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2000 DIGILAW 2 (HP)

DAOLI RAM v. SHIV DAYAL

2000-01-03

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.:- This petition under Sections 482 and 483 Cr. P.C. has been filed by the petitioner-complainant (hereinafter referred to as the Complainant) praying for quashing the order dated 27.2.1997 passed in Criminal Revision No. 8/1994 by the learned Session Judge, Bilaspurand order dated 13.4.1994 in complaint No. 168/1 of 1992 passed by learned Sub-Divisional Judicial Magistrate, Ghumarwin. By the latter order the learned Magistrate has dismissed a complaint filed by the complainant under Sections 500, 323, 506, 341 IPC and Section 7 of the Protection of Civil Rights Act; by the former order the learned Sessions Judge has dismissed the revision preferred by the complainant against the aforesaid order of the trial Magistrate. 2. I have heard the learned Counsel for the parties and have also gone through the records. 3. The complainant has preferred the said complaint against the respondents-accused (here-in-after referred to as the accused) on the allegations that he had some bargaining with accused Shiv Dayal about two buffaloes and such bargaining was denied by the complainant on the ground that he had borrowed said buffaloes from the wife of said complainant and not from him. Said accused Shiv Dayal, therefore, filed a complaint No. 184-1/1992 before the Deputy Commissioner, Bilaspur which was marked to second accused A.S.I. Jagdish for investigation about the alleged offence of mis-appropriation or cheating about the bargain concerning the buffaloes by the present complainant. In the present complaint the complainant has further alleged that at the behast of accused Shiv Dayal accused Jagdish ASI severally beat him up and his son on 12.7.1992 at the police Station Ghumarwin and called him "BEHNCHOD CHORE BADMAS TO SHIV DAYAL KIAURAT KE SATH FASHA HEI AAJ MAIN TERI GAND MARUNGA AUR TOO CHORE DAGI CHAMAR HAI MAIN TUJHE NAHIN CHORUNGA". Accused Jagdish who is alleged to be drunk at the relevant time hurled some other filthy abuses also. The complainant was thereafter detained by accused Jagdish in connivance with accused Shiv Dayal. Hence, the present complaint filed by the complainant wherein after recording the preliminary evidence accused persons were summoned under Sections 500,323,506 and 341 IPC and Section 7 of the Protection of Civil Rights Act, 1955. After securing the presence of the accused persons the trial Court proceeded to record pre-charge evidence. Hence, the present complaint filed by the complainant wherein after recording the preliminary evidence accused persons were summoned under Sections 500,323,506 and 341 IPC and Section 7 of the Protection of Civil Rights Act, 1955. After securing the presence of the accused persons the trial Court proceeded to record pre-charge evidence. After hearing the parties on charge the trial Magistrate found that the ingredients of the offences complained against were not made out, therefore, he dismissed the complaint. 4. Feeling aggrieved the complainant preferred a Revision Petition before the learned Sessions Judge, Bilaspur who vide the impugned judgment dismissed the Revision Petition. Hence, the present petition. 5. This Court in case State of H.P. v. B.R. Sharma and others, (Cr. M.M.O. No. 36/1999), decided on 28.12.1999 while dealing with the question whether a petition under Section 482 Cr. P.C. is maintainable once a Revision Petition under Section 397 Cr. P.C. has already been preferred before and dismissed by a Sessions Court, held as follows: "18. In view of the above particularly the ratio in Krishnans case, which is a decision by a larger Bench of the Supreme Court what can be concluded is as follows : (a) Once a revision has been preferred under Section 397 Cr. P.C. before a Sessions Court and stood dismissed, ordinarily no petition for revision is maintainable under Section 482 Cr. P.C. or Article 227 of the Constitution. (b) The High Court, however, may exercise its powers under Section 482 Cr. P.C. very sparingly to interfere with the orders amounting to abuse of the process of the Court leading to grave miscarriage of justice." 6. It is in view of the above proposition of law that the present petition has to be considered. 7. At the very outset the learned Counsel for the petitioner submitted that in view of the concurrent findings of the Courts below he is not pressing for examination of the record to find out whether any offence under Sections 500, 323, 506 and 341 IPC has been made out or not. It has however been contended that in view of the material on record a case for framing a charge against the accused under Section 7 of the Protection of Civil Rights Act was made out and the same ought to have been framed against the accused and they ought to have been tried for the commission of the said offence. It has however been contended that in view of the material on record a case for framing a charge against the accused under Section 7 of the Protection of Civil Rights Act was made out and the same ought to have been framed against the accused and they ought to have been tried for the commission of the said offence. To elaborate his arguments further the learned Counsel has contended that the Illegality committed by the Courts below in dismissing the complaint is that while appreciating the material on record they have totally ignored the provisions of Section 12 of the Protection of Civil Rights Act, 1955 where under the Court ought to have presumed in view of the facts and circumstances of the case that the acts of the accused in beating and humiliating the complainant were committed on the ground of untouchability. 