Court No. - 87
Reserved on 27.11.2021 Delivered on 21.12.2021
Case :- CRIMINAL APPEAL No. - 3693 of 2020
Appellant :- Amalesh Singh
Respondent :- State of U.P. and Another
Counsel for Appellant :- Neeraj Kumar Srivastava, Pankaj Kumar
Counsel for Respondent :- G.A., Vimlesh Kumar Rai
Hon'ble Mrs. Sadhna Rani (Thakur), J.
The appellant – Amalesh Singh is aggrieved by the charge sheet dated 21.06.2019 and the cognizance order dated 07.12.2019 passed by the Special Judge, SC/ST Act, Mirzapur in Special Sessions Trial No. 113 of 2019 arising out of Case Crime No. 333 of 2018 under Sections 506, 353, 427 I.P.C. and Section 3 (1)(da) SC/ST Act, Police Station Kotwali Dehat, District Mirzapur.
The facts germane to this appeal are that on 16.10.2018 at 20.55 hours A.K. Singh, Executive Engineer, U.P. Jal Nigam, Bathua, Gandhi Ghat, Nakahra Road, Mirzapur lodged an F.I.R. under Case Crime No. 333 of 2018 with the allegation that the contractor Amalesh Singh along with his companion Anil Kumar is lodging forged complaint on the basis of forged allegations. He is being given life threats. The said contractor is a criminal type person. Previously also in the office he misbehaved and did the reprehensible act of tearing the agreement. So the staff has to work under consternation alleging insecure atmosphere. By his work the hindrance is created in the public work. The higher authorities have been informed of the same previously also so the first information report be lodged and action be taken and security be provided so that the official work be run smoothly. On the basis of this first information report the investigation was done which culminated in charge sheet No. 143 of 2019 dated 21.06.2019 under Sections 353, 506, 427 I.P.C. and Section 3 (1) (da) of SC/ST Act. After receiving the charge sheet the Special Judge, SC/ST Act, Mirzapur vide order dated 07.12.2019 took cognizance and summoned Amalesh Singh and Anil Kumar unde sections 506, 353, 427 I.P.C. and Section 3 (1) (da) of SC/ST Act to face the trial.
The present appeal assails the impugned charge sheet dated 21.06.2019 and cognizance order dated 07.12.2019 on the ground that there is no allegation of any use of derogatory/stigmatized caste based language by the appellant and in the absence of any such categorical allegation of caste based abusive language provisions of SC/ST Act cannot be said to be attracted even then the lower court in a very whimsical manner took the cognizance against the evidence on record. The cognizance order is wholly illegal, arbitrary and perverse. The entire proceeding is sheer and misuse of process as opposite party no. 2 for disbursement of the amount of complainant was demanding illegal gratification. Only in retaliation of the same he has been falsely implicated. The court without applying its judicial mind has passed the impugned order. The whole prosecution story is false and frivolous and he has been falsely culminated in the present case. Regarding disbursement of his amount the appellant has filed various writ petitions against the opposite party no. 2 and as the appellant used to ventilate the illegal acts of the complainant-opposite part no. 2 on the basis of the same the complainant opposite party no. 2 was suspended on 19.08.2014 on the charges of embezzlement and misappropriation. The allegation regarding tearing of contract/agreement is very astonishing because as the contract has been passed so there is no question of tearing the same. The first information report dated 16.10.2018 regarding the incident dated 23.05.2018 is with inordinate delay and no plausible explanation has been given for the same. The appellant is a law abiding person, who has no criminal history in his credit except the present case so prayer for quashing the charge sheet dated 21.06.2019 and set aside the cognizance order dated 07.12.2019 is made.
