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2019 DIGILAW 347 (UTT)

CHARANJEET SINGH v. STATE OF UTTARAKHAND

2019-05-21

RAVINDRA MAITHANI

body2019
JUDGMENT Hon'ble Ravindra Maithani, J. Present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code") has been filed by the petitioners for quashing the entire proceedings of Criminal Case No. 18 of 2018, State Vs. Charanjeet and others, under Section 147, 452, 323 I.P.C. and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act"), pending in the court of learned Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar. 2. Heard learned counsel for the parties and perused the record. 3. Facts, briefly stated, in the instant case are that an FIR was lodged on 05.11.2017 at Police Station Kundeshwari Kashipur, District Udham Singh Nagar under Section 147, 323, 452 I.P.C. and Section 3(1)(x) of the Act. According to it, the first informant, respondent no. 2 herein, belongs to the Scheduled Caste category. On 31.10.2017, he was not at home. At 7.00 P.M. on that day, the petitioners entered into his house and started assaulting the family members of the respondent no. 3 and also used caste coloured remarks. Some persons intervened, thereafter, the petitioners left the home of the respondent no. 3 but still they used caste coloured remarks. After investigation, charge sheet under Section 147, 452, 323 I.P.C. and Section 3(1)(x) of the Act has been filed. 4. Learned counsel for the petitioners has argued only one point that is with regard to the applicability of the Act. According to the learned counsel, in the First Information Report, it is not stated that the petitioners do not belong to scheduled caste and they used caste coloured remarks in order to intentionally insult or intimidate or humiliate the family members of the respondent no. 3 or that it happened in a public view, therefore, it is argued that the provisions of Section 3(1)(x) of the Act are not applicable in the case and charge sheet submitted pursuant to this FIR is not in accordance with law and to that extent, the petition deserves to the allowed and the proceedings against the petitioners under Section 3(1)(x) of the Act deserves to be quashed. 5. In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down by the Hon'ble Supreme Court, in the case of Gorige Pentaiah Vs. 5. In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down by the Hon'ble Supreme Court, in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others (2009) 1 SCC (Cri) 446. In Para 6 of the judgment, Hon'ble Supreme Court has held as under:- “6. In the instant case, the allegation of Respondent no. 3 in the entire complaint is that on 27.05.2004, the appellant abused them with the name of their caste. According to the basis ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law." 6. On the other hand, learned counsel for the respondent no. 3 argued that the first FIR is not an encyclopedia so as to include all the details of the ingredients of the offence. It is information to initiate the law and during investigation, the facts are ascertained. It is argued that merely because the FIR in the instant case, does not categorically include the ingredients of the offence under Section 3(1)(x) of the Act, does not mean that the proceedings may be quashed on this ground alone. In support of his contention, learned counsel has placed reliance upon the principles of laws, as laid down in the case of Ashabai Machindra Adhagale Vs. State of Maharashtra and other (2009) 2 SCC (Cri) 20. In paras 10 and 12 of the Ashabai Machindra Adhagale (supra), the Hon'ble Court has held as hereunder:- “10. It needs no reiteration that the FIR is not expected to be an encyclopedia. State of Maharashtra and other (2009) 2 SCC (Cri) 20. In paras 10 and 12 of the Ashabai Machindra Adhagale (supra), the Hon'ble Court has held as hereunder:- “10. It needs no reiteration that the FIR is not expected to be an encyclopedia. As rightly contended by learned counsel for the appellant whether the accused belongs to Scheduled Caste or Scheduled Tribe can be gone into when the matter is being investigated. It is to be noted that under Section 23(1) of the Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short “the Rules") have been framed. 12. After ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. After final opinion is formed, it is open to the court to either accept the same or take cognizance. Even if the charge-sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to Scheduled Caste or Scheduled Tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to Scheduled Caste or Scheduled Tribe." (emphasis supplied) 7. On this point, learned counsel for the petitioners would argue that whatever law has been laid down in the case of Ashabai Machindra Adhagale (supra) that relates to the offence under Section 3(1)(xi) of the Act and not under Section 3(1)(x) of the Act. 8. The only the controversy is as to whether proceedings under Section 3 of the Act may be quashed only because in the FIR it is not stated that the petitioners do not belong to the scheduled caste category and respondent no. 3 was intentionally insulted or intimidated by the petitioners, with intend to humiliate, in place in public view. 9. The judgment in the case of Gorige Pentaiah (supra) was delivered on 20.08.2008 by two Honble judges of the Supreme Court and the judgment in the case Ashabai Machindra Adhagale (supra) was delivered on 12.02.2009 by the three Hon'ble Judges of the Supreme Court. The two cases do not deal on different areas. 