Madhya Pradesh High Court
Sanad Lodhi vs Summabai on 1 March, 2018
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HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No.2382/2011
Sanad Lodhi...................................................................Petitioner
Versus
Summabai and another..............................................Respondents
For the petitioner : Mr. Sushil Kumar Sharma, Advocate.
For the respondent : None.
no.1
For the respondent : Mr. D. K. Paroha, Government Advocate.
no.2
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Present: HON'BLE SHRI JUSTICE ATUL SREEDHARAN
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ORDER
(1.3.2018) The present petition has been filed by the petitioner herein aggrieved by the order dated 30.8.2010 passed by the Court of the learned Chief Judicial Magistrate, Mandla, registering a complaint case against the petitioner herein after taking cognizance of offences under sections 294 and 354 IPC and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as "the Act"). Hence, this petition has been filed for quashing the registration of the complaint case.
2. The respondent no.1/complainant was issued notice earlier in the year 2011 itself. However, she did not register appearance through counsel or in personal capacity. However, by way of abundant caution, because the respondent no.1/complainant is a lady from 2 the depressed classes of the society, notice was once again issued to her by this court on 25.1.2018 and the office report of 10.2.2018 reflects that the notice was served on the respondent no.1/complainant. Today also, no one appears on behalf of the respondent no.1/complainant.
3. The facts leading to the present petition relate to an incident which had taken place on 15.2.2007. As per the complaint case, the respondent no.1/complainant and her children, while passing through a dolomite mine, were confronted by the petitioner herein who allegedly offered money to the respondent no.1/complainant to have a relationship with him and when she refused, he is stated to have thrown her on the ground and inappropriately touched her breasts and upon her shouting for help, two witnesses, Munnalal and Mewalal, came to the scene of occurrence and saw the respondent no.1/complainant being touched inappropriately by the petitioner herein and that she had suffered injuries to her wrist on account of her bangles breaking in the scuffle. The police complaint that was given by the respondent no.1/complainant was registered only under section 324 IPC as, according to the police, no allegation was made by the complainant/respondent no.1, of the petitioner having touched her anywhere on the body inappropriately. In her complaint to the police dated 15.2.2007 she is stated to have said that the petitioner herein grappled with her and threw her on the ground on account of which she suffered the wrist injuries. She is also stated to have got her medical examination done and the doctor has opined about the abrasion 3 injuries on her wrist being within 12 to 14 hours before the medical examination.
4. The respondent no.1/complainant in her complaint has stated that the police did not faithfully record her FIR on 15.2.2007 and a copy of the report itself was given to her belatedly on 24.2.2007 upon which she came to know that her complaint was watered down and the graver offence under section 354 IPC was not included. Two months thereafter the complainant has filed the present complaint case. In para 2 of the complaint case, she has levelled allegations against the police that they did not faithfully reproduce her complaint given on 15.2.2007 and that they had registered it only under section 324 IPC whereas it should have been registered for the graver offence under section 354 IPC and also the relevant provisions of the SC/ST Act. It is relevant to mention here that in the complaint filed by the respondent no.1/ complainant, there is no specific averment to the effect that the accused/petitioner herein does not belong to the SC/ST community and that he knows that the victim (respondent no.1/complainant) is from the SC/ST community. The relevance of this shall be discussed later.
5. Learned counsel for the petitioner has drawn the attention of this court to Annexure A4 at page 13, which is the report of the police, which was called for by the learned court below by way of an enquiry. The police report is dated 23.4.2007. In the report, the police has observed that the petitioner herein had confronted the respondent no.1/complainant on the way and entered into a scuffle 4 with her and pushed her on account of which she fell on the ground and suffered injuries on her wrist. It further states that she was medically examined and the doctor had opined that the injuries suffered by her are caused by a sharp and hard object. Therefore, only the offence under section 324 IPC was registered. In that case, the charge-sheet was filed against the petitioner herein on 26.2.2007 itself.
6. Learned counsel for the petitioner has submitted that the police report clearly reveals that the subsequent complaint case has been filed by the respondent no.1/complainant only to harass the petitioner herein.
7. Learned counsel for the State, who is the respondent no.2 in this case, on the other hand, while opposing the petition has drawn the attention of this court to the complaint which is Annexure A2 from pages 8 to 9 and has stated that the respondent no.1/complainant has levelled clear-cut allegations against the petitioner herein of having committed the offence under section 354 IPC also. Thereafter, the learned counsel for the State has drawn the attention of this court to the statements of the witnesses in the complaint case where the respondent no.1/complainant herself has been examined as complaint witness no.1 and the witnesses Mewalal and Kummu have been examined as complainant-witness nos.2 and 3 at the stage of proceedings under sections 200 and 202 Cr.P.C before the learned trial court.