Counter affidavit has been filed on behalf of State wherein it is submitted that the first information report was registered disclosing commission of cognizable offence and in such matter police has unfettered right to investigate by virtue of provision of Section 173 (2) Cr.P.C. and mere submission of charge sheet does not fall within the category of abuse of process of law. The complainant and the witnesses Sanjay Kumar Jaiswal, Manoj Kumar Dubey, Praveen Chaurasiya, Dinesh Kumar Ram and Jitendra Jaiswal in their statements under Section 161 Cr.P.C. have supported the prosecution case and have named the accused appellant regarding his active involvement in the commission of crime. The Investigating Officer after conducting the fair and impartial investigation submitted charge sheet on the basis of credible and clinching evidences collected during the course of investigation against the appellant/accused person and the Special Judge after perusing the entire evidence contained in the case diary has rightly taken the cognizance of the offence in accordance with law. The impugned order is just, perfect and legal, which suffers from no infirmity in the eyes of law and the appellant has failed to bring on record any abuse of process of law/court either in submitting in charge sheet or in taking cognizance or in summoning the accused appellant, hence no good ground is made out for quashing the entire proceedings as well as charge sheet and order taking cognizance of the offence. The accused appellant has an alternative remedy to raise his all sort of objections before the trial court at the time of framing charges. Hence, prayer for dismissal of appeal is made.
Rejoinder affidavit has also been filed by the appellant reiterating his previous version. The first information report was lodged only under Sections 506, 353, 427 I.P.C. but during investigation the Investigating Officer with collusion of opposite party no. 2 added Section 3 (1) (d) of SC/ST Act only on the basis of statement of Dinesh Kumar Ram under Section 161 Cr.P.C. dated 04.06.2019. This statement does not contain a single word with regard to caste based stigmatized language. Even then the Investigating Officer submitted the charge sheet before the Court under the provisions of SC/ST Act. Therefore, the entire criminal prosecution is initiated by the opposite party no. 2 due to ulterior motive and malafide intention and the same is liable to be set aside. Neither the entire material of the case diary nor the statement of the informant and his witnesses whispered a single word, which substantiate to constitute the offence under Section 3(1) (d) of SC/ST Act. The Investigating Officer conducted the investigation under influence of opposite party no. 2 in illegal manner and without any evidence or material on the record and the lower court also did not apply his judicial mind and overlooked the entire materiel as well as the evidence available on the record in the form of case diary and straightway took the cognizance against the appellant, hence the cognizance order is not sustainable in the eyes of law and is liable to be set aside.
By filing further rejoinder affidavit it is contended by the learned counsel for the appellant that after lodging the first information report about incident dated 23.05.2018 he was handed over the cheques regarding his work on 12.07.2018 and 13.07.2018 while he refused to the illegal demand of the opposite party no. 2 then in retaliation this first information report has been lodged. Hence, the prayer is made to quash the charge sheet dated 21.06.2019 and set aside the cognizance order dated 07.12.2019.
If we go through the first information report it is only regarding death threat given by the accused persons mentioned therein to the complainant A.K. Singh. It is also submitted that the accused persons/appellants are lavelling forged allegations and making forged complaints though no any such forged or otherwise any complaint has been placed before the court. It is clearly mentioned in this first information report that he is being given life threats by the accused persons.
If we go through the case diary on the basis of statements of Sanjay Kumar Jaiswal, A.K. Singh-complainant, Manoj Kumar Dubey, Prveen Chaurasiya, Dinesh Kumar Ram and Jitendra Jaiswal under Section 161 Cr.P.C., the Investigating Officer is said to have filed charge sheet. In all these statements not even a single word has been uttered regarding life threats given by the accused appellant to the complainant. Rather the complainant himself in his statement under Section 161 Cr.P.C. has stated that on 23.05.2018 he had gone to Lucknow and when he came back all the officials including Dinesh Kumar Ram referred him the incident dated 23.05.2018 that the present appellant Amalesh Singh and co-accused Anil Kumar snatched the file from Dinesh Kumar Ram and tore the agreement and gave life threats and thus the unwarranted incident occurred that day which was reported to him by the official staff. He conveyed the same to his higher authorities and with consent of all of them on 16.10.2018 he filed this complaint in the police station concerned.
