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2017 DIGILAW 47 (ORI)

Tabati Behe Dalei v. State of Orissa

2017-01-06

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. This revision petition has been filed by Smt. Tabati Behe Dalei who is a member of a Scheduled Tribe challenging the impugned order dated 19.01.2016 passed by the learned Sessions Judge, Gajapati at Paralakhemundi in S.T. Case No. 70 of 2015 which arises out of Serango P.S. Case No. 16 of 2014 in discharging the opp. party no.2 Nimbroda Lima and opp. party no.3 Biswojit Lima of the offences punishable under section 354 of the Indian Penal Code and section 3(1)(x)(xi) of S.C. & S.T. (PA) Act and directing them to face trial only under sections 341, 323, 294 read with section 34 of the Indian Penal Code. 2. The prosecution case as per the first information report lodged by the petitioner before the Inspector in Charge, Serango Police Station on 19.03.2014 is that the informant was the Sarapanch of the Tabarada Gram Panchayat and on 03.03.2014 she came to the Block Office at Nuagada for the purpose of providing Indira Awas houses to the beneficiaries. The opp. party no.2 Nimbroda Lima was present in the Block Office at the relevant point of time and he abused the informant, “Adivasi, Sauruni, Sala Jhia, Kete Patha Padhichhu? Tu Kana mo thu bali jibuki?” Thereafter, opp. party no.2 pulled the saree of the informant and abused her in filthy language and threatened her with dire consequence. At that point of time the opp.party no.3 Biswojit Lima who is the son of opp.party no.2 arrived there and he also caught hold of the hands of the informant and pulled her as a result of which the bangles of the informant broke down. The occurrence which took place in a public place was seen by number of persons present at that point of time at the Block Office. The informant mentioned her caste as Scheduled Tribe in the first information report. 3. On such first information report, Serango P.S. Case No.16 of 2014 was registered under sections 341, 323, 354, 294, 34 of the Indian Penal Code and section 3(1)(x)(xi) of the SC/ST(PA) Act. The informant mentioned her caste as Scheduled Tribe in the first information report. 3. On such first information report, Serango P.S. Case No.16 of 2014 was registered under sections 341, 323, 354, 294, 34 of the Indian Penal Code and section 3(1)(x)(xi) of the SC/ST(PA) Act. During course of investigation, B.G. Mohanty, SDPO, Paralakhemundi examined the informant and other witnesses and recorded their statements under section 161 Cr.P.C. He visited the spot, sent the informant for medical examination to C.H.C., Guma and on completion of investigation, submitted charge sheet under sections 341, 323, 354, 294, 34 of the Indian Penal Code and section 3(1)(x)(xi) of the SC & ST(PA) Act. It is pertinent to note that during investigation of the case, the Investigating Officer collected information from Tahasildar, Nuagada relating to the caste and religion of the informant as well as the opp. parties nos. 2 & 3 and the enquiry report of the Tahasildar, Nuagada dated 18.06.2014 indicates that the informant-petitioner was “Saura” by caste, his religion is Hindu and he belonged to S.T. category whereas the opp. parties nos.2 and 3 belonged to Pano and their religion is Christian and category is “SEBC”. After commitment, at the stage of framing of charge, the opp. parties nos. 2 and 3 filed an application under section 227 Cr.P.C. for discharge. The learned Trial Court after considering the materials available on record has been pleased to hold that the F.I.R., 161 Cr.P.C. statements of the witnesses and other connected papers do not make out a prima facie case under section 3(1)(x)(xi) of the SC & ST(PA) Act so also offence under section 354 of the Indian Penal Code. Further, learned Trial Court found that there are materials against the opp. parties nos. 2 & 3 for commission of offences under sections 341/323/294/34 of the Indian Penal Code and accordingly transferred the case to the Court of learned J.M.F.C.(R), Udayagiri invoking power under section 228(1)(a) of Cr.P.C. to face trial. 4. Further, learned Trial Court found that there are materials against the opp. parties nos. 2 & 3 for commission of offences under sections 341/323/294/34 of the Indian Penal Code and accordingly transferred the case to the Court of learned J.M.F.C.(R), Udayagiri invoking power under section 228(1)(a) of Cr.P.C. to face trial. 