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8. Learned counsel for the State has submitted that these statements clearly go to show the commission of an offence under section 354 IPC and under the provisions of the SC/ST Act. He has further stated that, at this stage, all that this court has to see is whether a prima facie case is made out against the petitioner herein and if the same is made out, no interference would be called for in the exercise of power under section 482 Cr.P.C. by this court. Per contra, learned counsel for the petitioner has drawn the attention of this court to Annexure A3 from pages 10 to 12, which is the order-dated 16.7.2009 passed in Criminal Case No.769/2007 by the Court of the learned Chief Judicial Magistrate, Mandla, whereby the petitioner herein was acquitted in the police case registered against him on the basis of the complaint preferred by the respondent no.1/complainant relating to the same incident on 15.2.2007.
9. Heard the learned counsel for the parties and perused the documents filed in the case.
10. The undisputed facts in this case are that the incident relates to 15.2.2007. However, there are two versions to that incident. As per the police, the version given to them by the respondent no.1/ complainant herself was that there was an altercation and a scuffle between the petitioner herein and the respondent no.1/ complainant after which the petitioner herein is alleged to have pushed her on the ground and upon falling, she suffered certain injuries. However, in the version of the respondent no.1/complainant in the complaint case, goes two steps beyond it 6 where she has stated that the petitioner herein has touched her inappropriately on her body and also abused her using caste based words. As stated hereinabove, there are two witnesses who have supported this allegation before the learned trial court in the complaint case in their statements under sections 200 and 202 Cr.P.C. The questions posed by the facts of this case before this court are (a) if the petitioner herein is entitled to the protection of section 300 Cr.P.C. that he shall not be tried for the same offence twice, and (b) whether the offences under the Special Act are at all made out against the petitioner herein.
11. The police report, which was called for by the learned trial court before issuing process to the petitioner herein, clearly goes to reveal that in the complaint given to them by the respondent no.1/ complainant there were no allegations which would constitute an offence under section 354 IPC or under the provisions of the Act. Thereafter, the learned trial court which tried the petitioner herein for the offence under section 324 IPC has acquitted the petitioner herein. The respondent no.1/complainant was a witness in that case and she has reiterated not only the allegation relating to the offence under section 324 IPC but also those allegations which would have constituted the offences under section 354 IPC and under the provisions of the SC/ST Act. The witnesses in the complaint case also testified as witnesses before the learned trial court. The learned trial court has given cogent reasons for disbelieving the respondent no.1/complainant and the witnesses with regard to the incident. The learned trial court has also 7 observed that the respondent no.1/complainant has given an exaggerated version of the incident and has also come to the finding that the witnesses arrived at the scene of occurrence after the incident as they stated so in their cross-examinations. Thereafter, the petitioner herein was acquitted as the charge under section 324 IPC stood not proved against him. The question that arises here is as the trial in the police case was restricted only for the offence under section 324 IPC, would the petitioner herein get the benefit of section 300 Cr.P.C. even though the trial in the police case was not for the offence under section 354 IPC and for the offences under the Special Act.
12. In the considered opinion of this court, the petitioner herein would be entitled to the protection under section 300 Cr.P.C. even though he was not charged for the offence under section 354 IPC and the offence under the Act but as the entire gamut of facts examined by the Ld. Trial Court, pertain to the offence under section 354 of IPC and the provisions under the SC/ST Act. The fact remains that the allegations relating to the offences under section 354 IPC and the SC/ST Act were also appreciated by the learned trial court while passing the order of acquittal on 16.7.2009. That order has become final and has never been challenged in appeal either by the State or by the respondent no.1/complainant, as so stated by the learned counsel for the petitioner. Learned counsel for the State is unable to refute the same on account of lack of information whether any such appeal was preferred by the State or the respondent no.1/ complainant.
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13. As regards the allegations under the provisions of the SC/ST Act, Hon'ble the Supreme Court in Gorige pentaiah Vs. State of Andhra Pradesh (2008) 12 SCC 531 has held that in a complaint case relating to offences under the Special Act, it is absolutely imperative that specific allegation be levelled against the accused that the accused did not belong to the SC/ST community and that the abuses were hurled by the petitioner in order to humiliate, insult or intimidate the respondent. Upon examining the complaint in this case, there are no allegations as stated hereinabove earlier specifying that the petitioner herein is not a member of the SC/ST community and that the actions attributable to him was done with the intent to intimidate or humiliate the respondent no.1/ complainant.
14. Under the circumstances, the petition is allowed and further proceedings in Criminal Case No.1571/2010 pending in the Court of the learned Chief Judicial Magistrate, Mandla, are quashed.
(Atul Sreedharan) Judge ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2018.03.05 10:57:36 +05'30'