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2006 DIGILAW 2133 (RAJ)

Amrit Lal Mardia v. Dinesh Kumar

2006-07-06

H.R.PANWAR

body2006
JUDGMENT : 1. - By the instant criminal revision under section 397/401 of the Code of Criminal Procedure, 1973 (for short 'the Code', hereinafter), the petitioners have challenged the order dated 03.04.1993 passed by Chief Judicial Magistrate, Sirohi. (for short 'the trial Court' hereinafter) in complaint case No. 19/92 whereby the trial Court took the cognizance of the offence under section 3(x) of the SC&ST (Prevention of Atrocities) Act, 1989 (for short 'the Act' hereinafter). Aggrieved by the order taking cognizance, the petitioners have filed the instant revision petition. 2. I have heard learned counsel for the petitioners and the counsel appearing for the complainant. Carefully gone through the order impugned as also the record of the trial Court. 3. The non-petitioner filed a complaint before the trial Court on 01.05.1992 against the petitioners stating therein that on 22.04.1992, police recovered four gas cylinders, which were illegally kept in the house of petitioner No. 1 of which the complainant was in possession as a tenant. He has stated that on 23-24.04.1992 as also on 27.04.1992, he was abused by the family members of petitioner No. 1. He reported the matter and ultimately compromised the matter on 29.04.1992 in court premises. After the compromise was arrived at between the parties and there being no case against the petitioners, on 30.04.1992 during the day hours, some guests came to house of the petitioners, petitioner No. 1 Amrit Lal, his daughter petitioner No. 6 Bharti and the guests were taking ice-cream; when the non-petitioner came out of his house, on seeing him, Bharti threw the ice-cream saying that complainant had an evil eye on the ice-cream. The complainant felt insulted. He also stated that petitioner No. 2 Smt. Nirmala also stated that under the fear, the complainant compromised the matter. 4. From perusal of the complaint particularly para 16 of the complaint, it is clear that the actual occurrence took place on 23, 24 and 27.04.1992 for which a complaint was filed by the complainant non-petitioner before the court and the complainant himself voluntarily compromised the matter in the court and, therefore, the complaint earlier filed by him was dismissed by the court. Now the only question remains, with regard to alleged occurrence of 30.04.1992, whether the offence punishable under section 3(x) of the Act is prima facie made out. Now the only question remains, with regard to alleged occurrence of 30.04.1992, whether the offence punishable under section 3(x) of the Act is prima facie made out. It appears that petitioner No. 1 Amrit Lal, his daughter Bharti petitioner No. 6 and their guests were taking ice-cream and when the complainant came out of his house, on seeing him, Bharti threw her ice-cream and the complainant gathered the impression from the gesture that by seeing the complainant, she threw the ice-cream and, therefore, the complainant gathered the impression that he has been insulted. No other role has been assigned to any one except petitioner No. 2 Nirmala and No. 6 Bharti, and except that petitioner No. 1 Amrit Lal, his companion Champa Lal alias Farzi Bharat Patel and Phoolchand Jain started laughing. From the complaint, it appears that it is the non-petitioner who gathered impression that he has been insulted by the alleged gesture by petitioner No. 6 Bharti. The complaint does not disclose that the petitioners intentionally insulted or intimidated with intent to humiliate the complainant, a member of scheduled caste in any place within the public view. 5. Counsel for the complainant has supported the order impugned. He has relied on a decision of Hon'ble Supreme Court in Jagdish Ram v. State of Rajasthan,  2004(2) Apex Criminal 522 : 2004 Cri.L.J. 5008 : 2004(3) JT 202 : 2004(2) Crimes 296 : AIR 2004 Supreme Court 1734 : 6. Section 3(x) of the Act 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 Scheduled Caste or a Scheduled Tribe in any place within the public view, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. 7. In the instant case, except the petitioners and the complainant there being no other person even to view the alleged gesture by petitioner No. 6 Bharti. 8. In Dhanpal Jain v. State of Rajasthan & Anr., 1998 Cr.L.R. (Raj.) 279 , this Court held that so far as offence under Section 3(i)(x) SC/ST (Prevention of Atrocities) Act is concerned, Section 3(i)(x) of that Act requires that the alleged insult or humiliation should have been caused in a place within public view. 8. In Dhanpal Jain v. State of Rajasthan & Anr., 1998 Cr.L.R. (Raj.) 279 , this Court held that so far as offence under Section 3(i)(x) SC/ST (Prevention of Atrocities) Act is concerned, Section 3(i)(x) of that Act requires that the alleged insult or humiliation should have been caused in a place within public view. In the instant case the complainant approached the accused persons at two places, at their house, and at their shop. So far all the first incident is concerned that incident occurred at the shop of Dhanpal and all that occurred at the shop was that Dhanpal questioned the complainant's right to demand the accounts and did not give him the accounts relating to the income of the bus. There is nothing to show that at his shop Dhanpal intentionally insulted or intimidated the complainant with the intent of humiliating him. The second incident occurred at the house of accused person because it has not been alleged that the second incident occurred at any public place. In the absence of any allegation that the alleged insult was offered in public view it cannot be said that the offence under section 3(i)(x) SC/ST (Prevention of Atrocities) Act is prima facie made out by the facts alleged by the complainant. In view of the above fact the learned Judicial Magistrate could not have taken cognizance of the offence under section 3(i)(x) SC/ST (Prevention of Atrocities) Act nor he could legitimately issue process under section 204 Criminal Procedure Code on a charge under section 3(i)(x) SC/ST (Prevention of Atrocities) Act. On this premise, this Court while setting aside the order impugned therein dated 01.08.1995 held that the order taking cognizance for the offences under the Act is without jurisdiction and amounts to abuse of process of any Court. 9. In Asokan Nambiar v. State of Kerala, 2005(1) All India Criminal L.R. 955 , Kerala High Court observed as under:- "The provisions of the SC/ST PA. Act do certainly have a cherished legislative dream prompting them. In the quest to march towards a casteless society where there is no discrimination on the basis of caste, the provisions have been enacted. Penal law has stepped in to regulate human behaviour in a refined and sophisticated society. Act do certainly have a cherished legislative dream prompting them. In the quest to march towards a casteless society where there is no discrimination on the basis of caste, the provisions have been enacted. Penal law has stepped in to regulate human behaviour in a refined and sophisticated society. Insult/humiliation against member of a less fortunate caste by members who do not belong to such caste is sought to be prevented by section 3(1)(x) of the SC/ST PA. Act by the threat of sanction under the penal law. No Court can be oblivious to the possibility of misuse of such provisions. If alert consideration were not given, the Statute can be an instrument of oppression in the hands of the unprincipled. Therefore, the Courts always have the burden to make sure that the allegations like the ones raised in this, case, on the basis of which the accused faces indictment, are subjected to careful and cautious scrutiny." Keeping in view the provisions of section 3(i)(x) of the Act and the plain language used therein read with complaint filed by complainant, in my view the complaint does not disclose that the complainant was insulted, intimidated or humiliated at a place within the public view knowing him to be a member of scheduled caste. From careful reading of the complaint, prima facie no offence under section 3(i)(x) of the Act is made out and, therefore, in my view the trial Court fell in error in taking cognizance of the offence by order impugned. 10. In view of the aforesaid discussion, the revision petition is allowed. Order impugned dated 03.04.1993 passed by the trial Court in Complaint Case No. 19/92 is set aside.Revision allowed. *******