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Madhya Pradesh High Court · body

2003 DIGILAW 623 (MP)

Namita Agnihotri v. Rekha Barethia

2003-04-28

S.L.JAIN

body2003
ORDER 1. Being aggrieved by the order dated 12.4.2002 passed by Special Judge, Sagar in Special Case No. 236/2001 framing charges against the petitioner for the offence punishable under section 500 IPC and under section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the' Act'), the petitioner has filed this petition under section 397/401 of the Code of Criminal Procedure. 2. The facts of the case which led to filing of this revision arc that a complaint was filed by the respondent No.1 against the petitioner and co-accused B.L. Namdeo. The case of the prosecution as portrayed in the complaint is that Rekha and the petitioner were posted in the teaching staff of Department of Zoology in Government Degree College, Bina of which Shri B.L. Namdeo was the in-charge principal. On 27.2.1997 at about 2-3 p.m. respondent No. 1 was sitting in the staff room of the Department of Zoology. The petitioner was also present there. It is alleged that the petitioner intentionally insulted and intimidated the respondent No.1 ill order to humiliate her being a member of the scheduled caste. The respondent No.1 made a complaint to her superiors but on the insistence of the staff members she forgave the petitioner on tendering an apology in writing. 3. The further case of the prosecution is that on 25.9.1999 at about 3.00 p.m. when the respondent No.1 was sitting in the staff room. S.L. Namdeo called her in his office. At that time petitioner was also seated there. S.L. Namdco and petitioner intentionally insulted and intimidated the respondent No. 1 with intend to humiliate her being a member of the scheduled caste. 4. The statement of complainant wm recorded under section 200 Cr. PC and the statements of her witnesses Hitesh Kumar and Santosh Dubey were recorded under section 202 Cr. PC. 5. The case was committed to the court of Special Judge. Sagar. Charges under section 500 of the IPC and under section 3 (1) (x) of the Act were framed against the petitioner and B.L. Namdeo for the incident of 27.2.1997 and 25.9.1999. 6. Being aggrieved by this order the petitioner has come up in revision before this Court. 7. Petitioner submits that respondent No. 1 filed the complaint on imaginary facts. Charges under section 500 of the IPC and under section 3 (1) (x) of the Act were framed against the petitioner and B.L. Namdeo for the incident of 27.2.1997 and 25.9.1999. 6. Being aggrieved by this order the petitioner has come up in revision before this Court. 7. Petitioner submits that respondent No. 1 filed the complaint on imaginary facts. Her case is that respondent No. 1 harboured enmity against her, as she had gained seniority in service, superseding the complainant. Respondent No. 1 had also filed a petition before the State Administrative Tribunal at Jabalpur and had lost the same. Out of sheer frustration a totally false case has been instituted against her. 8. I have heard Shri Surendra Singh, learned senior counsel with Shri Ashish Tiwari, Advocate for petitioner. Shri Manish Datt, learned counsel for the respondent No. 1 and Shri Arup Das, learned Panel Lawyer for the State and also perused the copy of the impugned order, copies of complaint, copies of statements of respondent No.1 and her two witnesses namely Hitesh Kumar and Santosh Dubey recorded under sections 200 and 202 of the Cr. PC. 9. The first contention of Shri Singh is that the respondent No. 1 harboured enmity against the petitioner as she gained seniority in service. To redress her grievance respondent No. 1 had also filed a petition in the State Administrative Tribunal, at Jabalpur where she lost. In support of this contention, a certified copy of the order of the Tribunal passed in OA No. 3081/2000 decided on 21.1.2002 has been filed. 10. At this stage documents which were not even put to the prosecution witnesses cannot be seen. The proceeding at this stage, does not partake the nature of trial. It becomes a trial only after the charge is framed. Therefore, simply because the enmity existed between the parties and original application was filed by the respondent No. 1 against the petitioner before the SAT, the accused cannot be discharged. Hence, the contention is not acceptable. 11. Learned counsel for the petitioner next submitted that the accused earns a right of discharge under section 227 Cr. PC if there is no sufficient ground for proceeding against him. 12. It is true that the powers of Sessions Judge under section 227 Cr. PC are wider than magistrate for discharging under section 239 Cr. PC. 13. 