8. Section 12 of the Protection of Civil Rights Act, 1955 reads as follows:- "12. Presumption by courts in certain cases :- where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of untouchability" 9. There cannot be any dispute that Section 12 supra makes special provisions under the Act which brings about a change in the Criminal Jurisprudence inasmuch as it has made an exception to the general Rule that burden is always on the prosecution to bring home the guilt of the accused. As per the exception made, when an allegation is made by a member of the Scheduled Caste then the Court shall presume unless the contrary is proved that the offence of untouchability was committed by the accused. How-ever, such a presumption will arise only when it is established by the prosecution that the act(s) amounting to insult or attempt to insult constituting the offence was committed and it was committed qua a member of Scheduled Caste. Once these two conditions are established only then the presumption will arise that such act(s) was committed on the ground of untouchability. In a case where the aforesaid two conditions are not established no such presumption will arise. Thus, the presumption is limited to only one of the ingredients of the offence. 10. Once these two conditions are established only then the presumption will arise that such act(s) was committed on the ground of untouchability. In a case where the aforesaid two conditions are not established no such presumption will arise. Thus, the presumption is limited to only one of the ingredients of the offence. 10. In the case in hand the learned trial Magistrate has examined the evidence led by the complainant and in view of the facts that the alleged beating took place on 12.71992, the complainant was produced before the Court on 13.7.1992, he did not make any complaint about the alleged beating and insult to the Magistrate and even on subsequent dates when he appeared before the Court he did not make any complaint about the alleged beating and insult etc., he filed the complaint after 11 days delay but did not offer any explanation for such delay that there is no medical evidence whatsoever about the alleged beating nor he got himself medically examined, and failed to produce the witnesses in support of the allegations despite 13 opportunities having been granted to him despite the fact that at the time of alleged occurrence so many respectable persons of the locality were present concluded that the complainant had failed to adduce any evidence with regard to the fact that the accused persons committed any act which may be punishable under Section 7 of the Protection of Civil Rights Act. 11. The learned Sessions Judge after taking into account the material on record came to the concussion that there was no infirmity in the findings recorded by the learned trial Magistrate. 12. Thus, there are concurrent findings of the two courts below that no case was made out to frame a charge against the accused persons. 13. As already pointed out here-in-above unless the acts complained against constituting the offence are established presumption under Section 12 of the Protection of Civil Rights Act could not be drawn in the present case. 14. A perusal of the grounds of Revision as taken in the Revision Petition before the learned Sessions Judge and those taken in the present petition reveals the such grounds are identical. 14. A perusal of the grounds of Revision as taken in the Revision Petition before the learned Sessions Judge and those taken in the present petition reveals the such grounds are identical. Thus, no new case thas been made out in the petition nor is apparent on the face of the record which may lead to the conclusion that the impugned orders have resulted in gross-miscarriage of justice rendering this case one of the rarest of rare cases where this Court may interfere in exercise of its powers under Section 482 of the code of Criminal Procedure. In view of the similarity in the grounds taken before the Revisional Court and this Court in fact the present petition is a substitute for a second Revision which does not lie in view of the provisions contained in Section 397(3) of the Code. 15. In view Of the above conclusions, I do not find any merit and substance in the present petition which is accordingly dismissed. 16. Bail bonds furnished by the accused are discharged. Petition dismissed.