9. The judgment in the case of Gorige Pentaiah (supra) was delivered on 20.08.2008 by two Honble judges of the Supreme Court and the judgment in the case Ashabai Machindra Adhagale (supra) was delivered on 12.02.2009 by the three Hon'ble Judges of the Supreme Court. The two cases do not deal on different areas. Both the cases that is Gorige Pentaiah (supra) and Ashabai Machindra Adhagale (supra) deal with the applicability of the Act. Whether it falls under Section 3(1)(x) of the Act or Section 3(1)(xi) of the Act, it makes no difference. The only question is whether all the ingredients should find place in the FIR. 10. As stated hereinbefore, in the case of Ashabai Machindra Adhagale (supra), the Hon'ble Supreme Court categorically held that the FIR is not expected to be an encyclopedia. And whether the accused belongs to scheduled caste or scheduled tribes can be gone into when the matter is investigated. 11. In the case of Ashabai Machindra Adhagale (supra), it has further been held that after ascertaining the facts during the course of investigation, the Investigating Officer should record that the accused belongs or does not belong to scheduled caste and scheduled tribes. 12. In fact, before the judgment in Gorige Pentaiah (supra) was delivered, in the case of Swaran Singh and others Vs. State through Standing Counsel and another (2008) 8 SCC 435 , one of the question before the Hon'ble Court was as hereunder: “12. The question in this case is whether calling a person “chamar" amounts to intentionally insulting with intend to humiliate a member of the Scheduled Caste." 13. To appreciate as to how the law was interpreted in the case of Swaran Singh (supra), it is apt to reproduce the FIR, which was under consideration before the Hon'ble Court in that case, it is as hereunder; “To SHO PS Chittaranjan Park New Delhi. Sub.: Complaint against Smt. Simran Kaur and her daughter, resident of M-39, Ist floor, G.K. II, New Delhi. Sir, I, Vinod Nagar s/o Shri Ram Singh Nagar r/o A-113, Dakshin Puri, New Delhi work with Shri Umesh Gupta at M-39, Ground Floor, G.K. II as driver since last one year. I belong to Khatik caste. I usually stand near the car which is parked at the gate. Sir, I, Vinod Nagar s/o Shri Ram Singh Nagar r/o A-113, Dakshin Puri, New Delhi work with Shri Umesh Gupta at M-39, Ground Floor, G.K. II as driver since last one year. I belong to Khatik caste. I usually stand near the car which is parked at the gate. Smt. Simran Kaur and her daughter (whose name I do not know but I can identify her) whenever cross nearby since last 15-20 days speak that I am a chuda-chamar and whenever they come I should not come in the way. It hurts my emotions and when I tried to tell this to her husband Shri Sarwan Singh he also said that you are actually a chuda-chamar and hence they are not saying anything wrong. When I told the happening to my employer Shri Umesh Gupta and he talked to Sardar Sarwan Singh and on this Sarwan Singh and on this Sarwan Singh misbehaved and said that he will not let we people stay there. I also came to know that Sarwan Singh has filed a court case against my employer Shri Umesh Gupta. I did not complain earlier because this man may stop saying these words to me. About today on 10.12.2004 around 8.45 a.m. in the morning when I came to duties to the house of Shri Umesh Gupta ji, I took the keys and started cleaning the vehicle. At that time both mother and daughter threw dirty water on me and said that chuda-chamar why did you come and Simran Kaur said that at this time when her daughter goes to office therefore by putting this water on me they were making me to take bath. I have become tense due to this act of their and I feel that I should quit this job but I belong to a poor family and job is my compulsion. Even finding another job is not so easy. When the water was thrown on me at that time guard Albis and Dhan Singh, driver were also present. It is therefore requested that you should take an appropriate action against the abovementioned persons. I shall be thankful to you. Thanks Vinod Nagar s/o Shri Ram Singh r/o A-113, Dakshin Puri New Delhi". 14. After tracing the history of “chamar", in the case of Swaran Singh (supra) the Hon'ble Court has observed as hereunder “22. It is therefore requested that you should take an appropriate action against the abovementioned persons. I shall be thankful to you. Thanks Vinod Nagar s/o Shri Ram Singh r/o A-113, Dakshin Puri New Delhi". 