C482/476/2021 of VIJENDRA PAL SHARMA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 476 of 2021

Vijendra Pal Sharma and others …........ Applicants

State of Uttarakhand and others …..... Respondents

Present : Mr. Amit Kapri, Advocate for the petitioners. Mr. Ranjan Ghildiyal, A.G.A. for the State.

Mr. Shubhang Dobhal, Advocate with Mr. Aviral Fartyal, Advocate for the respondent no. 3.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to the Chargesheet dated 18.08.2020, summoning order dated 18.08.2020, passed in Special Sessions Trial No. 08 of 2020, State v. Vijendra Pal Sharma and others, under Sections 323, 427, 504 IPC and Section 3 (1) (r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“the Act), by the court of Special Judge (SC ST Act)/Sessions Judge, Dehradun (“the case”).

2. Heard learned counsel for the parties and perused the record.

3. The case is based on an FIR lodged by the respondent no. 3 (“the informant”) on 23.05.2020 at Police Station Vasant Vihar, Dehradun. The petitioner no. 1 and the informant, both are neighbours, working in the same Department.

4. During the course of argument, it is admitted on behalf of the learned counsel for the parties that the petitioner no. 1 is Ranger, whereas the informant is the Assistant Director in the Forest Department. They were living in the same locality. Their houses are opposite to each other.

5. According to the FIR, on 24.03.2020, the petitioner no. 1 threw empty bottles of liquor and other garbage in front of informant’s house, to which he objected saying that it is period of Corona, so one should be mindful of cleanliness. According to the FIR, at it, the petitioners abused the informant with caste coloured remarks and attacked him and his family members, due to which the wife of the informant sustained injuries. There are other averments as well in the FIR. It is this FIR, in which, after investigation chargesheet has been submitted against the petitioners and proceedings of the case instituted.

6. Learned counsel for the petitioners would submit that no offence under the Act is made out because the alleged incident did not take place in any public view; the medical of the injured has been procured from private hospital and earlier also the informant had filed complaints against the petitioner no. 1 in his Department. He is inimical to the petitioners.

7. Learned counsel for the petitioners placed reliance on the principle of law as laid down by the Hon’ble Supreme Court in the case of Hitesh Verma v. State of Uttarakhand and another, (2020) 10 SCC 710.

In the case of Hitesh Verma (supra), the Hon’ble

8. In the case of Hitesh Verma (supra), the Hon’ble Supreme Court took into consideration the words “any place within public view”, and referring to earlier judgments observed “It was held that if an offence is committed outside the building e.g. in lawn outside house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be place within the public view”.

9. On the other hand, learned counsel for the informant would submit that the principles of law as laid

down in the case of Hitesh Verma (supra) are not applicable to the instant case because in that case, the parties were already claiming their title in civil litigation. In the instant case, there is no such litigation pending between the parties. The petitioners were aware that the informant belongs to Scheduled Caste. Reference has been made to Section 8(c) of the Act, which reads as hereunder:-

“8. Presumption as to offences.—In prosecution for an offence under this Chapter, if it is proved that—

(a) ………

(b) ………

(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.”

10. Learned counsel for the informant would submit that prima facie offence under the Act is made out. He placed reliance on the principle of law as laid down in the case of Swaran Singh and others v. State through Standing Counsel and another, (2008) 8 SCC 435.

Particularly, reference has been made to para 8 and 22 of the judgment, which read as hereunder:-

“8. It may be noted that the trial has still to be held and the appellants will have an opportunity of establishing their innocence in the trial. At this stage all that the High Court can see in the petition under Section 482 CrPC or in writ petition, is whether on perusal of the FIR, treating the allegations to be correct, criminal offence is prima facie made out or not or whether there is any statutory bar vide Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] (vide SCC para 12), State of Orissa v. Saroj Kumar Sahoo [(2005) 13 SCC 540 : (2006) 2 SCC (Cri) 272] (vide SCC paras 9 and 10), etc. At this stage the correctness or otherwise of the allegations in the FIR has not to be seen by the High Court, and that will be seen at the trial. It has to be seen whether on perusal of the FIR, prima facie offence is made out or not.

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 correct manner of interpretation.”

11. It is also argued that in the instant case, the offences have been committed on pathway and the neighbours have also witnessed. They intervened also.

12. It is petition under Section 482 of the Code of Criminal Procedure, 1973 (“the Code”). The jurisdiction is too wide to ensure the ends of justice. It is also much guided by the principles of law, as laid down by the Hon’ble Supreme Court in the catena of decisions. In the case of Indian Oil Corporation vs. NEPC India Ltd. and others, (2006)6 SCC 736, the Hon’ble Supreme Court culled up the principles and observed as hereunder:-

“12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd.

Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are:

(i) complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as whole, but without examining the merits of the allegations. Neither detailed inquiry nor meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of complaint.

