Delhi District Court
State vs . Kamal Etc. on 1 May, 2014
State Vs. Kamal Etc. FIR No. : 139/2014 U/s : 323/341/354/354-A/354-B/34 IPC & 3/XI SC/ST (PAO) Act. 1989 P.S. Model Town 01-05-2014 Present : Sh. Girish Giri, Ld. Addl. PP for the State Accused Kamal produced from J.C. Accused Manpreet is present on bail. Counsel for the accused persons. ORDER ON CHARGE 1.
Arguments on charge heard. Record Perused.
2. The present FIR was registered on the complainant of Ms. Anuinao Ragui lodged by her on 28-02-21014. The complaint reads as follows :
"With due respect, I the undersigned lodge this complaint that I was assaulted, eve teased, molested. The incident happened at around 10 -10:30 p.m when I was going back to my P.G. with my cousin brother near the Vijay Nagar park area. Two guys were standing (one wearing turban the other without turban). The other boy without the turban was pissing and when we crossed them he shifted his position so that his dick will be visible to us and he started giving lewd comments (Chinki, nepali, prostitute/whore). We ignored but he raised his voice and started passing more lewd comments so my cousin brother requested those guys just to be careful as there was a woman (Me) with him and not to give such comments after Sessions Case No. 35/14 Page 1 of 13 that he started beating my brother so badly that he fainted. He was still beating my cousin brother even after he fainted so I went and requested the other guy to help and he replied "Sister what can I do my friend is drunk" so I went to help my fainted cousin brother from being beaten up more and then he started slapping me and started molesting me. (He started touching my boobs again and again and even pulled down my dress that I was wearing). So I started screaming so the crowd started gathering, the other punjabi guy (turban) who was just the spectator of that incident let him escaped from the scene. They even blocked my way out and threatened me. I could not call the Police helpline 100/1093 but the student from the North East informed to the police. Therefore, I request you to book the culprit and punish him, I want justice at the earliest. I request the law to take proper action so that not any woman will face such tragic and traumatic moment. I belong to schedule tribe that is why I was molested. I anticipate positive response."
3. It is urged by the Ld. Addl. PP for the state that the allegations against the accused persons are grave and serious in nature. It is further submitted that the accused Kamal had addressed the victim as "Chinki". It is further submitted by the Ld. Addl. PP for the state that the accused had the knowledge that the victim belonged to ST category and despite that he used derogative remarks against her; assaulted her and outraged her modesty and is liable to be charged under sections 3 (1) (iii) / 3(1)(x) / 3(1) (xi) of the SC and ST Act. It Sessions Case No. 35/14 Page 2 of 13 is further submitted that accused Manpreet is liable to be charged for the offence U/s 3 (2) (vi) of the SC/ST Act.
4. On the other hand, it is submitted by the Ld counsel for accused Kamal that accused has been falsely implicated. It is further submitted by him that no offence U/s 3 (1) (iii) / 3(1)(x) / 3(1) (xi) of the SC and ST Act are made out as it is no where mentioned in the complaint that the accused had the knowledge that the victim belonged to ST category. It is further submitted that accused never addressed the complainant as "Chinki" and even if at this stage the complainant is to be believed the word "Chinki" cannot be said to be a castiest slur.
5. It is submitted by the Ld counsel for accused Manpreet that he has been falsely implicated. It is further submitted by him that there is not even an iota of evidence against the accused. It is further submitted by him that accused had rather addressed the victim as "sister". So there was no question of his having any intention to dishonour the complainant. It is further submitted that no offence U/s 3 (2) (vi) of the SC/ST Act is made out against the accused. It is further urged that there are no allegations of any type of overt act against the accused.
6. Now it is to be seen whether the accused Kamal is liable to be charged U/s 3 (1) (iii) / 3(1)(x) / 3(1) (xi) of the SC and ST Act. It has been urged by the counsel for the accused Kamal that nowhere in the first complaint made by the complainant on 28/02/14, it has been mentioned that the accused had the knowledge that the complainant belonged to the ST category. It is further submitted by the Ld counsel for the accused that the complainant has no where mentioned in her complaint dated 28-02-2014 that the accused was not SC or ST and so the complaint lacks in basic ingredient of the offence.
