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2016 DIGILAW 746 (ORI)

Kailash Chandra Panda v. State of Orissa

2016-09-06

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Kailash Chandra Panda has challenged the order dated 17.06.2016 passed by the learned Additional Sessions Judge & Special Judge, Phulbani in Sessions Trial No.51 of 2016 in framing charges under sections 420/ 467/ 468/ 294/ 506/ 34 of the Indian Penal Code and section 3(1)(x) of SC/ST (PA) Act. 2. A complaint petition was filed by complainant Gupteswar Kanhar in the Court of learned S.D.J.M., Phulbani basing on which I.C.C. Case No. 46 of 2006 was registered and subsequently under section 156(3) of Cr.P.C., the complaint case was forwarded to the Officer in Charge, Phulbani Sadar Police Station for registration and accordingly, the complaint petition was treated as F.I.R. and Phulbani Sadar P.S. Case No.44 of 2006 was registered on 21.07.2006 under sections 420/ 467/ 468/ 294/ 506/ 34 of the Indian Penal Code read with section 3(1)(x) of SC/ST (PA) Act. It is the prosecution case that in the year 2001, on persuasion of the accused persons, the complainant Gupteswar Kanhar handed over cash of Rs. 80,000/-to the petitioner who was working as the Branch Manager, Sahara India, Phulbani Branch for opening fixed deposit account in his name on the condition that the said amount would be doubled after expiry of five years. After lapse of five years, during January 2006 when the complainant approached the petitioner for withdrawal of the matured amount, the petitioner instructed the complainant to come through the co-accused agents Subrat Tripathy and Taranisan Kanhar. When the complainant approached Subrat Tripathy, he told that the matured money amounting to Rs.1,07,954/-was again deposited by him for a further period of five years and as per the previous terms, the amount would be Rs.1,60,000/-. The complainant suspected some foul play and again contacted Subrat Tripathy who told that there was a loan outstanding of Rs.80,000/-against his name in Sahara India. On inquiry, the petitioner who is the Branch Manager explained that he had availed a loan of Rs.80,000/-from the Branch. It is the further case of the complainant that the petitioner in connivance with Subrat Tripathy and Taranisan Kanhar misappropriated the money of the complainant by manipulating the documents and that he had never availed any loan from Sahara India Branch. It is the further case of the complainant that the petitioner in connivance with Subrat Tripathy and Taranisan Kanhar misappropriated the money of the complainant by manipulating the documents and that he had never availed any loan from Sahara India Branch. It is further stated in the complaint petition that on 19.04.2006 the co-accused Subrat Tripathy and Taranisan Kanhar came to the house of the complainant and abused him in obscene language and threatened to kill him. 3. During course of investigation, the informant was examined and relevant documents were seized and after completion of investigation, finding prima facie case under sections 420/ 467/ 468/ 294/ 506/ 34 of the Indian Penal Code read with section 3(1)(x) of SC/ST (PA) Act, charge sheet was submitted in the Court of learned S.D.J.M.(S), Phulbani, Kandhamal on 06.11.2011 and accordingly, cognizance of offences were taken. 4. After commitment of the case to the Court of Session, perusing the FIR, statements of the witnesses recorded under section 161 Cr.P.C. and other materials available on record and on hearing the parties, the learned Trial Court found sufficient ground for presuming the commission of offences and accordingly, framed charges under sections 420/ 467/ 468/ 294/506/34 of the Indian Penal Code read with section 3(1)(x) of SC/ST (PA) Act. 5. Learned counsel for the petitioner Mr. Jitendra Samantray contended that so far as offence under section 3(1)(x) of the SC/ST (PA) Act is concerned, there is absolutely no material against the petitioner and therefore, the charge should not have been framed against the petitioner for such offence. He further contended that neither in the F.I.R. nor in the statements of any of the witnesses recorded during investigation, there is anything against the petitioner to have intentionally insulted or intimidated with intent to humiliate the informant knowing him as a member of Scheduled Caste or a Scheduled Tribe in any place within public view and therefore, framing of the charge under section 3(1)(x) of the SC/ST (PA) Act is not sustainable in the eye of law. Learned counsel for the State has produced the case diary and placed the complaint petition which was treated as F.I.R. as well as 161 Cr.P.C. statement of the informant Gupteswar Kanhar. 6. Section 3(1)(x) of the SC/ST (PA) Act reads as follows:- “3. Learned counsel for the State has produced the case diary and placed the complaint petition which was treated as F.I.R. as well as 161 Cr.P.C. statement of the informant Gupteswar Kanhar. 6. Section 3(1)(x) of the SC/ST (PA) Act reads as follows:- “3. whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- xxx xxx xxx xxx (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; xxx xxx xxx xxx shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. In order to attract the ingredients of the offence under section 3(1)(x) of the 1989 Act, the following ingredients are required to be proved:- (i) there must be intentional insult or intimidation with intent to humiliate a person; (ii) The person concerned should be a member of either Scheduled Caste or Scheduled Tribe; (iii) The place where the insult or intimidation took place must be within public view. Coming to the averments made in the F.I.R., it is stated that on 19.04.2006 at about 5.00 p.m., the co-accused persons Subrat Tripathy and Taranisan Kanhar appeared in the house of the informant and abused him in filthy language and threatened him not to lodge the First Information Report. Similarly in the 161 Cr.P.C. statement of the informant, it is mentioned that on 19.04.2006 at about 5.00 p.m. the co-accused persons Subrat Tripathy and Taranisan Kanhar came to him and threatened him not to report the matter in the police station and also abused him. On perusal of the F.I.R., statements of the informant as well as other witnesses, it is apparent that there is absolutely no material against the petitioner relating to intentionally insulting or intimidating the informant with intent to humiliate him in any place within public view knowing that he was a member of Scheduled Caste or a Scheduled Tribe. The entire allegation so far such accusation is concerned is against the co-accused persons. There is absolutely no material available on record that the petitioner either instigated the co-accused persons to commit any such overt act or that he was present at the spot when the co-accused allegedly threatened or abused the informant. The entire allegation so far such accusation is concerned is against the co-accused persons. There is absolutely no material available on record that the petitioner either instigated the co-accused persons to commit any such overt act or that he was present at the spot when the co-accused allegedly threatened or abused the informant. In absence of any clinching material available on record, I am of the view that the ingredients of the offence under section 3(1)(x) of the 1989 Act are not attracted against the petitioner. 7. Accordingly, the revision petition is allowed in part and the framing of the charge under section 3(1)(x) of the SC/ST (PA) Act against the petitioner stands quashed. The framing of the charges for other offences against the petitioner remains unaltered.