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2015 DIGILAW 193 (JHR)

Bihari Singh Awadh v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

body2015
ORDER Heard Mr. K.P. Deo, learned counsel for the petitioner and Mr.Vikash Kishore, learned counsel for the State. No one appears on behalf of Opposite Party No. 2, although notices were validly served upon him. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Palojori (Chitra) P.S. Case No. 14 of 1998 including the order dated 29.11.1999, by which cognizance has been taken for the offence under section 504 of the Indian Penal Code and section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. (The Act for short). 3. The prosecution story based on the written statement given by the opposite party no. 2 is to the effect that on 23.02.1998 while he was coming from Girja Dumping, he saw 20-25 CISF Personnels running towards him with lathi. It is alleged that apprehending some trouble, the informant started running back but he was overtaken and surrounded by the CISF Personnels, who assaulted him with lathi, as a result of which, he suffered some injuries. It is also alleged that in course of assault, one of the CISF Personnels took out his revolver and assaulted the informant with the butt of the revolver on his face. It is stated therein that G.M., whose name was not known to the informant, was standing near the Kanta and while abusing the informant was giving an order to assault him. The entire incident, as per the version of the informant, was witnessed by several casual labourers and it was further alleged that C.I.S.F. Personnel removed a sum of Rs.15,300/-from a truck standing there. 4. Based on the aforesaid allegations in the written information, a case was instituted by the police and after investigation, chargesheet was submitted, pursuant to which, cognizance was taken by the learned Sub-divisional Judicial Magistrate Madhupur at Deoghar on 29.11.1999 for the offences under section 504 of the Indian Penal Code and section 3(x) of the Scheduled Caste and Scheduled Tribe Act (Prevention of Atrocities) Act. 5. Learned counsel for the petitioner has assailed the impugned order by stating that the written report of the informant-opposite party no. 2 makes out an offence against CISF Personnels and so far as the petitioner is concerned the only allegation is that he was standing on the spot and was instigating the CISF Personnels to assault the informant. 5. Learned counsel for the petitioner has assailed the impugned order by stating that the written report of the informant-opposite party no. 2 makes out an offence against CISF Personnels and so far as the petitioner is concerned the only allegation is that he was standing on the spot and was instigating the CISF Personnels to assault the informant. He has submitted that the offence under section 3(x) of the Act as against the petitioner is not attracted since specific allegations have only been levelled against CISF Personnels. He has further submitted that the petitioner being the General Manager, S.P. Mines, Chitra has been falsely implicated in this case because on the same date i.e. on 23.2.1998, the contractual labourers were involved in an agitation and had prevented proper functioning of the offices, as a result of which, the petitioner had instituted an FIR against several of those persons. 6. Learned counsel for the State, on the other hand, has submitted that the allegations in the FIR do reveal an offence, which is made out against the petitioner as it has been stated by the informant that petitioner had used abusive language and had goaded the CISF Personnels to heckle and assault the informant-opposite party no. 2 herein. 7. After considering the arguments on behalf of the parties and after going through the records, I find that the petitioner, who was the General Manager, S.P. Chitra Mines at the relevant point of time, had already instituted an FIR on account of obstruction of work in the Mines and its offices by the contractual labourers but on the same day, an FIR was also instituted against the CISF Personnels as well as the present petitioner. The allegations made in the written information have to be seen in the context of the conditions, which were prevalent when the alleged occurrence is said to have taken place. In this context, the case diary, which has been received in the present case, has also been perused. The case diary contains the restatement of the informant and paragraph 10 contains the statement of one Ram Sharan Singh whereas the statement of Pradip Rana is recorded at paragraph 15. However, the statements of several injured witnesses are conspicuously absent. Moreover, the statements given by Ram Sharan Singh and Pradip Rana under section 161 Cr.P.C. do not attribute any specific role to the petitioner. 8. However, the statements of several injured witnesses are conspicuously absent. Moreover, the statements given by Ram Sharan Singh and Pradip Rana under section 161 Cr.P.C. do not attribute any specific role to the petitioner. 8. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC. 9. In his written report, the informant had himself stated that when CISF Personnel had assaulted him, the petitioner who was standing near the weigh bridge started using abusive language and was provocating the CISF personnel to assault. The written report thus discloses that prior to the alleged provocation by the petitioner the assault on the informant had already taken place. Moreover, as has been stated earlier, corroboration is lacking with respect to the alleged provocation given by the petitioner. Thus, in absence of the essential ingredients constituting an offence punishable under section 504 of the Indian Penal Code, the petitioner cannot be allowed to be prosecuted for the same. 10. As regards, the submission of learned counsel for the petitioner that in terms of Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rule, 1995 an offence committed under the Act shall be investigated by a police officer not below the rank of Dy.S.P. has not been fulfilled since in the present case the investigation has been conducted by the Sub Inspector of Police, absence of such pre requisites strikes at the very root of inception of the criminal case. Section 9 of the Act confers power on the State Government if it considers it necessary or expedient so to do for the prevention of and for coping with any offence under this Act, or for any case or class or group of cases under this Act, in any district or part thereof, by notification in the official gazette, on any officer of the State Government, the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, as also the powers of arrest, investigation and prosecution of persons before any Special Court. Section 9, thus, empowers the State Government if it considers it necessary by notification in the official gazette to confer the powers of arrest, investigation or prosecution on any officer of the State Government. In this case, the State Government has not brought on record any such notification with respect to conferment of powers on any officer of the State Government in terms of section 9 of the Act in order to contradict the submission of the petitioner. Therefore, in such circumstances also, the investigation itself is bad in law as the investigating officer was neither conferred with the power to investigate under section 9 of the Act nor was he in the rank of Dy. S.P. to come under the purview of Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rule, 1995. 11. In view of what has been discussed above, I find merit in this application. This application is accordingly allowed. The entire criminal proceeding in connection with Palojori (Chitra) P.S. Case No. 14 of 1998 including the order dated 29.11.1999, by which cognizance has been taken for the offence under section 504 of the Indian Penal Code and section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)Act, is hereby quashed.