7. To counter these allegations Ld. Addl. PP for the state had argued that looking into the special and distinct features of the complainant, the accused Sessions Case No. 35/14 Page 3 of 13 can be said to have the knowledge that the complainant belonged to ST category and despite that the accused molested and gave beatings to her and her cousin brother. It is further urged by the Ld. Add. PP for the state that the accused has also called the complainant "Chinki." It is further submitted by the Ld. APP that the complainant has mentioned in her complaint dated 28-02- 2014 that since she belonged to Scheduled Tribe that is why she was molested.
8. Section 3 (1) (iii) of the SC and ST Act reads as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;"
9. Section 3 (1) (x) of the SC and ST Act reads as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- intentionally insults or intimidates with intent to humiliate a member of a Scheduled caste or a Scheduled Tribe in any place within public view;"
10. Section 3 (1) (xi) of the SC and ST Act reads as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;"
11. Now as far as calling somebody as "Chinki" cannot be said to be a castiest word which is punishable under the SC and ST Act. I have perused the Sessions Case No. 35/14 Page 4 of 13 first complaint made by the victim/complainant on 28/02/2014 and in that complaint she has stated as follows : "I belonged to scheduled tribe that is why I was molested." No where in the entire complaint the complainant has mentioned that the accused was not a member of Scheduled Caste and Scheduled Tribe, by simply alleging in the complaint that the complainant belonged to a Scheduled Tribe that is why she was molested is not enough to bring the case within the purview of Section 3 of the SC and ST Act. Reliance can be placed upon Gorige Pentaiah Vs. State of A.P. & Others, 2009 CRI. L.J. 350 in which it was held as follows :
(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989), S. 3 (1) (x)
- Offence of atrocities - Complainant alleging that accused abused him with name of his caste- No allegations in compliant that accused was not S.C. or S.T. - Allegations of intentional humiliation in place within public view also absent - Compliant lacks in basic ingredients of offence -Continuance of proceedings would be abuse of process of law.
12. It has also been held in Ram Babu Vs. State of M.P. 2011 (2) Crimes 193 (M.P.) that:
On giving my thoughtful consideration to the above rival arguments advanced by learned counsel for both the parties, I find substance in the argument advanced on behalf of the appellant. According to Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the complainant (PW 1) ought to have alleged that the appellant - accused was not a Sessions Case No. 35/14 Page 5 of 13 member of the Scheduled Caste or a Scheduled Tribe and that she was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. When the basic ingredients of the offence are missing in the complaint and the evidence that was produced by the prosecution, the conviction against the appellant for offence under section 3(1) (xi) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained.
13. So from the perusal of the complaint dated 28/02/2014, there are no allegations that accused was not S.C. or S.T. So in these circumstances, the Compliant lacks in basic ingredients of offence. So no offence U/s 3 (1)
(iii) / 3(1)(x) / 3(1) (xi) of the SC and ST (Prevention of Atrocities) Act, 1989 is made out against accused Kamal. As far as the contention of the Ld. Addl. PP for the state that on account of distinct features of complainant, the accused can be imputed to the knowledge that the complainant belonged to SC or ST category, to my mind this argument has no force in it because what the complainant has to allege in the complaint is that the accused did not belong to SC or ST category and it is not the question of knowledge of accused about complainant being SC or ST. He is, therefore discharged of the offence U/s 3 (1) (iii) / 3(1)(x) / 3(1) (xi) of the SC and ST (Prevention of Atrocities) Act, 1989.
14. Now let me see whether the accused Kamal is liable to be charged U/s 323/341/354/354A/354B IPC.
15. Section 323 IPC reads as follows :
323. Punishment for Voluntarily causing hurt.- Whoever, except in the case provided for by Section, 334, voluntarily causes, Sessions Case No. 35/14 Page 6 of 13 hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
16. Section 341 IPC reads as follows :
341. Punishment for wrongful restraint.- Whoever, wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
17. Section 354 IPC reads as follows :
354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever, assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
18. Section 354 A IPC reads as follows :
354-A. Assault or use of Criminal force to woman with intent to disrobe her.- Whoever, assaults or uses criminal force to any woman or abets or conspires to assault or uses such criminal force to any woman intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of the woman by disrobing or compel her to be naked on any public place, shall be punished with imprisonment of either Sessions Case No. 35/14 Page 7 of 13 description for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine"
19. Section 354 B IPC reads as follows :
354 B :- Public disrobing of woman. -
Assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any pubic place Imprisonment not less than three years but which may extend to seven years and with fine.
