Allahabad High Court
Indramani Yadav And 6 Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 27 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 28 Case :- CRIMINAL APPEAL No. - 842 of 2023 Appellant :- Indramani Yadav And 6 Others Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Affairs, Lko. And Another Counsel for Appellant :- Sameer Singh,Pawan Kumar Pandey,Shashank Singh Counsel for Respondent :- G.A.,Vikas Verma Hon'ble Shree Prakash Singh,J.
(1.) Heard Shri Sameer Singh, Advocate assisted by Shri Shashank Singh, learned Counsel for the appellants, Shri Anirudh Kumar Singh, learned A.G.A.-I for the State.
(2.) This criminal appeal under Section 14A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed with a prayer to quash the summoning order dated 04.02.2023 under Section 147, 323, 326-A, 504 of IPC and 3(1)X SC/ST Act, 1989 arising out of Complaint Case No. 118 of 2019 (Jagannath Vs. Sitaram & Ors.) pending before the learned Special Judge, SC/ST Act, Ambedkar Nagar and the entire criminal proceedings arising out of the aforementioned complaint case.
(3.) Learned Counsel appearing for the appellants submit that the appellants are innocent and have falsely been implicated in the instant matter. He submits that the First Information Report was lodged on 09.01.2017 and thereafter, the Investigating Officer conducted investigation and found no material against the appellant so far as the allegations leveled in the First Information Report is concerned and thus the final report was submitted on 05.07.2017. On such final report, the complainant filed the protest application on 06.06.2018 and the same was treated as a complaint case and the Magistrate and learned trial Court has recorded the statement of the complainant as well as the witnesses under Section 200 & 202 of the Cr.P.C. He has drawn attention of this Court towards the protest application, which reveals that the allegation is regarding the fact that the accused persons attacked over the injured as well as other family members and thereafter, they entered into the house of the complainant and have beaten and poured certain inflammable substance over the son of the complainant and as a result, he got burnt.
(4.) The contention of the Counsel for the complainant is that along with other sections of the IPC, the Magistrate has summoned the appellants under Section 3(1)X of the SC/ST Act. He has further drawn attention of this Court towards the statement of the complainant, which has been annexed on Page - 100 and has referred that the complainant himself has stated before the trial Court that the incident took place inside of the house and after hue and cry of the complainant, the village people came over there and the appellants were rescued. He further submits that the learned trial Court has ignored the fact that the incident did not take place in public view and therefore, the summons under Section 3(1)X of the SC/ST Act could not have been issued against the appellants.
(5.) In support of his contention, he has placed reliance on a judgment reported in (2020) 10 SCC 710; Hitesh Verma Vs. State of Uttarakhand & Anr.; and has referred Paragraphs 14, 17 & 18 of the said case. Paragraphs 14, 17 & 18 of the judgment are quoted hereunder:-
"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh V. State. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public p;ace would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
17. In another judgment reported as Khuman Singh V. State of M.P., this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:-
"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."
18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.
(6.) Relying upon the aforesaid judgment, he submits that the Apex Court has drawn distinction between the expression "public place" "and in any place within public view" and it has been held that if an offence is committed outside the building etc. or in the lawn, outside a house and the lawn can be seen by someone from the road or a lane outside the boundary wall, then the lawn would certainly be a place within public view and thus it is borne out from the aforesaid ratio that so far as the offences under SC/ST Act is concerned, that is to be scrutinized on the aforesaid test.
(7.) He has also placed reliance on the judgment rendered in Writ Petition (Crl.) No. 1593 of 2006 & Criminal M.A. No. 6859 of 2006; Ashwani Kumar Vs. State & Anr.; and has referred paragraph 9 & 17 of the judgment. Paragraph 9 & 17 of the said judgment is quoted herein below:-
" 9. Proposition of law thus is clear. Simply because Section 3(1)X of SC/ST Act finds mention in the FIR by itself cannot be a ground to conclude that prima facie an offence under the along said Section of SC/ST Act has been made out. Judicial scrutiny of the documents in suchlike cases is permissible to evaluate whether the material relied upon by the prosecution revealed the existence of basic ingredients of the offence or not. For that limited purpose, the Court can sift and weigh the material placed before it, before examining the question whether on the allegations made in the FIR, prima facie any offence under Section 3(1)X of SC/ST Act is made out.
....17. Expression "public" is a poli-morphus word which has different meanings, which is used as noun or as an adjective. As noun, "public" means a body of people at large; the community at large, without reference to the geographical limits of any corporation like a city, town or country, the people; the whole body politics, or all the citizens of the state. In other words, the word public does not mean all the people or most of the people nor very many of the people of a place, but so many of them as contradistinguishes them from a few. Therefore, public means inhabitants of a particular place, may be all or few or the people of the neighbourhood. As an adjective, 'public' would have meaning upon the subjects to which it is applied. SC/ST Act has been enacted with a view to protect a weaker section of the society from various kinds of atrocities that might be perpetrated against SC/STs which find enumeration in Section 3 of the SC/ST Act as constituting an offence. Court has to keep in mind that offence under the SC/ST Act are quite grave and provide stringent punishment and therefore, stronger proof is required. Court has to adopt an interpretation which suppresses or evades the mischief which might have been played and advances the object of the Act. Therefore, 'public view' appearing in Section 3(1)X of SC/ST Act has to be interpreted to mean the presence of the public persons, however small may be, and those persons are independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant have to be excluded from the definition of 'public view'."
