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2001 DIGILAW 1403 (PNJ)

Saroj Kumari v. State Of Haryana

2001-12-14

R.C.KATHURIA

body2001
Judgment R.C.Kathuria, J. 1. Petitioner Saroj Kumari has filed this petition under Section 438 of the Code of Criminal Procedure, 1973 (hereinafer referred to as `the Code) praying for grant of anticipatory bail as she has been summoned to face trial under Sections 323/379/504/506, Indian Penal Code read with Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act) as per order dated 29.5.2001 passed by the Judicial Magistrate Ist Class, Hisar, in Criminal Complaint No. 143-1/2000 instituted by complainant Chajju Ram against the petitioner. 2. Essential facts to focus the controversy involved in this petition need be noticed : 3. Chajju Ram (complainant) is employed as a Head Master in Government Primary School, Agroha, District Hisar. He claims to be `Harijan by caste. Saroj Kumari (petitioner-accused) is working as a J.B.T. Teacher in the same school. As per allegations made in the complaint, she did not come to the school in time and used to mark herself present in the attendance register. Whenever the complainant objected to the same, she remarked that where `Chamer was Head Teacher, there was no use of coming to school in time. While addressing the complainant as a `Chamar, she had also threatened the complainant that in case he asked her to come to school in time, he and his family would face dire consequences. The petitioner was entrusted the work of distributing ration to the students of the school and she allegedly misappropriated two bags of rice and sold the same. Objection was raised by the complainant in this regard and a complaint was also filed by him against her to the Gram Panchayat, Agroha. The Gram Panchayat imposed a fine of one bag of rice upon the petitioner and she assured to deliver the same within two days, but this undertaking was not honoured by her. On 27.9.2000, the petitioner came late to the school. The complainant objected to it and asked her to fill the time of her arrival in the attendance register. This infuriated her. While addressing the complainant as `Chamar and saying that she would teach him a lesson, she gave 2/3 slaps to the complainant. On 27.9.2000, the petitioner came late to the school. The complainant objected to it and asked her to fill the time of her arrival in the attendance register. This infuriated her. While addressing the complainant as `Chamar and saying that she would teach him a lesson, she gave 2/3 slaps to the complainant. Balraj son of Chhaju Ram, Chandra widow of Darya Singh, Manju Bala and Mahesh Kumari, teacher of the school, came to the spot and saved the complainant from the hands of the petitioner. She also threatened the complainant in the presence of the above-mentioned witnesses that she would implicate him in some false case by the committing suicide. The complainant informed about this incident to the Gram Panchayat, Agroha and complaints were also made by him to the Deputy Commissioner, Hisar, and Police Station, Agroha, but no action was taken by the police. Under these circumstances, the complaint was filed against the petitioner in the Court. 4. In support of the allegations made in the complaint, Chajju Ram (complainant) himself appeared as C.W.1 and examined Chander as C.W.2. After taking into consideration the preliminary evidence led by the complainant, the petitioner was summoned to face trial, as stated above. 5. The petitioner had initially sought anticipatory bail in the Court of Sessions at Hisar. The Additional Sessions Judge, Hisar as per order dated 5.9.2001 rejected the prayer of the petitioner primarily for the reason that there is no provision in the Act for granting anticipatory bail. 6. Learned counsel for the petitioner, while pressing for her bail, has strenuously urged before me that the present complaint has been filed on account of animosity of the complainant against the petitioner. The complainant used to collect funds from the students, but never deposited the same in the government account. The petitioner objected to it and made a written complaint to the authorities in September, 2000. Block Education Officer, Hisar, had enquired into her the matter. Similar complaint was also made by Dev Raj Taneja against the complainant and after an enquiry into the allegations, the complainant was transferred from Agroha to Madhopur. With this grievance, the present complaint was filed. Additionally, it was submitted that a false and concocted story has been put up against the petitioner. Similar complaint was also made by Dev Raj Taneja against the complainant and after an enquiry into the allegations, the complainant was transferred from Agroha to Madhopur. With this grievance, the present complaint was filed. Additionally, it was submitted that a false and concocted story has been put up against the petitioner. The allegations made in the complaint, even taken at their face value, do not constitute any offence under Section 3(1)(x) of the Act because the alleged offensive words where not uttered to the complainant by the petitioner within public view. 7. Opposing the submission made, learned Assistant Advocate General has contended that accusations against the petitioner relate to an offence punishable under Section 3(1)(x) of the Act and in view of the provisions of Section 18 of the Act, remedy of anticipatory bail under Section 438 of the Code has been expressly barred to the person committing an offence under the Act. 8. Before evaluating the facts of the case, the requirements of the provisions of Sections 3 and 18 of the Act have to be noticed in detail in order to appreciate the stands taken by the parties before me. The relevant provisions of Section 3(1)(x) read as under :- "3. Punishments for offences of atrocities - (1) Whoever, not being a member of a Schedules Caste or a Schedules Tribe, - (i) to (ix) xx xx xx xx xx; (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (xi) to (xv) xx xx xx xx xx; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine." Section 18 of the Act provides as follows :- "18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act." 9. Section 3 of the Act being a substantive penal clause creates various offences of the atrocities and then prescribes different punishments for each of them. Section 3 of the Act being a substantive penal clause creates various offences of the atrocities and then prescribes different punishments for each of them. The word "whoever", mentioned in Section 3(1) has been qualified by the phrase "not being a member of a Scheduled Caste or a Scheduled Tribe". Consequently, the provisions contained in sub-section (1) of the Section 3 would not apply to a person who himself/herself is a member of such caste or tribe. The net result would be, to attract the provisions of Section 3 of the Act, the offence punishable must be committed by - (i) a non-member of a Scheduled Caste or a Scheduled Tribe and (ii) in respect of a member of a Scheduled Caste or a Scheduled Tribe. 