(ii) complaint may also be quashed where it is clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) given set of facts may make out: (a) purely civil wrong; or (b) purely criminal offence; or (c) civil wrong as also criminal offence. commercial transaction or contractual dispute, apart from furnishing cause of action for seeking remedy in civil law, may also involve criminal offence. As the nature and scope of civil proceeding are different from criminal proceeding, the mere fact that the complaint relates to commercial transaction or breach of contract, for which civil remedy is available or has been availed, is not by itself ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose criminal offence or not.”

13. Mainly, arguments have been raised with regard to the application of the provisions of the Act. On

behalf of the petitioners, it is submitted that the alleged offence did not take place in public view. The FIR records that in front of the house of the informant, garbage and empty bottles were thrown. When objected, the informant was abused with the caste coloured remarks and he and his family members were attacked.

14. In their statements given to the IO, the informant, his wife and others have categorically stated that one Mr. Pant and other neighbours intervened in the matter. It is not case that the offence took place inside any house. Therefore, the argument with regard to public view has less force as such.

15. Even if the medical examination report is given by some doctor, who is not on Government job, it does not make such medical examination report unreliable or non-credible. After all, report has to be examined, not the status of the doctor, who conducted the medical examination. Therefore, merely because the medical examination report has been given by some private doctor, it cannot be said that no prima facie case is made out.

16. The question is as to whether offence under the provisions of the Act has been made out or not? What was the reason or genesis of the offence?

In the case of Hitesh Verma (supra), the Hon’ble

17. In the case of Hitesh Verma (supra), the Hon’ble Supreme Court has referred to the applicability of the provisions of the Act. If there is some fight between the two parties for some reasons and in such fight, if one of the parties abuses the other person with caste coloured remarks, in all such cases offence under the Act may not be made out. In para 13 of the judgment, in the case of Hitesh Verma (supra), the Hon’ble Supreme Court observed as hereunder:-

“13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate member of Scheduled Caste or Scheduled Tribe. All insults or intimidations to person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either

the indignities, humiliations or harassment. Every citizen has right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is member of Scheduled Caste.”

(emphasis supplied)

18. In fact, earlier also in the case of Khuman Singh v. State of Madhya Pradesh, (2020) 18 SCC 763,the Hon’ble Supreme Court while interpreting Section 3 (2) (v) of the Act observed “The offence must have been committed against the person on the ground that such person is member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar”— Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable”.

19. In the case of Hitesh Verma (supra), the Hon’ble Supreme Court observed “In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against person who claims title over the property. If such person happens to be Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.”

20. In the instant case, the FIR and the statements of the witnesses given to the IO during investigation, reveal that the dispute arose when the petitioner no. 1 allegedly threw garbage and empty bottles in front of the house of the informant. The informant objected to it on the ground that during Corona period one should be mindful of cleanliness. Thereafter, the incident took place. Therefore, merely because the informant belongs to Scheduled Caste, it cannot be said that the offence under the provision of the Act is prima facie made out.

21. It is true that in the case of Hitesh Verma (supra), the parties were in litigation in the civil suit. In the instant case, there was no such case pending, but the genesis was different. The dispute arose on throwing of garbage and empty bottles by the petitioner no. 1. The

incident did not take place only because the informant belongs to Scheduled Caste.

22. On behalf of the informant, it is being argued that the garbage and empty bottles were thrown in front of his house only because he belongs to the Scheduled Caste.

23. This Court in the proceeding under Section 482 of the Code may not interpret or scrutinize the statements. This Court cannot also take what is being argued before this Court. According to the FIR, the dispute arose when the petitioner no. 1 threw empty bottles and garbage in front of the house of the informant. The FIR does not record that such bottles and garbage were thrown in front of the house of the informant on account of the informant belonging to the category of Scheduled Castes. In his statement given to the IO, the informant has not stated that the garbage and empty bottles were thrown in front of his house only on account of his belonging to Scheduled Caste category. Smt. Arti (wife of the informant) has also not stated it. Both the petitioner no. 1 and the informant have been working in the same Government Department. They were neighbours.

24. Alleged insult or intimidation is not on account of the informant belonging to Scheduled Caste or Scheduled Tribe. In fact, it was dispute, which, as stated, arose on petitioner no. 1 throwing garbage and empty bottles. Therefore, this Court is of the view that prima facie offence under Section 3 (1) (r) is not made out.

25. In so far as the offence under Sections 323, 427, 504 IPC is concerned, prima facie the offence is made out. Accordingly this Court is of the view that the petition deserves to be partly allowed.

26. The petition is partly allowed.

27. Since no prima facie case under Section 3 (1) (r) of the Act is made out, the petitioners shall not be prosecuted under the provision of the Act. However, trial of the case shall proceed against the petitioners for the offences punishable under Section 323, 427, 504 IPC. The impugned summoning order is modified to the extent, as indicated above.

Avneet/

(Ravindra Maithani, J.)

23.05.2022