(8.) Referring the aforesaid judgment, he added that simply because Section of SC/ST Act finds mention in the FIR, it cannot be a ground to reach at conclusion that, prima facie, an offence is made out but the judicial scrutiny of the documents in such like cases is required to evaluate , whether the material relied upon by the prosecution reveals the existence of the basic ingredients of the offence or not?
(9.) He also contends that bare reading of the order passed by the trial Court, which is impugned with this appeal, is evident that merely on the basis of the assertion and without scrutinizing the evidence, the same has been passed. The complainant himself has stated that certain people attacked over the house and after cry of the family members, the village persons came there and thus, the ingredients of Section 3(1)X do not attract. Concluding his arguments, he added that even the statement of the complainant is also evident that the incident has taken place inside of the house which is neither public place nor place with public view, and, therefore, the order dated 04.02.2023 is without the application of judicial mind and considering the law enunciated by the Apex Court, the same may be set aside.
(10.) On the other hand, learned Counsel appearing for the complainant has vehemently opposed the contentions aforesaid and submits that the statement has been recorded by the trial Court under Sections 200 & 202 of Cr.P.C. which clearly shows that the offence has been committed by the appellants and whereby, the trial Court considering the same has issued the summon under Section 3(1)X of SC/ST Act along with Sections 147, 323, 326A & 504 of IPC. He has drawn attention of this Court towards the impugned order and submits that the trial Court has considered the statement of the complainant as well as the witnesses under Sections 200 & 202 of Cr.P.C. respectively and also given its finding and thus, the summoning order, issued against the appellants, do not assail any infirmity and erroneousness and, therefore, the instant appeal has no merit and is liable to be dismissed.
(11.) Per Contra, learned A.G.A. appearing for the State has also controverted the contention of Counsel for the appellants and added that after recording the statement of the complainant and the witnesses, the order has been passed thereby giving the reasonings and, thus, no interference is warranted.
(12.) Having heard learned Counsel for the parties and after perusal of the material placed on record, it transpires that initially the FIR was lodged on 09.01.2017 against the appellants and after investigation, when it was found by the investigating officer that there is no substantive material or evidence against the appellants, the final report was submitted and when the protest application was filed on 06.06.2018, the Magistrate, treating the same as a complaint case, has recorded the statements of the complainant as well as the witnesses and issued summons under Section 3(1)X of SC/ST Act including other sections of IPC.
(13.) When this Court examines the statement of the complainant, it reveals that the complainant himself had admitted that the incident had taken place inside of the house and it has been further stated that the accused persons came and attacked over the house and entered into the same and started beating and on the cry of family members, the village persons came over there and thus, prima facie, there seems to be no evidence with respect to the fact that certain other persons were there than the family members who have seen or heard the incident and thus, prima facie the alleged occurrence cannot said to be happened in public place or place within public view?
(14.) This Court has also considered the ratio of the judgment of Apex Court rendered in the case of Hitesh Verma (Supra), which clearly says that if the incident took place outside the area of the house or in the lawn but unless that access is within of the public, the same cannot be said to be happened at public view or public place. The reliance has also been placed on a judgment rendered in the case of Ashwani Kumar (Supra) wherein it has been held that only mentioning the sections of SC/ST Act cannot be a ground to conclude committal of an offence under the aforesaid Act, unless the judicial scrutiny is done.
(15.) After the aforesaid submissions and discussions, it emerges that Hon'ble the Apex Court has held in very clear words that hurling abuses naming the caste in the public place or at the place of public view, would only constitute an offence under SC/ST Act and unless it is established, no criminal proceeding can go on in such cases and for reaching on the conclusion, the trial Court has to judicially scrutinize the factum that whether the words spoken are in the public view or public place. So far as the present case is concerned, on cry of the family members of the complainant, the village persons reached and they saw that the accused persons are beating the family members though the abuses were hurled inside of the house, which is admittedly not a public place.
(16.) Considering the aforesaid submissions and discussions, it is decipherable that the learned trial Court did not apply its judicial mind while issuing the summons against the applicants under Section 3(1)X of the SC/ST Act. Resultantly, the summoning order dated 04.02.2023 is set aside to the extent of issuance of summons under Section 3(1)X of the SC/ST Act.
(17.) It is directed that the trial Court shall proceed accordingly.
(18.) The appeal is hereby partly allowed with the aforesaid observations.
Order Date :- 27.4.2023 Lokesh Kumar