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2017 DIGILAW 1248 (ALL)

ASHOK KUMAR TEWARI v. STATE OF U. P.

2017-05-10

PANKAJ NAQVI

body2017
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Adarsh Kumar, learned counsel for the applicant, Sri Dipak Srivastava, learned counsel for O.P. No. 2 and the learned A.G.A. 2. This application under Section 482 Cr.P.C has been filed for quashing the proceedings of Criminal Case No. 2215/2015, under Sections 504/506 IPC and 3(1)(x) of SC/ST Act, P.S. Nawabganj, Kanpur Nagar, pending in the Court of A.C.M.M-VIII, Kanpur Nagar. 3. The O.P. No. 2 / informant is a Lecturer in the Department of Geography, lodged the above FIR on 13.3.2014 against the applicant, a Reader in the Department of Defence Studies, in the same college, alleging that on 26.8.2012 (Sunday) at about 6.41 P.M, she received a threatening call as well as caste-abusive words from the applicant on her mobile that in the event she is again seen in his Department, she would be thrown out and humiliated; the informant / O.P. No. 2 contacted the Principal and the Manager of the College on 27.8.2012, submitted a written complaint, followed by reminders on 3.9.2012 and 19.9.2012, but no action was taken. It was alleged by the informant that she is a scheduled caste, working in the college since 1995, earlier in February, 2011, applicant had committed a similar misconduct, but on the assurance that the said conduct would not be repeated, she desisted from initiating any action. During investigation, statement of the informant was recorded, wherein she reiterated the allegations. Statement of one Dr. Anand Shankar Bhatnagar, the present Principal of the college was recorded, who was stating that the dispute relates to the period prior to his current tenure and at that time, Dr. Sardesai was the Principal who had conducted an inquiry on the complaint made by the informant, wherein no new fact came into light; there is an ongoing dispute relating to seniority between them. Statement of Dr. Dileep B Sardesai was also recorded who stated that on 9.8.2012 he was the Principal of the College, an Admission Committee for the academic session 2012-13 of B.A Part-II (non-practical) was constituted by him in which the name of the informant / Dr. Statement of Dr. Dileep B Sardesai was also recorded who stated that on 9.8.2012 he was the Principal of the College, an Admission Committee for the academic session 2012-13 of B.A Part-II (non-practical) was constituted by him in which the name of the informant / Dr. Aruna Kumari, was not shown as a member, Room No. 18 was allotted to the Admission Committee to carry out the requisite work, but the Coordinator of the Admission Committee, Kanchan Mishra, without taking his permission, starting carrying out the work of the Admission Committee from the department of Defence Studies after co-opting the informant which was in the teeth of his written instructions dated 9.8.2012. Subsequently, investigation of the case was handed over to the Circle Officer, who was reporting that as the call detail particulars of both the mobile phones were weeded out, same are not available. The C.O. concerned after investigation, recommended a final report on 19.9.2014. 4. It appears that in the meanwhile, informant approached the Scheduled Caste / Scheduled Tribe Commission, New Delhi, obtained an order of further investigation, pursuant to which the matter was re-investigated and the C.O. concerned on 17.11.2014 requested the S.S.P concerned that final report be rejected and permission to file charge-sheet be granted. The charge-sheet came to be submitted against the applicant under Sections 504/506 IPC and 3(1)(x) of the SC/ST Act on 20.11.2014. The learned Magistrate on 9.7.2015 took cognZance of the above offences and summoned the applicant for above offences. 5. Learned counsel for the applicant submits that on a bare reading of the FIR / charge-sheet, no offence whatsoever is made out, the alleged prosecution is an outcome of malice / mischief on the part of one Dr. Kanchan Mishra, who instigated the informant to file the motivated FIR. Learned counsel for the informant has vehemently opposed the submission on the ground that at this stage, correctness / veracity of allegations cannot be examined, the FIR / Charge-sheet prima facie discloses commission of offences. 6. Kanchan Mishra, who instigated the informant to file the motivated FIR. Learned counsel for the informant has vehemently opposed the submission on the ground that at this stage, correctness / veracity of allegations cannot be examined, the FIR / Charge-sheet prima facie discloses commission of offences. 6. The Apex Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 while reiterating the principles laid down in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 , culled out categories of cases, wherein at a threshold stage, criminal prosecution could be quashed either in exercise of powers under Article 226 of the Constitution or under Section 482 Cr.P.C, as the case may be, with a view to either prevent abuse the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to compartmentalZe each and every such contingencies, but nevertheless following categories were mentioned in Amit Kapoor (supra): (1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. (2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. (3) Where the factual foundation for an offence has been laid down, the Courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. (4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate Courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. (6) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. (7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. (8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. (9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, doe not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offfence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offfence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. (10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. Even in such cases, the Court would not embark upon the critical analysis of the evidence. (11) Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. (12) It is neither necessary nor is the Court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. (13) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. (14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. (15) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. (16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the Courts exist. (17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration. Section 3(1)(x) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act, 1989 is quoted hereunder : 3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,? (17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration. Section 3(1)(x) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act, 1989 is quoted hereunder : 3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,? (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; 7. To constitute an offence under the aforesaid provision, it must be alleged that the accused intentionally insulted or intimidated with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. The applicant is alleged to have used caste-words over a mobile phone call to the informant, a member of Scheduled Caste, of which there are no records. To a pointed query by the I.O, as to whether the informant has any call records in respect of the alleged conversation or not, she replied in the negative. The informant was also admitting in her statement under Section 161 Cr.P.C that there was no witness to the alleged conversation as it was inside her house. Once informant herself admits that the alleged conversation over a mobile phone with the applicant was neither done in any public gaze nor witnessed by any 3rd party, the alleged use of caste-word cannot be said to have been committed within the public view. The Apex Court in the case of Gorige Pentaiah v. State of Andhra Pradesh and others, 2009 (64) ACC 430 has held that in the event the caste-words are not used in public view, an accused cannot be hauled up for an offence under Section 3(1)(x) of the Act. Thus, no offence under Section 3(1)(x) of the Act is made out. 8. Section 506 is quoted hereunder : 506. Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. 8. Section 506 is quoted hereunder : 506. Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 9. A perusal of the FIR / statement unequivocally indicates that there is no threat either of causing death or grievous hurt, thus no offence under Section 506 (ii) is made out. Once the primary offence, i.e., 3(1)(x) of the Act is not made out, Sections 504/506(1) IPC loses its sheen. 10. This Court is of the view that the above criminal prosecution is an abuse of the process of the Court as on uncontroverted allegation, no offence is made out. 11. The application succeeds and is allowed. The proceedings of Case No. 2215/2015, under Sections 504/506 IPC and 3(1)(x) of SC/ST Act, P.S. Nawabganj, Kanpur Nagar, pending in the Court of A.C.M.M-VIII, Kanpur Nagar are quashed.