10. In Masumsha Hasanasha Musalman v. State of Maharashtra, 2000(2) RCR(Crl.) 116 (SC) : 2000 Supreme Court Cases (Cri) 722, it was laid-down as under :- "To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In this case the trial Court erred in convicting the accused-appellant for the offence arising under Section 3(2)(v) of the Act only on the basis that there was no controversy that the victim belongs to a Scheduled Caste." 11. Coming to the facts of the present case, Chajju Ram (complainant) in the complaint (copy Annexure `P-1) has only stated that he is a `Harijan by caste but has not specified that he is a member of the Scheduled Caste or a Scheduled Tribe. For determining whether a person belongs to a Scheduled Caste or a Scheduled Tribe, the definition as contained in Section 2(1)(c) of the Act has to be noticed. It provides that "Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of Article 366 of the Constitution. Clauses (24) and (25) of Article 366 of the Constitution provide : "366. Definitions. It provides that "Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of Article 366 of the Constitution. Clauses (24) and (25) of Article 366 of the Constitution provide : "366. Definitions. - In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (1) to (23) xx xx xx xx xx. (24) `Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution; (25) `Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution;" The other relevant provisions having bearing are contained in Articles 341 and 342 of the Constitution, which read : "341. Schedules Castes. - (1) The President may with respect to any State or Union Territory, and where it is a State........ after consultation with the Governor....... thereof by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid notification issued under the said clause shall not be varied by any subsequent notification." "342. Scheduled Tribes. - (1) The President may with respect to any State or Union Territory, and where it is a State.............. after consultation with the Governor.........thereof by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. after consultation with the Governor.........thereof by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) Parliament may be law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clauses (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid notification issued under the said clause shall not be varied by any subsequent notification." 12. In exercise of the powers conferred by Clause (1) of the Article 341 of the Constitution, the President of India issued the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as `the Order of 1950. It has been stated in para 2 of the said Order that "subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in [Parts I to {XXII}] of the Schedule to this Order (substituted by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956) shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof residents in the localities specified in relation to them in those Parts of that Schedule." 13. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (No. 108 of 1976) (hereinafter referred to as `the Act of 1976) came into force with effect from 18.9.1976. The Scheduled Castes orders were amended in the manner and to the extent specified in the First Schedule and the Scheduled Tribes Orders were amended in the manner and to the extent specified in the Second Schedule to the Act of 1976. Consequently, Part-V of the First Schedule to the Act of 1976, relating to the Castes and Tribes who were to be deemed Scheduled Castes in the State of Haryana, came to be incorporated, for the first time, by the process of amendment as per the Act of 1976. As there are no Scheduled Tribes in the State of Haryana, there is no mention of the same in the Second Schedule to the Act of 1976. 14. As there are no Scheduled Tribes in the State of Haryana, there is no mention of the same in the Second Schedule to the Act of 1976. 14. The requirements of Section 3 of the Act are very explicit and clear. The person alleging commission of the offence under this Section should not only be a member of the Scheduled Castes, but he/she has to be from amongst the Castes or Tribes, who have been deemed to be Scheduled Castes as per specifications given in Part-IV of the First Schedule of the Act of 1976. 15. In the present case, as already noticed, complainant Chhaju Ram has deliberately not mentioned his caste and sought to file the complaint alleging himself to be `Harijan by caste. Harijan as such has not been included in Part-V of the First Schedule to the Act of 1976. Therefore, there is a force in the stand taken from the side of the petitioner that since the case of the petitioner is not prima facie brought within the purview of Section 3 of the Act, the bar of Section 18 of the Act debarring the petitioner from claiming anticipatory bail under Section 438 of the Code cannot be pressed into service from the side of the prosecution. 16. Taking the allegations against the petitioner, as contained in para No. 7, of the complaint (copy Annexure `P-1) at their face value, it cannot be said that these satisfy the essential requirement of Section 3(1)(x) of the Act with clearly provides that 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 Tribune in any place within public view, shall be liable for punishment. As stated above, on 27.9.2000, when the petitioner came late to the school, the complainant objected to it and asked her to fill the right time of her arrival in the attendance register, upon which she got infuriated and called him `Chamar. Further allegation in the complaint is that the petitioner gave 2/3 slaps to the complainant. It has not been stated in the complaint that at the time of this incident, any other person was present there. Further allegation in the complaint is that the petitioner gave 2/3 slaps to the complainant. It has not been stated in the complaint that at the time of this incident, any other person was present there. What has been mentioned in the complaint is that "Balraj son of Chhaju Ram, Chandra widow of Darya Singh member Panchayat Manju Bala, Mahesh Kumari teacher of the School came at the spot and they saved the complainant from the clutches of the accused". 17. Keeping in view the above-quoted facts and position of law, this petition deserves to be accepted. I, therefore, accept this petition and direct that in the event of the arrest of the petitioner on the allegations made in the complaint (copy Annexure `P-1) in pursuance of the summoning order dated 29.5.2001 passed by the Judicial Magistrate Ist Class, Hisar, she shall be released on bail on her furnishing her own bond and that of a surety to the satisfaction of the Arresting Officer/Court concerned undertaking therein to abide by the conditions laid down under Section 438(2) of the Code.