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2011 DIGILAW 968 (JHR)

Bikram Saha v. State of Jharkhand

2011-10-19

PRASHANT KUMAR

body2011
ORDER By the Court.-This revision is directed against the order dated 22.1.2010 passed by Sessions Judge, Sahibganj in Criminal Revision No. 97 of 2009 whereby he allowed the revision and directed the learned Judicial Magistrate to pass fresh order on the point of cognizance in connection with P.C.R. No. 192 of 2009. 2. It appears that a complaint filed in the Court below alleging that all the accused persons entered inside the house of complainant on 16.5.2009 and uttered that the complainant is a Harijan-Babari. It is further alleged that all the accused persons also assaulted complainant's son and daughter-in-law and abused them. 3. It appears that after inquiry, learned Judicial Magistrate, vide order dated 16.9.2009, took cognizance only under Sections 323, 341, 379/34 of the I.P.C. and issued summons against the accused persons (petitioners). It further appears that opposite party No.2 (complainant) filed a criminal revision in the Court below vide Criminal Revision No. 97 of 2009 being aggrieved that no cognizance taken under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The learned Sessions Judge allowed aforesaid revision application and directed learned Judicial Magistrate to pass a fresh order on the point of cognizance. Against that, the present revision filed. 4. It is submitted by Sri Jai Shankar Tripathi, learned counsel for the petitioners that from plain reading of complaint petition, statement of complainant on S.A. and deposition of witnesses examined during the inquiry, no offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out, because there is nothing to show that any abusive language used by the petitioners with intent to insult the complainant or her family members in public view. It is alleged that the said occurrence took place inside the house of complainant. Thus, the question of viewing of incident by general public does not arise. It is then submitted that there is no allegation in the complaint petition that petitioners assaulted complainant or her daughter-in-law with intent to outrage their modesty. Thus, the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also not made out. Accordingly, it is submitted that the learned Sessions Judge had wrongly directed the Magistrate to pass fresh order on the point of cognizance. 5. Thus, the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also not made out. Accordingly, it is submitted that the learned Sessions Judge had wrongly directed the Magistrate to pass fresh order on the point of cognizance. 5. On the other hand, Sri Din Dayal Saha, learned counsel for the opposite party No.2 submits that there is allegation in the complaint petition that petitioners assaulted complainant while they were going to catch a train at Sahibganj station. Thus, petitioners abused the complainant while they were on a public place. Accordingly, he submits that the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out. 6. Having heard the submissions, I have gone through the record of the case and deposition of witnesses examined during the inquiry. Though in the complaint petition, it is mentioned that on 24.5.2009 while the complainant was going to Sahibganj station along with her son and daughter-in-law for catching the train, in the way all the accused persons abused her by saying harijan-babri and also assaulted them, but this fact has not been supported by the complainant in her statement on S.A. PW 1 Sanjay Babri, son of complainant and PW 2 Mousmi Babri, daughter-in-law of complainant-had only stated that accused persons came in the house of complainant and abused her by saying harijan-babri. They did not say that the said utterances were made in presence of public view. 7. Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act runs as follows :-- "intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view". 8. Plain reading of aforesaid section shows that if any member of Scheduled Castes and Scheduled Tribes insulted and/or intimidated with an intention to humiliate him in public view by another person, who does not belongs to the or community of Scheduled Castes and Scheduled Tribes in public view, then aforesaid another person can be punished for committing an offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In the instant case, as noticed above, on the own saying of complainant as well as her witnesses abusive languages were hurled inside her house. In the instant case, as noticed above, on the own saying of complainant as well as her witnesses abusive languages were hurled inside her house. Under the said circumstance, I find that said utterances were not made in public view. Thus, in my considered view, offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not made out. 9. It then appears that learned Sessions Judge had stated that if a woman member of Scheduled Castes and Scheduled Tribes is assaulted by a person, who is not a member of Scheduled Castes and Scheduled Tribes, then the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out. I find that aforesaid view of learned Sessions Judge is misconceived. 10. Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is read as under :-- "assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;" 11. Thus, from perusal of aforesaid provision, it is clear that if a woman member of Scheduled Castes and Scheduled Tribes is assaulted and/or any force used against her with an intention to dishonour or outrage her modesty, then only offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act will be constituted. In the instant case there is no evidence and/or allegation to show that complainant or her daughter-in-law were assaulted with intention to outrage their modesty or to dishonour them. Thus, in my view offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also not made out. 12. In view of the discussions made above, I find that the impugned order suffers from material illegality. Therefore, same cannot be sustained. In the result, this application is allowed and the impugned order is set aside. Application allowed.