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2011 DIGILAW 544 (GUJ)

Gafur Gulam Umarji Munshi v. State of Gujarat

2011-07-15

JAYANT PATEL

body2011
JUDGMENT : Jayant Patel, J. The present petition is directed against order dated 18.9.2007 passed by learned Special Judge below application Exh.9 whereby the prayer made by the petitioner for discharge from the alleged charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act") has been dismissed. 2. Relevant facts are that a complaint came to be registered with Palej Police Station vide CR No. I - 29 of 2000 for the offences punishable under Sections 144, 147, 323, 324, 504 of Indian Penal Code read with Section 135 of the Bombay Police act and under the Act. The investigation was made by the police and thereafter, chargesheet has been filed before the Additional Sessions Judge and Special Judge under the Act. Before the charge was framed, an application was preferred being Exh.9 by the original accused - petitioner herein for discharge from the alleged charge under the Act and it was submitted that so far as other offences are concerned, the case is required to be tried by the lower Court. 3. Learned Judge heard the application and found that the application deserves to be dismissed and passed the impugned order. It is under these circumstances, the present Revision before this Court. 4. Heard Mr.Saiyed for the petitioner and Mr.Desai, learned APP for the respondent State. 5. Perusal of the impugned judgment and order of learned Special Judge shows that learned Judge has recorded that it has come on record that the victims were belonging to Scheduled Tribes - Bhil community and the certificate is there on record. It has been further found by learned Judge that there is sufficient material to consider alleged charge against the accused and, therefore, the application has been dismissed. 5.1 A copy of the complaint and other statements recorded are considered by me and it appears from the said evidence that except making statement in the FIR by the complainant that the atrocity is made upon the tribal community, no other statement of the complainant or of any of the witness has come on record. No evidence has come on record to show that any attempt was made to insult or lower down the victims on account of they belonging to tribal community. No evidence has come on record to show that any attempt was made to insult or lower down the victims on account of they belonging to tribal community. Under the circumstances, only evidence which came on record was that the victims were belonging to tribal community and the offence is committed by the accused under Sections 143, 147, 323, 325 and 504 of Indian Penal Code as per the allegations made in the complaint. 5.2 Therefore, whether merely because the victims were belonging to Scheduled Caste or Scheduled Tribe, could it be said that requirement of the Act is satisfied or not is an aspect which may be required to be considered in the present case. 5.3 It may be recorded that the Division Bench of this Court in the case of Lalubha Keshrisinh Garasia v. State of Gujarat, reported in 1997 Criminal Law Journal 3847 had an occasion to consider the said aspect and it was observed by this Court at paragraphs 11 and 12 as under. "11. Conviction under Section 3(2)(v) of the Atrocities Act is altogether a different thing. Section 3(2)(v) of the Atrocities Act reads as under :- "Section 3 Punishments for offences of atrocities - (2) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe - (v) commits any offence under the Indian Penal Code 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 punishable with imprisonment for life and with fine." 12. Provision of Section quoted above clearly indicate that the offence under I.P.C. should be established by the prosecution to have been committed on the ground that the injured person or persons against whom the offence is committed is/are a member of Scheduled Caste or Scheduled Tribe. It is not sufficient that the injured person should be a member of either but further it is required to be proved that the offence has been committed on the ground of victim being a member of Scheduled Caste or Scheduled Tribe. In absence of this material, merely because the injured happens to be Scheduled Caste or Scheduled Tribe automatically the offence under Section 3(2) (v) of the Atrocities Act is not made out. In absence of this material, merely because the injured happens to be Scheduled Caste or Scheduled Tribe automatically the offence under Section 3(2) (v) of the Atrocities Act is not made out. There is no material on record indicating that the deed was done on the ground that injured was a member of Scheduled Caste. The fact that they are members of Scheduled Caste is not in dispute. However, in absence of the material that the offence has been committed on the ground of the victim being a member of Scheduled of Caste, the conviction under the said provisions of the Act cannot be sustained. The appeal is therefore partly allowed to that extent. 5.4 Aforesaid makes it clear that in absence of any other material merely because injured happens to be Scheduled Caste or Scheduled Tribe, automatically offence under the Act is not made out. Further, as observed earlier, there is no statement recorded of any of the witness to meet with the requirement under Section 3(i)(x) of the Act. The language used under Section 3(i)(x) of the Act is as under. "intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view". 5.5 Under the circumstances, in absence of any evidence, learned Judge could not have dismissed the application for discharge. It can be said that an error for exercising the jurisdiction has been committed by learned Judge which may attract revisional powers of this Court. 6. In view of the aforesaid observations and discussion, the impugned order passed by learned Special Judge below the application Exh.9 in Special Atrocity Case No.15 of 2007 is quashed and set aside with a direction that the petitioner shall stand discharged from the alleged charge under Section 3(i) (x) of the Act and consequently, the application Exh.9 shall stand allowed. It will now for the learned Additional Sessions Judge and Special Judge to pass appropriate order. The petition is allowed to the aforesaid extent. Rule is made absolute. Petition allowed.