11. Learned counsel for the petitioner next submitted that the accused earns a right of discharge under section 227 Cr. PC if there is no sufficient ground for proceeding against him. 12. It is true that the powers of Sessions Judge under section 227 Cr. PC are wider than magistrate for discharging under section 239 Cr. PC. 13. The purpose of section 227 and 228 Cr. PC is to ensure that the accusation made against the accused should not be frivolous. Of course, where the material available in the case creates a very strong ground and suspicion about the complicity of the accused in the crime, the Court has to frame charge but the truth, varacity and effect of evidence cannot be judged at initial stage of trial. The stage of deciding the matter under section 227 of the Cr. PC is only for the purpose of deciding prima facie case where the Court should proceed with the trial or not. 14. The Special Judge is expected to apply its judicial mind keeping in view the ingredients of the offence for which the accused is sought to be charged. If on such considerations Special Judge comes to conclusion that there is no ground to connect the accused with the offence, he had no option but to discharge the accused. 15. It is well established that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court must see that there is a resonable possibility of conviction. Where from the material all the ingredient of the offence are not established, charge cannot be framed. 16. Learned counsel for the petitioner submitted that there is no ground whatsoever to sustain the charge. His contention is that in order to constitute an accusation of offence under section 3 (1) (x) of the Act there must be an allegation that the accused has intentionally insulted or intimidated the complainant in a place which was within public view and such insult or intimidation was done with an intention to humiliate the complainant. Where the alleged insult or intimidation is not within the public view, offence under section 3 (1) (x) of the Act is not made out. In support of his contention, learned counsel for the petitioner relied on Mukesh Kumar Soni and others v. State [2001 Cr. LJ 4587]. 17. Where the alleged insult or intimidation is not within the public view, offence under section 3 (1) (x) of the Act is not made out. In support of his contention, learned counsel for the petitioner relied on Mukesh Kumar Soni and others v. State [2001 Cr. LJ 4587]. 17. I have perused the statements of respondent No. 1 Dr. Rekha and her two witnesses namely Hitesh Kumar and Santosh Dubey. Hitesh Kumar and Santosh Dubey were not present at the time of alleged occurrence of 27.2.1997. Regarding this incident from the statement of respondent No. 1 Dr. Rekha it is clear that the incident took place in the Zoology Department and there is not even a wishper that she was insulted or intimidated in any place within the public view. The main ingredient of the offence under section 3 (1) (x) of the Act is the intention to humiliate. When no other person was present to hear the insult or intimidation it cannot be said that there was any humiliation. For the purpose of humiliation the matter must be communicated to some person other than the person concerning whom it is addressed. In the present case, even if accepting every word narrated by the complainant in her statement to be a gospel truth, ingredient of humiliation in the public view is not made cut, therefore, charge could not have been framed by the learned Sessions Judge. Shri Datt., relying on the decision in K. Muhammed V.K. Sukumaan (2001 Cr. LJ 1664), submitted that in that case the statement was made at a shop and it was held that it is a place within the public view. The observation in that case is based on the facts of that particular case. 18. In the case in hand, no other person was available to hear the insult or intimidation, therefore, it cannot be said that there was any humiliation in the public view. 19. So far as the incident alleged to have been occurred on 25.9.1999 is concerned, it is true that this incident occurred within the view of Hitesh Kumar and Santosh Dubey but from the statements of complainant and other witnesses it is quite clear that it was B.L. Namdeo in-charge Principal who was responsible for insulting and intimidating the complainant. 