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2008 DIGILAW 660 (MP)

Mahesh Jatav v. State of M. P.

2008-05-06

B.M.GUPTA

body2008
ORDER 1. This Petition is filed by the complainant Mahesh Jatav for impugning the order dated 28th November, 2007 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Gwalior, whereby the learned Judge before whom the case was committed after filing of the charge-sheet against respondents No.2 to 6 for the offence punishable under sections 302, 395, 396, 376 of IPC read with section 11/13 of The Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (hereinafter referred to as the Act of 1981) and also 3 (1) (xii) and 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989), has framed charge against all the respondents No.2 to 6 for the offence punishable under section 302/149 along with offence punishable under section 3 (2) (v) of the Act of 1989. In addition to that against respondent No.2 Ravi @ Thakurdas charge for the offence punishable under section 376 (1) of IPC read with section 3 (2) (v) of the Act, 1989. Charge under sections 395 and 396 of IPC read with section 11/13 of the. Act of 1981 has not been framed on the ground that for trial of these offences, a separate special Court has been established and the learned Judge was not empowered to try these offences. Impugning this order, vide this petition, it has been requested that the charge under sections 395 and 396 of IPC read with section 11/13 of the Act of 1981 also ought to have been framed. 2. Undisputedly, with regard to an incident happened in the night of 1st June, 2007, FIR Crime No. 194/07 was lodged by the complainant Mahesh Jatav at Police Station Jhansi Road, Gwalior, against unknown persons to the effect that his Bhabhi (elder brother's wife) Smt. Gayabai and his niece Mona, who were living in their house separately and in the night only these two ladies were there in the house, have been found dead in the morning. Their murder has been committed by strangulation. On this report, the aforesaid FIR was initially registered for the offence punishable under section 302 of IPC. Their murder has been committed by strangulation. On this report, the aforesaid FIR was initially registered for the offence punishable under section 302 of IPC. It is also not disputed that during investigation vide postmortem report of deceased Mona, it is also opined by the doctor that -- evidence of sexual intercourse is evident with violence mark and her death was caused by asphyxia due to strangulation within 12 to 24 hours since postmortem. It is also admitted that during investigation as per the report dated 20th August, 2007, given by Finger Prints Bureau, Bhopal, it is opined that finger prints found at the place of incident are tallying with the finger prints of the respondent No.2 Ravi @ Thakurdas along with the other evidence. Some of the articles have been alleged to be recovered from the possession of the respondents. On this ground, the charge-sheet has been filed for the aforementioned offences in the Court of concerning Magistrate, who in turn committed the case in the Court of the learned Judge. Vide impugned order, the learned Judge has framed the aforesaid charges and on the ground that for the offence punishable under sections 395 and 396 of IPC read with 11/13 of the Act of 1981, a separate Special Court has been established and as such he has no jurisdiction to try the offences, he did not consider anything about these offences. 3. The impugned order has been assailed by Shri R.K. Sharma, Advocate appearing for the petitioner, on the ground that as per the allegation, the offence under sections 395 and 396 of IPC read with 11/13 of the Act of 1981 also made out prima faciely, hence, the charge ought to have been framed against the respondents No.2 to 6. If the learned Judge has no jurisdiction to try the case, in that case, a direction may be given to send the case for filing the charge-sheet to the appropriate Court having jurisdiction. 4. Shri Mukund Bharadwaj, for respondent No. 11 State, has submitted that considering the definition of the offence under section 3 (1) (xii) and 3 (2) (v) of the Act of 1989 is not made out, hence, it may be directed that the charge-sheet be filed before the special Court established under the Act of 1981. 5. 4. Shri Mukund Bharadwaj, for respondent No. 11 State, has submitted that considering the definition of the offence under section 3 (1) (xii) and 3 (2) (v) of the Act of 1989 is not made out, hence, it may be directed that the charge-sheet be filed before the special Court established under the Act of 1981. 5. Shri Arun Pateria has submitted that as per the allegation, no offence punishable under sections 395 and 396 of IPC read with section 11/13 of the Act, 1981 is made out. 6. The charge-sheet was filed before the learned Magistrate and thereafter committed to the Court of learned Judge only because the same was filed under section 3 (1) (xii) and 3 (2) (v) of the Act of 1989. The learned Judge has not rightly framed charge under section 3 (1) (xii) of the Act of 1989. Despite consideration of both the offences being necessary, are considered herein-below by this order. The definition of both the offences are as under: "Section 3 (1) (xii) 3. Punishments for offences of atrocities -- (1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribe,-- (i) to (xi) .............. (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; (xiii) to (xv).......... 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 3 (2) (v) 3. Punishments for offences of atrocities - (2) whoever, not being a member of Scheduled Caste or a Scheduled, Tribe -- (i) to (iv) ....... (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishabel with imprisonment for life and with fine; (vi) to (vii)........" (emphasis supplied) Under section 3 (1) (xii), as per high lighted parts thereof, it is necessary that the person who uses that position to exploit the woman sexually to which she would not have otherwise agreed, should be in a position to dominate her will. Committing rape by force against the will of a woman, cannot amount that a person who is committing rape by force against her will, is having some dominion over that woman, to control her will or to obtain her will for such act for which she would not have otherwise agreed. Thus, as rightly conceded by Shri Bharadwaj and also rightly not framing the charge by the learned Judge, this submission of Shri Bharadwaj and act of learned Judge appears to be sustained. 7. With regard to the offence punishable under section 3 (2) (v) of the Act of 1989, the offence committed is required to be punishable for a term of ten years or more and also such offence is required to be committed against such person on the ground that he is a member of a Scheduled Caste or Scheduled Tribe. As per the facts of the case, it does not appear, that the act of rape, if any committed with the deceased Mona, the same has been committed only because she was belonging to a Scheduled Caste nor any of the parties have argued with regard to this fact. 8. With regard to these two offences none of the parties have argued countering the aforesaid observation of this Court. I seek support for this observation from a judgment of the apex Court in the case of Masumsha Hasanasha Musalman v. State of Maharashtra [ AIR 2000 SC 1876 ]. 9. Once the offences punishable under aforementioned two sections of the Act of 1989 are not made out, it was not required for the investigating agency to file the charge-sheet for these two offences also and if these two offences are not made out it is not necessary that the case ought to be heard by the learned Special Judge appointed under the provisions of the Act of 1989. 10. With regard to the contention of Shri R.K. Sharma, on behalf of the petitioner and Shri Arun Pateria, on behalf of the respondents No.2 to 6, as to whether the offence punishable under sections 395 and 396 of IPC read with section 11/13 of the Act of 1981 are made out or not, no observation is required by this Court at this stage. At the first instance, the competent Court has to consider these contentions, if raised before it. 11. At the first instance, the competent Court has to consider these contentions, if raised before it. 11. As observed herein-above, there needs a direction to the learned Judge for returning the charge-sheet/challan to the police/investigating agency to file the same in the appropriate special Court established under section 6 of the Act of 1981. That Court being competent will also consider as to whether any other charge including under section 302 of IPC is also made out or not. Accordingly, the revision is partly allowed. The impugned order is set aside with aforesaid direction.