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2006 DIGILAW 1366 (MP)

Sudhir Gupta v. State of M. P.

2006-12-02

B.M.GUPTA

body2006
ORDER 1. The instant petition has been filed for setting aside the Criminal Case No. 654/05 pending in the Court of JMFC, Gwalior. During the course of arguments, the following facts have not been disputed by both the parties: That, complaint (Annexure P-2) dated 30.5.2005 was filed by respondent No.2 against the petitioners in the Court of Judicial Magistrate, First Class, Gwalior. During the course of inquiry, statements of complainant, Shyam Babu and his witnesses Ramhet Katare and Pradeep were recorded. Thereafter, vide order dated 10.8.2005, the learned Magistrate took cognizance against the petitioners for the offence punishable under section 504 of IPC and 3 (I) (x) of SCST (Prevention of Atrocities) Act (hereinafter referred to as 'the Act'). Feeling aggrieved by this order, this petition has been filed on behalf of the petitioners. 2. During the course of arguments, Shri Gupta, the learned counsel appearing on behalf of the petitioners, has submitted that neither in the complaint nor in the statements, anywhere it is mentioned that, as to what is the caste of respondent No.2. Hence, the cognizance u/s. 3 (1) (x) of the Act is not made out. He also submits that this petition under section 482 of CrPC is maintainable. He has drawn the attention on the following judgments in his favour : 1. Manohar M. Kulkarni v. State of Maharshtra [ 2005 CrLJ 4653 ]. 2. Adalat Prasad v. Rooplal Jindal and others [2005 (I) MPWN 40 = AIR 2004 SC 4674]. 3. Shri Ahirwar, the learned counsel appearing on behalf the respondent No. 2 has drawn attention at para 2 of the complaint a well as all the aforementioned three statements and has submitted that, at these places the petitioners have addressed the respondent No.2 as "chamarwale". As such it can't be said that the caste of the respondent No.2 has not been mentioned. In his support, he has drawn the attention of the Court on the following judgment: 1. U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and others [2000 Apradh Nirnay Journal, 412] (paragraphs 4, 5 and 6). 2. Dev Chand Manji Bheel v. Kutub @ Kutubuddin Fakruddin [ 2005 (I) MPWN 12 ]. and has submitted that, against the impugned order, remedy was available to the petitioners to file a revision petition in the Court of Sessions. Hence, when a specific remedy is available, the present petition cannot be entertained. 4. 2. Dev Chand Manji Bheel v. Kutub @ Kutubuddin Fakruddin [ 2005 (I) MPWN 12 ]. and has submitted that, against the impugned order, remedy was available to the petitioners to file a revision petition in the Court of Sessions. Hence, when a specific remedy is available, the present petition cannot be entertained. 4. During the course of arguments, Shri Gupta has challenged the impugned order with regard to the offence punishable under section 3 (I) (x) of the Act only. Nothing has been pressed about the offence punishable under section 504 of IPC. 5. On perusal of the complaint as well as the statements, nowhere caste of the complainant has been mentioned. Even during the course of arguments, here in this Court, it has not been mentioned. The words pekjokys etc. as appeared in the complaint and the statements are, as per the allegation, abusive words addressed to the complainant. These words do not denote the caste of the complainant. The provision of section 3 (I) (x) goes as under : 3. Punishments for offences of atrocities. -- (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe..................... (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; (Emphasis supplied) It is essential for the offence that the complainant is required to be either of Scheduled Caste or Scheduled Tribe and the caste of the opposite party is required not to be of such caste. In view of this, mentioning caste of both the parties is very essential for initiation of a criminal proceeding for the offence punishable under this provision. In absence of the caste, taking cognizance against the petitioners appears abuse of the process of the Court. Similar observation appears to be taken by a single Bench of Bombay High Court in the case of Manohar M. Kulkarni (supra). The facts of the case of U.P. Pollution Control Board (supra) were not only different but the point for dispute was also different. In that case, it has been observed by the Hon'ble Apex Court that, in absence of a speaking order, proceedings cannot be quashed. This point is not involved in the present case. 6. The facts of the case of U.P. Pollution Control Board (supra) were not only different but the point for dispute was also different. In that case, it has been observed by the Hon'ble Apex Court that, in absence of a speaking order, proceedings cannot be quashed. This point is not involved in the present case. 6. It is admitted that opportunity of revision was also available to the petitioners for impugning the order passed by the learned Magistrate taking cognizance and issuing the process against them, as has been observed by another single Bench of this Court in the case of Dev Chand Manji Bheel (supra) as cited on behalf of the respondent No.2. However, impugning the same under section 482 of CrPC is not barred in view of the observation of the Hon'ble Apex Court in the case of Adalat Prasad (supra). In view of this, the contention of Shri Ahirwar does not appear to be sustained. 7. In view of all, as discussed hereinabove, the impugned order dated 10.8.2005 is required to be quashed so far as it relates to the offence punishable under section 3 (I) (x) of the Act. Consequently, the petition is partly allowed. Impugned order dated 10.8.2005 is quashed so far as it relates to the offence punishable under section 3 (I) (x) of the Act.