Chattisgarh High Court
Gurmit Singh @ Raja Saluja vs State Of Chhattisgarh on 6 December, 2023
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 186 of 2020
• Gurmit Singh @ Raja Saluja S/o Shri Sewak Saluja Aged
About 23 Years R/o Lavan Road, Baloda Bazar District Baloda
Bazar Bhatapara Chhattisgarh.
---- Applicant
Versus
• State of Chhattisgarh Police Station City Kotwali Baloda Bazar
District Baloda Bazar Bhatapara Chhattisgarh.
---- Non-applicant
For Petitioner : Mr. Sunil Tripathi, Advocate
For Respondent : Mr. Srikant Kaushik, Panel Lawyer
For Complainant : Mr. Ashutosh Trivedi, Advocate SB: Hon'ble Mr. Justice Parth Prateem Sahu Order On Board 06/12/2023
1. Challenge in this revision petition is to the order dated 13.12.2019 passed by learned Special Sessions Judge (Atrocities) and also order dated 20.12.2019 directing for framing of charge against applicant, as also order dated 20.12.2019 framing charge under Section 153 (A) of the Indian Penal Code, 1860 (henceforth 'IPC') and Section 3 (1) (u) of the Scheduled Tribes and Scheduled Castes (Prevention of Atrocities) Act, 1989 (henceforth 'the Act of 1989') against the applicant.
2. Facts relevant for disposal of this criminal revision are that complainant lodged written complaint in concerned police 2 station alleging that applicant has posted a message in his Facebook account making casteist remarks that if selection had been made on qualification then bull wit ( cSy cqf}) like complainant would not have been selected, which hurt the feelings of not only complainant but also the entire tribal community. Based on said written complaint, police registered FIR against applicant for the offence punishable under Section 295A of IPC. After completion of investigation, police submitted final report under Section 173 CrPC for the offence under Section 295A 153 (A) & (B) of IPC and Section 3 (1) (u) of the Act of 1989. Vide order dated 13.12.2019, the Court below ordered for framing of charges under Section 153A of IPC and Section 3 (1) (u) of the Act of 1989 and on 20.12.2019 charges were accordingly framed, the same were read over and explained to applicant to which he pleaded not guilty and claimed to be tried.
3. Learned counsel for applicant submits that the Court below without there being any cogent and clinching material in charge sheet, has framed the charges against applicant, which is per se illegal. There is no prima facie ingredients of commission of offence under Section 3 (1) (u) of the Act of 1989 because there is no mention of intention to insult the person who belongs to a reserved category. Facebook message, which is basis for registering FIR against applicant, only shows opinion of incompetency of a person and it is not used to humiliate any person belonging to scheduled caste or 3 scheduled tribe in a public place. Facebook message cannot be treated to be a message in the public platform. He next contended that ingredients of Section 153A of IPC is not appearing in the entire charge sheet as there is no mention of promoting enmity between different group on grounds of religion, race, place of birth, residence, language etc. and doing acts as prejudicial to maintenance of harmony. In support of his contention with regard to framing of charge under Section 3 (1) (u) of the Act of 1989, he placed reliance on the decision of Hon'ble Supreme Court in case of Pramod Suryabhan Pawar vs. State of Maharashtra & anr, reported in (2019) 9 SCC 608.
4. On the other hand, learned State Counsel opposing submissions of learned counsel for applicant, would submit that the material available in the charge sheet prima facie established commission of offence under Section 3 (1) (u) of the Act of 1989 and Section 153A of IPC against the applicant. In support of his contention, he read out the contents of FIR as also the message posted in Facebook, which is forming part of charge sheet.
5. Learned counsel for the Complainant would submit that Facebook is the most popular social medial platform in the country and with intention to malign status of complainant, applicant had posted message in his Facebook account relating to complainant casting doubt on his intelligence and 4 working capacity and thereby attempted to tarnish the image and reputation of complainant as also his community in the eyes of public. He submits that messages posted on Facebook account, the same can be called 'public place' because all the friends of Facebook account of applicant will have access to those messages. Decision in case of Pramod Suryabhan Pawar (supra) relied upon by learned counsel for applicant is on different facts and therefore, no benefit of the same can be extended to applicant.
