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3. Admittedly, the victim is a member of Scheduled Caste community. The caste of the 2nd respondent is in dispute. According to the petitioner, the 2nd respondent is a Christian, whereas according to the 2nd respondent, he belongs to Hindu Parayan Community. The petitioner alleged that since the 2 nd respondent is a Christian and the victim belongs to Scheduled Caste, the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the SC/ST(PoA) Act) is attracted. Alleging inaction on the part of the investigating officer in incorporating the offence u/s 3(2)(v) of the SC/ST(PoA) Act in the final report, the petitioner approached this court by filing WP(Crl) No.111/2022. This Bench as per the judgment dated 7th March, 2022 dismissed the said writ petition. In appeal, the Division Bench (WA No.502/2022) set aside the judgment of the Single Bench vacating all the observations in the judgment and granting liberty to the petitioner to move the court below with appropriate petition seeking amendment of the charge. Thereafter, the petitioner moved the court below and filed Annexure 1 petition seeking alteration of charge and to add the offence u/s 3(2)(v) of the SC/ST(PoA) Act as well. The court below after hearing both sides dismissed Annexure 1 petition as per the impugned order which is challenged in this revision petition.

4. I have heard Sri.M.R.Rajesh, the learned counsel for the revision petitioner, Sri.S.K.Adhithyan, the learned counsel for the 2nd respondent and Smt.T.V.Neema, the learned Senior Public Prosecutor.

5. The controversy centers around the caste of the accused/2nd respondent. The petitioner admits that the father of the 2nd respondent belonged to Hindu Parayan community. However, according to him, the father of the 2 nd respondent got converted to Christianity from Hindu Parayan community and thereafter married to the mother of the 2 nd respondent on 30/3/1998 as per Christian rites as recorded in the Church Register. As the 2nd respondent was born to Christian parents, he is Christian by birth, it was contended. The petitioner along with Annexure 1 petition submitted a report dated 24/2/2022 of Tahsildar, Peerumedu addressed to the Kerala State Scheduled Castes and Scheduled Tribes Commission. The said report was heavily relied on by the petitioner. In the report, it is stated that the Tahsildar after enquiry found that the 2 nd respondent is a Christian by birth. However, the court below did not rely upon the said document on the ground that the court cannot frame a charge or alter a charge on the basis of any material provided by a party other than an investigating officer. It was further found that there is no material before the court to alter the charge to include the offence under the SC/ST(PoA) Act.

6. Relying on the decision of the Apex Court in Anant Prakash Sinha @ Anant Sinha v. State of Haryana and Another [(2016) 6 SCC 105] as well as Jagjeet Singh and Others v. Ashish Mishra @ Monu and Another [2022 (3) KLT 327 (SC)], the learned counsel for the revision petitioner submitted that the documents produced by the victim can be considered by the trial court for altering/adding the charges. The counsel further submitted that it is apparent from the records produced that the 2nd respondent is a Christian and by dismissing Annexure 1 petition filed by the revision petitioner without taking into account those records, the court below has committed gross illegality, which could be set at right in the revision. The learned counsel for the 2nd respondent Sri.Adhithyan submitted that the 2nd respondent is a Hindu Parayan by birth and Annexure R2 series of documents produced would substantiate the said contention. The counsel further submitted that the document now relied on by the petitioner has been issued by the Tahsildar under the pressure of the petitioner without conducting any local investigation or verification of any other documents and without hearing the 2nd respondent. The counsel also submitted that, at any rate, the petitioner does not have a case in the FIS that the accused was not a scheduled caste and he committed the crime knowing that victim is a scheduled caste and hence the offence u/s 3(2)(v) of the SC/ST(PoA) Act will not be attracted. The learned Public Prosecutor Smt.Neema submitted that a petition for alteration of charge u/s 216 of Cr.P.C cannot be entertained at the instance of either the prosecutor or the accused or the defacto complainant and is strictly in the domain of the court. She relied on the decision of the Apex Court in P.Kartikalakshmi v. Sri Ganesh and Another [(2017) 3 SCC 347] in support of her argument. The learned Public Prosecutor further submitted that the investigation conducted by the investigating agency revealed that the 2nd respondent was born and brought up as a person belonging to Scheduled Caste community and hence the offence under S.3(2)(v) of the SC/ST Act(PoA) will never be attracted.

11. As stated already, the petitioner has mainly relied on the report of the Tahsildar dated 24/2/2022 mentioned above to contend that 2nd respondent is a Christian. He has also produced and relied on the baptism certificate of the father of the 2 nd respondent to contend that he was converted to Christianity before the birth of the 2nd respondent. On the other hand, the 2 nd respondent has relied on Annexure R2 series documents to contend that he is a Christian. Annexure R2(a) is the copy of the SSLC Transfer Certificate of the father of the 2 nd respondent. Annexure R2(b) is the copy of the extract of the school admission register of the mother of the 2nd respondent. Annexure R2(c) is the school leaving certificate of the 2nd respondent. Annexure R2(d) is the SSLC certificate of the sister of the 2 nd respondent. Annexure R2(e) is the transfer certificate of the 2 nd respondent. Annexure R2(f) is the caste certificate of the 2 nd respondent issued by the Tahsildar, Peerumedu. Annexure R2(g) is the community certificate of the 2nd respondent issued to the 2nd respondent by Tahsildar, Peerumedu, Annexure R2(h) and R2(i) are community certificates issued to the 2 nd respondent and the father of the 2nd respondent respectively by the Tahsildar, Peerumedu. Annexure R2(j) is the transfer certificate issued by the Principal, Government Polytechnic, Vandiperiyar to the 2 nd respondent. In all these documents, the caste of the 2 nd respondent has been shown as Hindu Parayan. After filing WP(Crl) No.111/2022, the investigating officer conducted a detailed enquiry and taking into consideration the documents mentioned above as well as the documents relied on by the petitioner, he came to the conclusion that the 2 nd respondent is a member of the Scheduled Caste community. The report of the Tahsildar dated 24/2/2022 would show that it was prepared without hearing the 2nd respondent. The crucial question that arises for consideration is, even if the report of the Tahsildar is accepted and assumed that the 2 nd respondent is not a member of Scheduled Caste or Scheduled Tribe Community, still, is there any scope for alteration/adding the charge u/s 3(2)(v) of SC/ST(PoA) Act taking into account the facts of the case.