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2020 DIGILAW 545 (ALL)

Ajay Rastogi v. State Of U. P.

2020-02-19

ANANT KUMAR

body2020
JUDGMENT : 1. Counter affidavit filed on behalf of the State is taken on record. 2. This criminal appeal under Section 14-A (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed for setting aside the entire proceedings of Special Sessions Trial No.115 of 2019, under Sections 323, 504 IPC and Section 3 (1) (dha) of SC/ST Act, pending before the Special Judge, SC/ST Act/Additional Sessions Judge, District Balrampur as well as the summoning order dated 05.07.2019, passed by Special Judge, SC/ST Act/Additional Sessions Judge, Balrampur. 3. It is submitted by learned counsel for the appellant that in this case F.I.R. was lodged by the complainant Shiv Lal to the effect that on 19.02.2019, he had gone in the market. At about 6.30 P.M. he was talking with Om Prakashji. In the meantime, present appellants started giving filthy abuses by addressing caste and started beating. Then anyhow the complainant could be saved by intervention of several people of the locality. 4. It is submitted by learned counsel for the appellants that in the F.I.R. it was mentioned that the complainant was addressed with his caste but when the statement of complainant was recorded during course of investigation, it is stated that abuses were given but it is not mentioned that he was addressed by caste by the appellants. Even the eye witnesses Om Prakash Mishra also not stated that the appellants had addressed the complainant by his caste. Other witnesses Ashish Kumar Soni, Nitesh Kumar Soni, Sahid, Dhiraj Kumar also not confirmed this fact that the complainant was addressed by caste. 5. It is further stated that as per provisions of Section 3 (1) (dha) of SC/ST Act, it is necessary that "whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view." But in the present case during investigation when the statement of eye witnesses and complainant was recorded, he have not stated that the appellants addressed him by caste. 6. It is also stated by learned counsel for the appellant that in the light of the above assertion no case under Section 3 (1) (dha) of SC/ST Act is made out. 6. It is also stated by learned counsel for the appellant that in the light of the above assertion no case under Section 3 (1) (dha) of SC/ST Act is made out. In support of the contention learned counsel for the appellants have placed reliance upon a case law (2009) 1 SCC (Cri) : Gorige Pentaiahi Vs. State of Andhra Pradesh & others wherein in paragraph 6 of the Hon'ble Apex Court has held as under :- "6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic 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." 7. Opposing the appeal, learned A.G.A. has submitted that complainant was addressed by caste in the public view, which was a market place, so, the case under Section 3 (1) (dha) of SC/ST Act is very well made out. 8. However, from the rival contention, this Court finds that though in the F.I.R. it is mentioned that complainant was addressed by caste, as stipulated under Section 3 (1) (dha) of SC/ST Act but in the statements recorded during the investigation, no such assertion has been made by any of the witnesses. Only this much has been stated that complainant was abused but it is not confirm that the complainant was addressed by his caste or not, which is a mandatory requirement of Section 3 (1) (dha) of SC/ST Act. 9. Only this much has been stated that complainant was abused but it is not confirm that the complainant was addressed by his caste or not, which is a mandatory requirement of Section 3 (1) (dha) of SC/ST Act. 9. In view of the above circumstances, to my view the trial court has not properly appreciated the material on record while passing the summoning order against the appellants. 10. Accordingly, the appeal is allowed. The summoning order dated 05.07.2019, passed by the trial court, so far it relates to summoning of the appellants under Section 3 (1) (dha) of SC/ST Act is set aside. However, it is made clear that the trial court shall proceed with the trial relating to other sections in accordance with law.