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2017 DIGILAW 383 (JHR)

Talewar Murmu v. State of Jharkhand

2017-02-23

ANANDA SEN

body2017
Order : By this application under Section 482 of the Code of Criminal Procedure, the petitioner is challenging the order dated 17.3.2016 passed in Cr.Rev.No.14 of 2016 by which learned District & Additional Sessions Judge-I-cum-Special Judge, Vigilance, Dhanbad has dismissed the revision application and has uphold the order dated 14.1.2016 passed by the Judicial Magistrate, Dhanbad in Complaint Case No.2445 of 2015 whereby the learned Magistrate has refused to take cognizance of the offence under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. A complaint was filed by the complainant which was registered as C.P. Case No.2445 of 2015 against this petitioner for allegedly committing an offence under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The complainant was examined on solemn affirmation and thereafter enquiry witnesses were examined. After completion of examination of the enquiry witnesses, learned Magistrate has taken cognizance for offence under Sections 323, 341, 506/34 of the Indian Penal Code and issued summons against these two petitioners but has refused to take cognizance of offence under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, as he did not find any prima facie case. Challenging the order, the complainant preferred criminal revision being Cr.Rev.No.14 of 2016 which was heard and dismissed by the learned District & Additional Sessions Judge-I-cum-Special Judge, Vigilance, Dhanbad. The Additional Sessions Judge has relied upon a judgment delivered by the Hon’ble Jharkhand High Court in the case Bomshankar Jha & Ors vs. State of Jharkhand & Ors. reported in [2016(1) JBCJ 223] wherein it has been held that in a case of refusal by Officer-in-Charge of police station to record the information, informant is required to send substance of such information, in writing and by post, to the Superintendent of Police concerned, who after investigation either by himself or by a Police Officer not below the rank of Deputy Superintendent of Police, shall direct the Officer-in-Charge to institute a police case. It has also been held that Rule 5(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 is mandatory and violation thereof will vitiate the case of prosecution. The revisional court basing on the said judgment has held that the trial court was correct in not taking cognizance under Section 3(1)(i) (iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The revisional court basing on the said judgment has held that the trial court was correct in not taking cognizance under Section 3(1)(i) (iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. Learned counsel for the petitioner submits that the aforesaid finding of the revisional court is absolutely bad. He submits that though the revisional court has relied upon the judgment in the case of Bomshankar Jha & Ors vs. State of Jharkhand & Ors (supra), yet there are other decision of this Court which runs contrary. He submits that there would be no illegality in taking cognizance of the offence under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, on complaint, even if police authorities have refused to register an FIR. 4. I have heard learned counsel appearing for the petitioner, learned Additional Public Prosecutor and I have gone through the orders. 5. From perusal of the order taking cognizance, I find that the Magistrate did not take cognizance under the provision of section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act on the ground that he did not find any prima facie case made out. It is not the case where cognizance was not taken in view of the judgment in the case of Bomshankar Jha & Ors vs. State of Jharkhand & Ors (supra). It is the revisional court, who has taken into consideration the said judgment. This Court, thus at this stage, is not entering into the dispute whether in view of the judgment, referred to above, cognizance can be taken or not and whether there are contradictory judgment of this Court or not. 6. Since a complaint and other document is on record and the cognizance taking court has found no material to take cognizance under Section 3(1)(i)(iv) (v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, this Court is confining itself as to whether basing on the materials cognizance under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be taken or not. Counsel for the petitioner has read the entire complaint petition and has only pointed out two lines which, as per him, will attract the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The said two lines are reproduced hereinbelow: (1) “SALE JANGLI ADMI HUM LONGE SE PANGA LENE MAHANGA PAREGA”. Counsel for the petitioner has read the entire complaint petition and has only pointed out two lines which, as per him, will attract the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The said two lines are reproduced hereinbelow: (1) “SALE JANGLI ADMI HUM LONGE SE PANGA LENE MAHANGA PAREGA”. (2) The accused persons assaulted the complainant with fist and slap and they brought a bottle of obnoxious liquid and forced the complainant to drink.” 7. This is only two materials, basing on which the complainant harps that cognizance should have been taken. 8. Using the word “Jungli” cannot be said to be an insult/accusation in the name of caste or tribe. The said word can be used in respect of any person of any caste. 9. Further it has been mentioned that some obnoxious liquid was forced but what was the said obnoxious material has not been mentioned. It has not been mentioned that whether the same was inedible or not. In the solemn affirmation, the complainant says that a bottle was put in his mouth. Witness no.1 only says that two persons forced him to drink. What liquid was being made to drink is not mentioned anywhere. The witness no.2 stated that the informant was made to drink something. What was that something has not been mentioned. In solemn affirmation and in the statement of the enquiry witness there is nothing about obnoxious liquid. Basing on these materials, the court below has found that no prima facie material is there to proceed under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 10. This Court feels that basing on these evidences, cognizance cannot be taken under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act though the word “obnoxious” was mentioned in the complaint but in the solemn affirmation and the deposition of the witnesses under Section 202 of the Code of Criminal Procedure, which has been reproduced above, does not suggest prima facie making out any case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for taking cognizance under the same. 11. Thus, I find that the Judicial Magistrate was correct to conclude that no prima facie case is made out which warrants to take cognizance under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 12. 11. Thus, I find that the Judicial Magistrate was correct to conclude that no prima facie case is made out which warrants to take cognizance under Section 3(1)(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 12. I find no merit in this application and hence, the same is dismissed.