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Allahabad High Court · body

2017 DIGILAW 172 (ALL)

RAM MURTI BIND v. STATE OF U. P.

2017-01-12

PRAMOD KUMAR SRIVASTAVA

body2017
JUDGMENT : 1. This revision has been preferred against order dated 9.2.2010 passed by Additional Sessions Judge, FTC no. 1, Jaunpur in Special Trial no. 71 of 2009 (State Vs. Ram Murti Bind and others) relating to case crime no. 528 of 2008 P.S. Mugara Badshahpur, Jaunpur. By this order, trial court had rejected the request of discharge of accused/revisionist and directed that they may be charged for offence under Section 323, 394,452,427,504,506 IPC and Section 3(1)(x) SC/ST Act. 2. In said trial the prosecution case in brief is that accused persons had caused damage to the under construction house of the complainant belonging to scheduled caste community and used foul words relating to his caste, beaten him and threatened him. 3. At the time of hearing on the point of charge, the trial Court had considered the case diary and found that through investigation, there was evidence that complainant had supported the incident and there is evidence that in presence of independent witnesses, accused/revisionist had used foul words relating to caste of complainant and caused damages to building material and tanker and took away the bags of cement. The trial court had opined that this incident was committed in public view where words relating to caste were pronounced and complainant was humiliated. Therefore, accused persons should be charged for offence under Section 323, 394,452,427,504,506 IPC and Section 3(I)X SC/ST Act. This order of framing of charge has been challenged through present revision. 4. Learned counsel for the revisionist submitted that in spite of order by District Magistrate for maintaining status quo on spot, the complainant was raising construction for which, on complaint of revisionist, material relating to construction was removed by police; therefore, due to it false case was filed through application under Section 156(3) Cr.P.C. and incorrect charge-sheet was submitted. 5. In this matter, FIR was lodged on the basis of application under Section 156(3) Cr.P.C. Thereafter, after investigation, final report was submitted, which was opposed through protest petition by complainant, then Magistrate had passed order of re-investigation, after which charge-sheet in question was filed. On the basis of it aforesaid Special Trial no. 71 of 2009 was initiated and impugned order was passed. 6. Section 3(1)(x) of the Act reads as under: “3. Punishment for offences of atrocities. On the basis of it aforesaid Special Trial no. 71 of 2009 was initiated and impugned order was passed. 6. Section 3(1)(x) of the Act reads as under: “3. Punishment for offences of atrocities. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i)-(ix) * * * (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; 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.” 7. In Swaran Singh v. State, (2008) 8 SCC 435 Apex Court had held as under: “24. In our opinion, calling a member of the Scheduled Caste “chamar” with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word “chamar” will of course depend on the context in which it was used. 30. ----The use of the word “chamar” will certainly attract Section 3(1)(x) of the Act, if from the context it appears that it was used in a derogatory sense to insult or humiliate a member of SC/ST.” 8. The provision of Section 3(1)(x) of the SC/ST Act and legal position, as noted above, provides that a person can be punished under this provision only when he commit such offence against person of scheduled-caste/scheduled-tribe community on the ground that such a person/victim is a member of SC/ST community. From the evidence in present case, it appears that alleged act of fight had allegedly been committed by accused-appellant only because of already existing enimity and dispute of land and construction. It was not the prosecution case that offence was committed for the reason that victim/complainant belongs to scheduled-caste community. At least there appears no evidence collected during investigation. Therefore even if prosecution case is accepted to be true in toto, in such case the accused should not be charged for offence punishable under Section 3(1)(x) of SC/ST Act. Therefore the finding of trial Court holding the revisionist prima facie guilty for the offence under 3(1)(x) of SC/ST Act is erroneous and is liable to be set aside. 9. There is no finding that the accused/revisionists belongs to schedule caste and schedule tribes community. Therefore the finding of trial Court holding the revisionist prima facie guilty for the offence under 3(1)(x) of SC/ST Act is erroneous and is liable to be set aside. 9. There is no finding that the accused/revisionists belongs to schedule caste and schedule tribes community. This submission of learned AGA is found unacceptable that on the basis of surname of accused, without any investigation, the court should determine the caste of such accused. There appears no finding during investigation or by trial court that accused-revisionist belong to schedule caste or schedule tribes community. A person can be charged for offence under section 3(1)(x) of SC/ST Act only if is not “member of a Scheduled Caste or a Scheduled Tribe”. 10. On one hand, trial court had opined that on the basis of evidences collected during investigation alleged offence was committed in public view, and on the other hand charge for offence under Section 452 is also directed to be framed by impugned order which relate to commission of offence committed inside the house/residential area. There appears no explanation in impugned order. From perusal of impugned order, it appears that these pertinent points were not considered by trial court when it had passed order for framing of the charges, inter alia, for offence under Section 3(1)(x) SC/ST Act. 11. In view of above, this Court finds that material points were not considered by trial court at the time of passing of the impugned order dated 9.2.2010 in aforesaid case. Those points require consideration, but were not considered. Therefore, this impugned order is found erroneous, and this appears appropriate that the matter should be remanded to the trial court for re-hearing on the point of charge. 12. Accordingly, this revision is allowed. The impugned order dated 9.2.1010 passed in Special Trial no. 71 of 2009 (State Vs. Ram Murti Bind and others) is set aside. The matter is remanded back to the trial court with direction to afford fresh opportunity of hearing to prosecution and defence side on the point of charge, and pass appropriate order in accordance with law.