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2013 DIGILAW 409 (RAJ)

Poonam Chand v. State of Rajasthan Anr.

2013-02-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioners seeking quashing of the F.I.R. No. 252/2012 registered at the Police Station Kotwall, Doongarpur for the offences under Sections 452, 307 and 427/34 of the I.P.C. read with Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act and Section 3/25 of the Indian Arms Act. 2. Succinctly stated the facts of the case are that the respondent No. 2, an Executive Engineer with the Public Works Department, resident of SF-29, Sivaji Nagar Housing Board, Doongarpur filed a report at the Police Station Kotwali, Doongarpur on 25.10.2012 at 12.30 A.M. with the allegations that in the night at about 9.30 the petitioners herein came to his house and rung the bell. When the first informant came out in the Varrandah, he identified Poonam Chand, Mukesh and his driver. As soon as the first informant came out, the accused persons, who were standing outside the house started abusing and hurling caste based abuses to the complainant. The complainant claimed that he was a person belonging to Scheduled Caste. The accused forcibly pushed the gate of the complainant's house due to which, the chin with which the gate has been secured, broke. The complainant fearing harm to his life, used into the room. The accused persons forcibly opened the gate and entered into the house of the complainant and started damaging the Government Swift car, which was sparked inside the quarter where the complainant resided. When the complainant requested them to not to do so, the accused took out a pistol and ran behind him. When the complainant tried to save himself by entering into a room, the accused fired a gun shot by his pistol. The complainant managed to lock himself inside his room on which the accused persons started banging the door of the room by kicks and also started pelting stones and brickbats. The complainant has specifically alleged that at the time of the incident, his wife and daughter witnesses the assault leached by the accused. They also requested in accused to refrain from their activities but the accused paid no heed and also abused them with caste oriented words. The complainant managed to save himself by locking himself inside the room. Hearing the commotion, people of the colony collected on which the accused ran away. 3. They also requested in accused to refrain from their activities but the accused paid no heed and also abused them with caste oriented words. The complainant managed to save himself by locking himself inside the room. Hearing the commotion, people of the colony collected on which the accused ran away. 3. The complainant informed the police and the police reached his house, whereupon the complainant opened the door of his house and came out. He saw that bricks, stones and broken glass pieces as well as an empty cartridge were lying at the scene of the occurrence. The complainant has further alleged that Poonam Chand was demanding for the payment of a defective road constructed by him and was also asking for the payment of the roads, which were still under guarantee period, which the complainant was not acceding to. The complainant alleged that he had made complaints about the defective roads constructed by Poonam Chand and had also recommended his blacklisting and therefore, Poonam Chand was continuously threatening him by mobile calls over the last few days. The officer did not take the threats seriously but on the day of the occurrence, Poonam Chand, his son and his driver exceeded all the metes and bounds and forcibly entered into his house for the purpose of killing him. 4. On the basis of this report, the F.I.R. No. 252/2012 was registered for the offences under Sections 452, 307 and 427/34 of the I.P.C. and investigation was commenced.Now the petitioners have approached this Court by way of the instant misc. petition seeking quashing of the F.I.R. impugned. 5. This Court whilst considering the arguments advanced at the bar on 28.1.2012, made an inquiry from the learned Public Prosecutor as to why the offence under Section 458 of the I.P.C. and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act were not applied in the case. Thereafter, the learned counsel for the petitioner on 7.2.2013 filed an affidavit of the petitioner No. 2 swearing therein that the petitioners are all belonging to the Scheduled Caste. A certificate issued by the concerned Sarpanch has been placed on record in support of the affidavit. 6. Learned counsel for the petitioner Shri C.S. Kotwani vehemently contends that ex facie from the reading of the F.I.R., none of the ingredients of the offences for which the F.I.R. has been registered, are disclosed. A certificate issued by the concerned Sarpanch has been placed on record in support of the affidavit. 6. Learned counsel for the petitioner Shri C.S. Kotwani vehemently contends that ex facie from the reading of the F.I.R., none of the ingredients of the offences for which the F.I.R. has been registered, are disclosed. He contends that the complainant himself had issued a certificate in favour of the petitioner Poonam Chand that the petitioner had completed the construction of the roads and therefore, there was no rhyme or reason for the petitioners to have barged into the house of the complainant as alleged by him in the F.I.R. He further submits that the allegations of the complainant are absolutely false because neither have the petitioners committed the offence of house breaking nor has the gun been fired because a pistol on being fired does not eject empty cartridges. He further submits that the offence under Section 3 of the SC/ST Act has also been wrongly applied to the case. In support of his arguments he has placed reliance on the decision of Hon'ble Apex Court in the case of Gorige Pentaiah v. State of A.P. & Ors., reported in 2008 AIR SCW 6901 , and submits that there was no allegation in the complaint that the accused knew that the complainant belonged to the Scheduled Caste or Scheduled Tribe and there was an absence of the allegation of intentional humiliation of the complainant at a place within public view, therefore, the prosecution o the accused for the offence under Section 3 of the SC/ST Act could not be permitted. Reliance has also been placed on the decision of the Hon'ble Apex Court in the case of Asmathunnisa v. State of A.P. & Anr., reported in AIR 2011 SC 1905 , wherein the Hon'ble Apex Court considered that the place within the public view means that pubic must view the person being insulted. 