20. As far as accused Kamal is concerned, there are allegations that he had given beatings to the complainant as well her cousin brother. There are also allegations that he has misbehaved with the complainant; showed his private part; passed lewd remarks and physically touched the complainant. It is also alleged against accused Kamal that he had wrongfully restrained the complainant; voluntarily caused hurt to her; assaulted on the person of complainant and also used criminal force against her and outraged modesty by touching her boobs again and again and even pulled down her dress which she was wearing.
21. It is settled proposition of law that at the time of framing of the charge only grave suspicion is to be seen and when grave suspicion arises charge can be framed against the accused. Reliance can be placed upon Alpana Dass Vs. CIT, 132 (2006) DLT 85 wherein it was held that at the time of framing of charge the Court is not required to marshal any evidence. It is only on the basis of grave suspicion alone that the charge can be framed.
22. So looking into the allegations against the accused which are grave and serious in nature and also from the perusal of the charge sheet, statement of the witness recorded and other material available on record a primafacie Sessions Case No. 35/14 Page 8 of 13 case U/s 323/354/354A/354B IPC and U/s 341/34 IPC is made out against accused Kamal and he is liable to charged under these sections of law.
23. Now as far as accused Manpreet is concerned, the allegations against him are that he was an on looker and when the complainant asked accused Manpreet to help her he replied "sister what I can do my friend is drunk". The allegations against accused Manjeet are only that he wrongfully restrained the way of complainant so he is only liable to be charged U/s 341/34 IPC.
24. It is submitted by the Ld. Addl. PP for the state that accused Manpreet is liable to be charged for the offence U/s 3 (2) (vi) of the SC/ST Act. Section 3 (2) (vi) of the SC and ST Act reads as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- knowingly or having reason to believe that an offence has been committed under this Chapoter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence;"
25. In the present case there is nothing on record to suggest that accused Manpreet caused any evidence relating to the present case to disappear or he gave any false information and ingredient of Section 3 of the SC & ST (Prevention of Atrocities) Act, 1989 are also not fulfilled. So no charge U/s 3 (2) )
(vi) of the SC & ST (Prevention of Atrocities ) Act, 1989 is made out against accused Manpreet.
26. Arguments on the bail application of accused Kamal were also heard.
Sessions Case No. 35/14 Page 9 of 13It is submitted by the counsel for the accused Kamal that the accused has been falsely implicated and he is in J.C since 01-03-2014.
27. On the other hand, it is submitted by the Ld. Addl. PP for the state that the allegations against the accused are grave and serious in nature and the complainant is yet to be examined in this case so the accused is not entitled to bail.
28. In the instant case the allegations against the accused which have already been discussed hereinabove are grave and serious in nature. The case is at its initial stage and the complainant and other public witnesses are yet to be examined, so no ground for bail is made out, the bail application is, therefore dismissed.
29. Since all the said offences under which accused Kamal and accused Manpreet are liable to be charged are triable by the Court of Magistrate, so the case is remanded back to the Court of Ld. A.C.M.M. North Rohini, for marking the same to the court of concerned Magistrate. Accused Kamal who is in J.C is directed to be produced before the court of Ld. A.C.M.M. North, Rohini on 12- 05-2014 and accused Manpreet who is on bail is also directed to appear before the court of Ld. A.C.M.M. North, Rohini on 12-05-2014. Ahlmad is directed to send the file complete in all respect to the court of Ld. A.C.M.M. North Rohini on or before 12-05-2014.
(Announced in the open court today i.e. on 01-05-2014.) (RAJNISH BHATNAGAR) ASJ-02, NORTH DISTRICT ROHINI COURTS : DELHI 01-05-2014 Sessions Case No. 35/14 Page 10 of 13