4. Learned counsel for the petitioner Smt. Sujata Jena challenging the order of discharge contended that the impugned order suffers from non-application of mind and the observation of the learned Trial Court that there are no prima facie materials to constitute the offences under section 3(1)(x)(xi) of the SC & ST(PA) Act as well as section 354 of the Indian Penal Code against the opposite parties no.2 and 3 either in the F.I.R. or in the 161 Cr.P.C. statements of the witnesses is nothing but an error of record. She further contended that the materials are clinching and the fact that the Tahasildar, Nuagada has submitted the enquiry report indicating that the informant belonged to S.T. category and the opp. parties nos. 2 & 3 belonged to the “SEBC” category and the manner in which the occurrence has taken place, the place where the occurrence has taken place clearly makes out the ingredients of such offence and therefore, it was not proper on the part of the learned Trial Court to discharge the opposite parties nos. 2 and 3 of the offences under section 3(1)(x)(xi) of the SC & ST(PA) Act and section 354 of the Indian Penal Code and therefore, they should face trial before the learned Trial Court for such offences also. None appears on behalf of the opp. party nos. 2 & 3. Learned Addl. Standing Counsel Mr. Deepak Kumar supported the learned counsel for the petitioner and placed the F.I.R. as well as the statements of the witnesses and contended that the observation of the learned Trial Court that there are no prima facie materials to constitute the ingredients offences under section 3(1)(x)(xi)of the SC & ST (PA) Act as well as the section 354 of the Indian Penal Code is not correct. 5. Considering the submissions made by the learned counsel for the petitioner as well as the learned counsel for the State and on perusal of the first information report, it is apparent that in a public place like Block Office, the opp. parties nos. 5. Considering the submissions made by the learned counsel for the petitioner as well as the learned counsel for the State and on perusal of the first information report, it is apparent that in a public place like Block Office, the opp. parties nos. 2 & 3 intentionally insulted and intimidated the petitioner with an intention to humiliate her as a member of Scheduled Tribe and there are also prima facie materials to indicate that they used force to the informant with an intention to dishonour her and also outraged her modesty. The narration made in the F.I.R. gets corroboration from the 161 Cr.P.C. statement of the informant so also from the statement of Raghunath Beherdalei who is the husband of the petitioner as well as the one Nagendra Paika. It is also clear from the documentary evidence which was collected by the Investigating Officer during course of the investigation from Tahasildar, Nuagada that the petitioner is a member of Scheduled Tribe and the opp. parties nos. 2 & 3 are coming under the category of SEBC after their conversion to Christian religion. On the face of such materials, I am of the view that there are sufficient grounds to proceed against the opposite parties nos.2 and 3 for commission of offences under section 3 (1) (x) (xi) of SC and ST (PA) Act as well as section 354 of the Indian Penal Code and therefore, the learned Trial Court was not justified in discharging the opposite parties Nos. 2 and 3 of such offences. The reasons assigned in the order of discharge are based on error on record and therefore, the same is not sustainable in the eye of law. Accordingly, the impugned order is set aside. The matter which is now subjudiced before the learned J.M.F.C., R. Udayagiri in G.R. Case No.32 of 2014 be sent back to the learned Sessions Judge –cum-Special Judge, Gajapati, Paralakhemundi for trial. The learned Trial Court shall frame charge against the opposite parties nos.2 and 3 for offences punishable under sections 341/323/354/294/34 of the Indian Penal Code read with section 3 (1) (x) (xi) of SC and ST (PA) Act and proceed in accordance with law. The learned Trial Court shall frame charge against the opposite parties nos.2 and 3 for offences punishable under sections 341/323/354/294/34 of the Indian Penal Code read with section 3 (1) (x) (xi) of SC and ST (PA) Act and proceed in accordance with law. Since the matter is of the year 2014, the learned Trial Court shall take expeditious steps for disposal of the case within a period of six months from the date of receipt of the records from the Court of learned J.M.F.C., R.Udayagiri. In the result, the CRLREV petition is allowed. A copy of the order be sent to the learned Courts below to do the needful. .………………………. S. K. Sahoo, J. Orissa High Court, Cuttack The 6th January, 2017/Kabita