19. So far as the incident alleged to have been occurred on 25.9.1999 is concerned, it is true that this incident occurred within the view of Hitesh Kumar and Santosh Dubey but from the statements of complainant and other witnesses it is quite clear that it was B.L. Namdeo in-charge Principal who was responsible for insulting and intimidating the complainant. Admittedly, at that time petitioner was simply sitting .in the office of B.L. Namdeo and she did not utter a word which may amount to insult or intimidation with an intention to humiliate the respondent No.1. 20. Shri Manish Datt learned counsel appearing for the respondent No. 1 submitted that the standard of test and judgment which is to be applied before recording a finding of guilt or otherwise of the accused is not exactly to be applied at the stage of deciding whether the accused should be discharged. At the stage of discharge the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is likely to end in the conviction. There is substance in the contention but in the case in hand even if we accept the entire material as it is, accusation against the accused is groundless, therefore the charge could not have been framed. Where the material before the Court does not furnish a reasonable basis for foundation of the accusation, the accused must be discharged. 21. Shri Manish Datt, learned counsel for respondent No. 1 also contended that in the complaint it has been clearly stated that the humilation was done in the public view but from the statements recorded under section 200 and 202 of the Cr. PC, it is clear that the ingredients of the offence arc not made out. Simply because the complaint contains certain facts, which cannot be said to be substantive evidence, the charge cannot be framed. Therefore, I conclude that accepting every word of the statements of the witnesses to he true no offence punishable under section 3 (1) (x) of the Act against the petitioner is made out and the learned Special Judge has committed an error in framing charge for the said offence. Shri Manish Datt submits that High Court should not ordinarily interfere with the trial Court's order regarding framing of the charge unless there is glaring injustice. Shri Manish Datt submits that High Court should not ordinarily interfere with the trial Court's order regarding framing of the charge unless there is glaring injustice. In support of his contention, he relied on Omwati (Smt.) and another v. State through Delhi Administration and others [ (2001) 4 SCC 333 ]. But where on perusal of the evidence no prima facie case is made out to proceed against accused, it will result in glaring injustice, if the accused is not discharged. 22. Regarding the offence punishable under section 500 IPC also. Shri Surendra Singh learned senior counsel appearing for petitioner submitted that the publication of defamatory matter is a must for the offence punishable under section 500 IPC. 23. The gist of the offence of defamation lies in the disseminate of harmful imputation. If the libeller merely communicates the libel to the person defamed, it does not constitute offence punishable under section 500 IPC. Defamation is injury to one's reputation and reputation is what others think of a man and not his opinion about himself. Therefore, publication of the imputation must be to a stranger or strangers. In the absence of publication of the imputation offence under section 500 IPC is not made out. In the present case so far as the first incident dated 27.2.1997 is concerned there was no publication as admittedly the imputation was made in the staff room of the Zoology Department where no person other than the petitioner and respondent No. I was present. 24. It is also not the case of the respondent No. 1 that the imputation was heard by some person, other than the complainant. Hence, offence under section 500 IPC is not made out. So far as the incident of 25.9.1999 is concerned admittedly, it was B.L. Namdeo, who made imputation concerning the respondent No. 1. No imputation was made by the petitioner. She was simply sitting in the room of the in-charge principal, B.L Namdeo, about whom it is alleged that he made the imputation concerning the petitioner and insulted and intimidated her with intend to humiliate her. Shri B.L Namdeo is not before this Court challenging the order impugned, thus in view of the discussion aforesaid. I find that the petitioner is entitled for discharge under section 227 of the Cr. PC. 25. Shri B.L Namdeo is not before this Court challenging the order impugned, thus in view of the discussion aforesaid. I find that the petitioner is entitled for discharge under section 227 of the Cr. PC. 25. Thus, the order of framing charge against the petitioner is set aside and the revision is allowed. The trial Court shall now proceed against B.L. Namdeo only Record of the case be sent to the Court below along with a copy of this order.