14. After tracing the history of “chamar", in the case of Swaran Singh (supra) the Hon'ble Court has observed as hereunder “22. It may be mentioned that when we interpret Section 3(1)(x) of the Act we have to see the purpose for which the Act was enacted. It was obviously made to prevent indignities, humiliation and harassment to the members of SC/ST community, as is evident from the Statement of Objects and Reasons of the Act. Hence, while interpreting Section 3(1)(x) of the Act, we have to take into account the popular meaning of the word “chamar" which it has acquired by usage, and not the etymological meaning. If we go by the etymological meaning, we may frustrate the very object of the Act, and hence that would not be a correct manner of interpretation. 23. This is the age of democracy and equality. No people or community should be today insulted or looked down upon, and nobody's feelings should be hurt. This is also the spirit of our Constitution and is part of its basic features. Hence, in our opinion, the so-called upper caste and OBCs should not use the word “chamar" when addressing a member of the Scheduled Caste, even if that person in fact belongs to the “chamar" caste, because use of such a word will hurt his feelings. In such a country like ours with so much diversity- so many religions, castes, ethnic and lingual groups, etc.- all communities and groups must be treated with respect, and no one should be looked down upon as an inferior. That is the only way we can keep our country united. 24. In our opinion, calling a member of the Scheduled Caste “chamar" with intent to insult or humiliate him in a place within pubic 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." It was held in the case of Swaran Singh (supra) that a perusal of the FIR clearly shows that, prima facie, offence under Section 3(1)(x) of the Act is made out. 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." It was held in the case of Swaran Singh (supra) that a perusal of the FIR clearly shows that, prima facie, offence under Section 3(1)(x) of the Act is made out. This case was not brought to the notice of Hon'ble Supreme Court, while deciding the Gorige Pentaiah's case (supra). 15. Recently in the case of Manju Devi Vs. Onkarjit Singh Ahluwalia Alias Omkarjeet Singh and Others (2017) 13 SCC 439 , similar question was again posed before the Hon'ble Supreme Court, while reproducing the Statement of Objects and Reasons appended to the Act, in para 15, Hon'ble Supreme Court held in para 16 as hereunder:- “16. In the above context, it is now easy to understand the factual matrix of the case. The use of the word “Harijan", “Dhobi", etc. is often used by people belonging to the so-called upper castes as a word of insult, abuse and derision. Calling a person by these names is nowadays an abusive language and is offensive. It is basically used nowadays not to denote a caste but to intentionally insult and humiliate someone. We, as a citizen of this country, should always keep one thing in our mind and heart that no people or community should be today insulted or looked down upon, and nobody's feelings should be hurt." (emphasis supplied) 16. As stated, the judgment delivered by the Hon'ble Supreme Court in the case of Swaran Singh (supra) was not brought to the notice of the Hon'ble Supreme Court while deciding the case of Gorige Pentaiah (supra). In the case of Ashabai Machindra Adhagale (supra), Hon'ble Supreme Court has specifically held that FIR is not an encyclopedia and whether the accused belongs to scheduled caste and scheduled tribes may be ascertained during investigation. 17. In the instant case, during investigation, the Investigating Officer categorically recorded the statement of the concerned Panchayat Adhikari, Basant Ballabh Pant, who told it to the Investigating Officer that the petitioners belong to the general category and the extract of the family register has been made part of case diary. 18. Now, two things are clear, in the FIR the respondent no. 18. Now, two things are clear, in the FIR the respondent no. 3 states that he belongs to the scheduled caste category and during investigation, it has been ascertained by the Investigating Officer that the accused persons do not belong to the scheduled caste category. Apart from it, witnesses have categorically stated to the Investigating Officer that the petitioners were using word “chamar" in a public view, while abusing them and were saying “kill these chamars". In view of the principle of law as laid down in the case of Swaran Singh (supra), Ashabai Machindra Adhagale (supra) and Manju Devi (supra) in the instant case, case under Section 3(1)(x) of the Act is made out and there are no reasons, which may warrant any interference. Accordingly, the petition deserves to be dismissed. 19. The petition is dismissed.