6. I have heard learned counsel for respective parties and perused the documents available in record of revision.
7. Before proceeding further, I find it appropriate to extract relevant provisions under which charges are framed against applicant i.e. Section 153A of IPC and Section3 (1) (u) of the Act of 1989.
8. Section 153 of IPA reads thus:-
"153A. [153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--
(1) Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, 5 racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.--(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
9. Section 3 (1) (u) of the Act of 1989 reads thus:-
"(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-
will against members of the Scheduled Castes or the Scheduled Tribes."
10. I have gone through the contents of FIR, message posted in Facebook account, written complaint forming part of charge sheet as also statement of witnesses recorded under Section 161 of CrPC.
11. In the message posted on Facebook account, the applicant commenting upon the complainant has used the words 'on account of his reservation' and 'bull wit' (cSy cqf}). Aforesaid message is not sent on Whatsapp account of complainant, 6 rather it is posted in Facebook account of applicant, which is accessible to all his friends etc.
12. Hon'ble Supreme Court in case of Amit Kapoor vs. Ramesh Chander & anr, reported in (2012) 9 SCC 460 has laid down the guidelines for considering the challenge to framing of charge and the same are extracted below for ready reference:-
"27.Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of 7 rare cases.
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.
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. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7 The process of the Court cannot be permitted 8 to be used for an oblique or ultimate/ulterior purpose.
27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 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.
27.10.It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11.Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or 9 that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14 Where the charge-sheet, report under Section 173 (2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
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 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."
13. In case of Chitresh Kumar Chopra v. State (Government of NCT Delhi), reported in (2009) 16 SCC 605, has observed in Para-25 as under:-
"25.It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or 10 offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja & Ors, (1990) 4 SCC 76)."
14. In case of State of Maharashtra v. Som Nath Thapa, reported in (1996) 4 SCC 659, the Supreme Court explaining the meaning of the word 'presume' 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 commuted the offence. It is apparent that at the stage of framing of 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"."
15. In case of Supriya Jain vs. State of Haryana & another, reported in (2023) 7 SCC 711, relying on its earlier decision in case of Amit Kapoor (supra) has observed thus:-
"18.Applying the broad principles as enunciated by 11 this Court, we hold that it is not one of those rare cases where the uncontroverted allegations appearing from the materials on record notwithstanding, it can successfully be contended that even no prima facie opinion can be formed pointing to commission of any offence by the petitioner. It is trite that the conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into and that such an offence, if actually committed, would be the subject-matter of a separate charge. The allegations that the petitioner was found counting the cash received by the principal accused from the second respondent in the presence of a listed witness and that she conspired with her sister, the principal accused, to cheat and defraud the second respondent, persuade us to record that involvement of the petitioner, howsoever limited, cannot be ruled out at this stage and, therefore, the trial ought to be permitted to proceed and she obliged to stand trial.
19. For the reasons aforesaid, we uphold the impugned judgment and order of the High Court dismissing the petition under section 482 CrPC. The trial court may proceed with the trial uninfluenced by any observation made in this judgment and order which is for the purpose of a decision on the appeal."
16. From the above decisions, it is clear that the power to interfere with order of framing charge is to be exercised very sparingly and with circumspection and that too in rarest of rare cases. Unless it emerges that the trial court has committed any patent illegality, impropriety or incorrectness, the Court should 12 not interfere in exercise of its revisional jurisdiction. No meticulous examination of material/evidence is needed for considering whether the case would end in conviction or not at the stage of quashing of charge.
17. Considering the entirety of facts and circumstances of case, material available in the charge sheet, in particular contents of complaint, message alleged to have been posted in Facebook account of applicant, I do not find any good ground to interfere with the order impugned framing charge against the applicant. Accordingly, the revision is liable to be and is hereby dismissed.
Sd/-
(Parth Prateem Sahu) Judge roshan/-