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2004 DIGILAW 657 (PAT)

Nagendra Roy v. State of Bihar

2004-07-08

body2004
ORDER Heard learned counsel for the petitioners and learned counsel appearing on behalf of opposite party no. 2. 2. Only controversy surviving in the present application in view of earlier order' dated 19.3.2004 is with regard to the prosecution of the petitioners under sections 3(X) and (XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Learned counsel appearing for opposite party no. 2 very fairly states that on the face of the F.I.R. no offence under section 3(XI) of the aforesaid Act can be said to be made out. This Court, therefore, has no hesitation in coming to the conclusion that based on the allegation as made out in the F.I.R. no offences prima facie can be said to be made out under section 3(XI) of the aforesaid Act. The order of cognizance in so far as section 3(XI) of the aforesaid Act is concerned, same is therefore quashed. 4. The issue now relates only to the applicability of section 3(X) of the aforesaid Act. Petitioner has strenuously urged that offence under section 3(X) of the aforesaid Act would not be applicable because the incident allegedly on the basis of statement made in the F.I.R. did not take place in public view. It apparently took place in a Dak Bunglow while parties were seated on Sofa. This would further laid credence on the fact that tt1e incident occurred in the confines of a room. 5. On the other hand, learned counsel for opposite party no. 2 urged that from the averments made in the complaint, it is apparent that the incident as alleged by the complainant took place in public view. Quite obviously, this Court cannot rely upon any material outside the records of the complaint cash at this stage to consider whether the incident took place in public view or not. Opposite party no. 2 would be required to substantiate this fact for the prima facie satisfaction of this Court based on the materials available on record with regard to this complaint case. Presently, this Court is not satisfied that opposite party no. 2 has been able to prima facie satisfy this Court that the order of cognizance is sustainable under section 3(X) of the aforesaid Act on the ground that an incident took place in public view. Presently, this Court is not satisfied that opposite party no. 2 has been able to prima facie satisfy this Court that the order of cognizance is sustainable under section 3(X) of the aforesaid Act on the ground that an incident took place in public view. Notwithstanding the aforesaid, this Court on the basis of prima facie allegation as made in the complaint does not find any justification for invoking the provision of section 3(X) of the aforesaid Act. It would be apparent from the complaint that the petitioners simply referred to the calling of the opposite party no. 2. This aspect of the matter has been considered in a judgment reported in the case of Karan Singh and others Vs. The State of Madhya Pradesh, reported in 1992 Cr. L.J. 3054. The reasoning therein was that merely because a person called the name of the opposite party with reference to his calling would not constitute an offence under the said Act. This Court has followed the same reasoning in Cr. Misc. No. 35026 of 2001 (Shiv Chandra Kumar Pandey @ Shiv Chandra Pandey Vs. The State of Bihar and Anr.) wherein a similar question arose for consideration of this Court. Dealing with the matter this Court recorded that the Act was enacted to provide genuine protection and not to become an instrument of oppression. 6. In the facts and circumstances of the case it be said conclusively for the purpose of cognizance that the incident took place in public view. Likewise, the complaint does not prima facie disclose a case under the aforesaid Act by mere reason of referring to the caste or calling of a person. 7. In the result, this application succeeds. The impugned order of cognizance dated 20.2.2003 is quashed, and set aside in so far as prosecution under section 3(X) of the aforeaid Act is concerned. It is made clear that this Court has not interfered with the prosecution of the petitioner under the provisions of the Penal Code. The same shall proceed in accordance with law.