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2013 DIGILAW 228 (JHR)

M. Mukhopadhyay v. State of Jharkhand

2013-02-13

JAYA ROY

body2013
JUDGMENT: By Court: - Petitioner has filed this application for quashing the F.I.R. and quashing the entire criminal proceeding in connection with Sector IV, B.S. City P.S. Case No. 121 of 2000 registered under Section 323 of the Indian Penal Code and Section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Counsel appearing for the petitioner has submitted that the petitioner was Chairman cum Managing Director of Bharat Refractories Ltd., a Government of India undertaking company at the relevant time and now he has retired from the said post. 3. Brief fact of the case as per the complaint petition is that the complainant Rama Nand Choudhary, the Assistant Manager (Marketing & Service) joined in the aforesaid company in the year 1989 against permanent vacancy, thereafter, he has been promoted as Dy. Manager (Marketing & Service) against permanent vacancy, thereafter, he was not promoted to the post of Manager, then he filed a representation before the Chairman, National Commission of Scheduled Castes and Scheduled Tribes, New Delhi on 16.01.1999 to enquire and redress of his “Service Grievances” that he was not given promotion though provision for the service was in favour of Scheduled Castes and the said provision is ignored. It is further alleged in the said complaint petition that on 04.11.2000 at about 1.45 p.m. while the complainant was returning after attending the closing function of “Vigilance Awareness Week” in which he was one of the prize winner and speaker, the present petitioner (accused no.2) who was near the outer door of 'Bharat Mandapam' called the complainant and abused him in filthy language: “CHOUDHARY SALA TUM HARIJAN HOKAR TUM HARISH CHANDRA OUR DHARMRAJ YUDHISTHIR BANNE CHALE HO AUR BHRASTACHAR MITANE KA BADA BADA BHASHAN DETA HAI. MAIN MARTE JUTA TERA MUNH TORD DUNGA”. ABHI DEKHTE JAO MAIN TUMHARA KYA DURGATI KARTA HUN”. 4. It is further alleged that the accused no.2, who is the present petitioner, uttered these words publicly with intention to insult and intimidate the complainant as he is member of Scheduled Caste. Thereafter, the complainant received transfer order dated 8th November, 2000 and release order dated 10th November, 2000. It is submitted that the said transfer order was issued only to harass and victimize the complainant at his fag end of retirement as he belongs to a Scheduled Caste community. Thereafter, the complainant received transfer order dated 8th November, 2000 and release order dated 10th November, 2000. It is submitted that the said transfer order was issued only to harass and victimize the complainant at his fag end of retirement as he belongs to a Scheduled Caste community. It is also stated in the complaint petition that the complainant informed the local police, but the police had not taken any action against any of the accused person including the accused no.2 (Petitioner), hence the complainant filed this complaint petition, thereafter, Chief Judicial Magistrate, Bokaro passed the order dated 01.12.2000 and directed to institute and investigate the case under Section 156(3) of the Code of Criminal Procedure by 22.12.2000 positively, accordingly, the instant F.I.R. has been lodged. 5. Mr. Kalyan Roy, the counsel appearing for the petitioner has further submitted that in the entire complaint petition, there is no whisper that the present petitioner has voluntarily caused hurt, he might have tried to threaten him by saying “MAIN MARKE JUTA TERA MUNH TORD DUNGA” but there is no allegation that he ever assaulted even by any slap or fist. Therefore, no case is made out against the petitioner (accused no.2) under Section 323 of the Indian Penal Code. 6. Mr. Kalyan Roy has further submitted that according to the allegation made in the complaint petition, the place of occurrence is near the outer door of 'Bharat Mandapam' where the present petitioner uttered and abused the complainant in filthy language, therefore, it cannot be said that he uttered the aforesaid words in the place within the public view. 7. To support his contention he has cited a decision reported in 2010(4)East Cr C 27 (Jhr) in the case of Pradeep Kumar Choubey Versus State of Jharkhand & Anr. in which it has been held that: “Under the situation, I am constraint to hold that whatever utterances were allegedly made, that were not within the public hearing view and as such, no offence is made out under Section 3(I)(X) of the Act, even if the entire allegations are taken to be true”. 8. It is also submitted that in another decision reported in 2012(1) JCR 559 (Jhr) in the case of Rupam Akhouri & Anr. Versus State of Jharkhand & Anr. 8. It is also submitted that in another decision reported in 2012(1) JCR 559 (Jhr) in the case of Rupam Akhouri & Anr. Versus State of Jharkhand & Anr. the Hon'ble Court has held that: “since the occurrence took place on a public place outside the house which was turning point of the public road, it would be deemed that the occurrence took place at a public place and therefore, the offence under Section 3(i)(x) would be attracted. I find that the provision of law is wholly misconceived by the learned Revisional Court”. 9. In this case it is held ultimately that no offence prima facie is made out against the petitioners under Section 3(i)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. 10. Mr. Bhaiya Vishwajeet Kumar, counsel appearing for the informant has submitted that it is very clear from the complaint petition that the petitioner has uttered and abused the informant/complainant near the door outside 'Bharat Mandapam', therefore, it can not be said that it is not a public place. He has also submitted that the aforesaid cases which have been cited by the counsel for the petitioner, place of occurrence is not public place. 11. In the case of Pradeep Kumar Choubey Versus State of Jharkhand & Anr reported in 2010(4)East Cr C 27 (Jhr) Supra admittedly the place of occurrence was the official chamber and according to the case of prosecution, no other person was present, therefore, the Hon'ble Court has rightly quashed the F.I.R. of the said case. In the case of Rupam Akhouri & Anr. Versus State of Jharkhand & Anr reported in 2012(1) JCR 559 (Jhr) the place of occurrence is near the house of the informant. In the said case, the I.O. after investigation submitted charge sheet under Sections 341/323/504/34 of the Indian Penal Code but not under any provision of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. It has also come in the investigation of the said case that the place of occurrence is the house and no other person was present at the relevant time. Therefore, both the cases are not applicable in the present case. He has further submitted that the stage of the case is for investigation, therefore, at this stage, F.I.R. cannot be quashed as there is specific allegation against the petitioner. 12. Mr. Therefore, both the cases are not applicable in the present case. He has further submitted that the stage of the case is for investigation, therefore, at this stage, F.I.R. cannot be quashed as there is specific allegation against the petitioner. 12. Mr. Bhaiya Vishwajeet Kumar has not disputed the contentions made by the counsel for the petitioner in respect of the offence under Section 323 of the Indian Penal Code. He has also accepted that there is no specific allegation against the present petitioner, who is accused no.2 for causing hurt to the informant, therefore, any allegation under Section 323 of the Indian Penal Code is not made out against the present petitioner (accused no.2). 13. Considering the submissions made by the parties and the decisions cited by the counsel for the petitioner and also considering the materials available on record, admittedly, no case is made out under Section 323 of the Indian Penal Code against the present petitioner (accused no.2) but prima facie case is made out under Section Section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is very specifically stated in the complaint petition that the petitioner has abused and intimidated the informant at the outer door of 'Bharat Mandapam', which is definitely a public place within the public view. 14. Accordingly, I allow this application partly and quash the allegation made in the F.I.R. against the present petitioner under Section 323 of the Indian Penal Code but as the prima facie case is made out under Section Section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989, I direct the investigating authority to proceed against the petitioner for the offence under Section Section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. As the case is of the year 2001, office is directed to send the record if any and order of this case immediately to the Court concerned.