on 10.03.2005. Shri Tripathi, the learned
Judicial Magistrate by the order dated 18.02.2010 observed that the
cognizance of the offence was taken on 03.11.2004 by the C.J.M., Bokaro for
the alleged offence under Sections 341/// of the Indian Penal Code
against the petitioners and ostensibly no cognizance was taken for the offence
under Section 3 (i) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989
against any of the accused. It was held that the informant had chosen wrong
forum for redressal of his grievance as he ought to have moved before the
Revisional Court for the redressal of the same, as such, his petition filed on
10.03.2005

was rejected. The petitioner then preferred a Criminal Revision No.60 of 2010 against the order impugned dated 18.02.2010 passed in G.R.No.262 of 2004 by which Shri S.D.Tripathi, Judicial Magistrate, 1st Class, Bokaro rejected the petition filed on behalf of the informant for addition of the relevant Sections of the offence under Section 3(i) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989.

4. Learned Counsel appearing for the petitioners assailed the order recorded in Criminal Revision wherein the learned 1st Additional Sessions Judge, Bokaro observed, "From perusal of the impugned order, I do find that the Ld. J.M. has clearly mentioned in the last paragraph that "it appears that in this case, altogether six witnesses have been examined. In this case, I.O. has not been examined. Place of occurrence is house of informant, this is not public place and no any offence committed by the accused persons u/s 3 & 4 of the S.C./ST Act." Thus I do find that the Ld. J.M. has not properly considered the evidence of prosecution witnesses, in which, they have specifically stated that the occurrence of this case, has taken place from the outside of the house of the informant i.e. public road at turning point. The Ld. J.M. has committed grave error to mention the P.O. is the house of the informant. Thus, I am of the considered view that the Ld. J.M. has not meticulously considered the evidence of prosecution witnesses in proper perspective and arrived on wrong conclusion, which is liable to be set aside."

5. From the perusal of the above observation recorded by the 1st 3. Additional Sessions Judge, Bokaro, I find that without appreciation of the provisions of law, as contained in Section 3(i) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 the learned Revisional Court observed that since the occurrence took place on a public place outside the house which was turning point of the public road, it would be deemed that the occurrence took place at a public place and therefore, the offence under Section 3(i) (x) would be attracted. I find that the provision of law is wholly misconceived by the learned Revisional Court.

6. Section 3(i) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 speaks;-

"whoever, not being a member of a scheduled caste or scheduled tribes intentionally insults or intimidates with intent to humiliate a member of a scheduled castes or a scheduled tribes in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but it may extend to five years and with fine."

7. The essence of the offence is that such insultation or intimidation must be committed within public view at any place, may be inside the house or on the road but here the informant was silent as to whether the entire occurrence took place within public view or not so as to attract his humiliation of intimidation, an offence under the Special Act.

8. In Gorige Pentaiah Vrs. State of Andhra Pradesh & Others, reported in (2008) 12 S.C.C. 531, the Apex Court observed, "According to the basic ingredients of Section 3(i) (x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."

9. It was observed by the Apex Court in Asmathunnisa Vrs. State of A.P. represented by the Public Prosecutor, reported in A.I.R. 2011 S.C. (Cri.) 1016, "This Court, in a number of cases has laid down the scope and ambit of the High Court's power under Section 482 of the Code of Criminal Procedure. Inherent power under section 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading 4. to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."

10. In the facts and circumstances, I find that the learned Revisional Court misconceived the statutory provision of law as also the principles laid down by the Apex Court of India and therefore, the order recorded by the Additional Sessions Judge in Criminal Revision No.60 of 2010 on 23.02.2011 cannot be sustained under law, accordingly, the same is set aside. I further find and hold that no offence prima faice is made out as against the petitioners under Section 3 (i) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 in the given facts and circumstances. The Trial Magistrate is directed to proceed with the trial for the charge proposed or framed against the petitioners without prejudice to the order recorded herein.

11. This petition is allowed.

[D.K.Sinha,J.] P.K.S./A.F.R.