7. The Investigating Officer present in the Court has submitted his factual report. It has been mentioned in the factual report that the certificate, which the petitioner has placed on record claiming to be a member of the Scheduled Caste is a concocted certificate. 7. The Investigating Officer present in the Court has submitted his factual report. It has been mentioned in the factual report that the certificate, which the petitioner has placed on record claiming to be a member of the Scheduled Caste is a concocted certificate. It has been mentioned in the factual report that the petitioner Poonam Chand had contested the elections of Municipality, Doongarpur from the Ward No. 8, which is reserved for the persons belonging to the Orientally Backward Classes. It has also been mentioned that the petitioners belong to the OBC and not to the Scheduled Caste. The Investigating Officer has also placed on record the copy of the charge-sheet filed in the Court concerned in pursuance of the F.I.R. No. 51/2006 registered at the Police Station Bichhiwada, wherein the petitioner Poonam Chand has been charge-sheeted for conniving to issue a forged certificate of Scheduled Caste while being the Sarpanch of the village concerned. The copy of the nomination form of the petitioner and the caste certificate filed by him alongwith the election nomination form, wherein the petitioner has shown himself to be belonging to the Orientally Backward Classes has also been filed on record. The Investigating Officer has reported that prima facie, the offences under Sections 452,427/34 I.P.C., Section 3/25 of the Arms Act, 1959 Section 3(1)(x) of the SC/ST Act and Section 3 of the P.D.P.P. Act are found to be made out against the petitioners. 8. Dr. Sachin Acharya learned counsel for the complainant has vehemently opposed the arguments advanced by learned counsel for the petitioners. He submits that the petitioners have filed a false affidavit before this Court regarding their caste and therefore, they are not entitled to be heard in the matter. He further submits that it was a continuous course of events, wherein the accused Poonam Chand was harassing the complainant for making illegitimate payments. He further submits that the place where the accused have launched the verbal assault on the complainant is a place within the public view. He submits that it is the specific allegation of the complainant in the F.I.R. that his wife and daughter saw and heard the accused persons giving abuses to the complainant on the ground of his caste and therefore, the provisions of Section 3(1)(x) of the SC/ST Act would apply to the case. He submits that it is the specific allegation of the complainant in the F.I.R. that his wife and daughter saw and heard the accused persons giving abuses to the complainant on the ground of his caste and therefore, the provisions of Section 3(1)(x) of the SC/ST Act would apply to the case. He therefore, prays that the F.I.R. impugned deserves no interference by exercising the inherent powers of the Court. 9. Heard and considered the arguments advanced at the bar. 10. The Judgments, which have been relied upon by the learned counsel for the petitioner have no application to the present case. In the case of Gorige Pentaiah (supra) there was no allegation in the complaint regarding intentional humiliation at a place within public view. In the instant case, there is such an allegation in the F.I.R. The same was the situation in the case of Asmathunnisa (supra), wherein also, the Hon'ble Apex Court found that there was no allegation regarding the abuses having been hurled at a place within public view. So far as the offence under Section 452 I.P.C. is concerned, the place where the accused have entered is the porch of the house of the complainant wherein two cars were parked for safety. This, as per the definition of house trespass, as set out in Section 442 I.P.C., the act of the accused can definitely be said to be falling within the mischief of the said provision. Since the gunshot fired by the accused was neither aimed at anybody nor has caused any injury or harm, the Investigating Officer has rightly not found the offence under Section 307 I.P.C. made out. However, the presence of the empty cartridges at the scene of the occurrence is definitely corroborative of the fact that the fire arm was used as has been alleged by the complainant in the F.I.R. Therefore, Section 3/25 of the Arms Act has also been rightly found to be made out in the case. A damage by breaking of the glass has been caused to the Government vehicle allotted tot he complainant and therefore, Section 3 of the P.D.P.P. Act can very well be said to be made out from the admitted allegations of the prosecution. Damage has also been caused to the house of the complainant particularly the windows thereof and therefore, Section 427 I.P.C. has also rightly been applied to the case. Damage has also been caused to the house of the complainant particularly the windows thereof and therefore, Section 427 I.P.C. has also rightly been applied to the case. The case of the accused that the complainant had approved payments in his favour and therefore, there was no occasion for the accused to have gone to the house of the complainant cannot be used as a ground for quashing the F.I.R. at this stage. Contrary to the said claim, there are certain documents, which have been relied upon by the learned counsel for the complainant, which show that the works, which were allotted to the accused were not completed and despite this, the accused was pressing the complainant to approve the payments. Therefore, this Court is of the opinion that at this stage this Court is not convinced to hold that the F.I.R. impugned does not disclose any cognizable offence or is filed mala fidely, so as to quash the same while exercising the inherent powers of this Court.The misc. petition thus being bereft of any force is hereby rejected. Stay petition is also rejected.Petition dismissed. *******