This whole statement of present complainant Arun Kumar Singh makes it clear that no incident took place against him, whatever happened on 23rd May, 2018 that was with Dinesh Kumar, an official of his office only. He has not mentioned even a single word in support of his complaint in his statement that he was given life threat by the accused person.
So far as the other allegations are concerned, the first information report is admittedly registered under Sections 506, 353 and 427 I.P.C.
and the charge sheet has been filed under Section 3(1) (da) SC/ST Act also along with above sections of I.P.C.
In the first information report there is no whisper of scheduled caste or the caste of any person or about the intentional humiliation of any person on the basis of his caste. In all the statements present on the record under Section 161 Cr.P.C. none of the witnesses including the complainant has uttered a single word that the complainant or any of the official belongs to scheduled caste. Of course, the witness Dinesh Kumar Ram has mentioned in his statement under Section 161 Cr.P.C. that he belongs to scheduled caste and this fact was known to the accused person/appellant. Now it is to be seen whether only being a member of scheduled caste can attract the provision under Section 3 (1) (da) of SC/ST Act.
Section 3 (1) (da) of SC/ST Act is reproduced as under:-
“3. Punishments for offences of atrocities.--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
The basic ingredients of Section 3 (1) (r) of SC/ST Act can be classified as;
(1) intentionally insults or intimidate with intent to humiliate a member of Scheduled Caste or Scheduled Tribe and
(2) in any place within the public view.
Thus, all insult or intimidation to a person will not be an offence under the Act unless such insult or intimidation is with intention to humiliate the person belonging to the scheduled caste or scheduled tribe and that to in the place within the public view. The Apex Court in the judgement Hitesh Verma Vs. The State of Uttarakhand and another in Criminal Appeal No. 707 of 2020 (arising out of SLP (Criminal) No. 3585 of 2020) has expressed its view as under:-
“The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offences as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community.
Thus, the offence under the Act would be made out when a member of vulnerable section of the society is subjected to indignities, humiliation and harassment and in the allegation of first information report and the statement of Dinesh Kumar Ram, who is said to be the direct victim of the act of the appellant, nowhere the word humiliation, intentional insult or intimidation with intent to humiliate the member of scheduled caste and scheduled tribe has been mentioned. In his statement Dinesh Kumar Ram has only asserted that he is a member of scheduled caste and this fact was known to the appellant so in my opinion only being a member of scheduled caste or this fact being known to the accused person will not attract the ingredient of Section 3
(1) (r) of SC/ST Act.
It has been opined by the Apex Court in judgement Khuman Singh Vs. State of Madhya Pradesh, 2019 SCC Online SC 1104 also that the deceased belonged to scheduled caste would not be enough to inflict the punishment. It was held that there was nothing to suggest that the offence was committed by the appellant only because the victim belonged to scheduled caste. It was opined in para-15 of the judgement that the offence must have been committed against the person on the ground that such person is a member of scheduled caste or scheduled tribe and there must be evidence to show that the offence was committed on the ground that the victim was a member of scheduled caste and therefore, the conviction of appellant accused under SC/ST Act was found to be not sustainable.
The Apex Court in the judgement Hitesh Verma (supra) found that the offence under the Act is not established merely on the fact that the informant is a member of scheduled caste unless there is an intention to humiliate a member of scheduled caste or scheduled tribe for the reasons that the victim belongs to such caste.
In the case in hand neither in the first information report nor in the statement of any of the witnesses including the said victim Dinesh Kumar Ram it has come that the offence was committed against him with intention of humiliating him being a member of scheduled caste or scheduled tribe.
Thus, the lower court has misconstrued the evidence on record and being no evidence of intention or humiliatin as a member of scheduled caste or scheduled tribe, the order of cognizance under Section 3 (1) (r) of SC/ST Act is bad.
So far as the cognizance order under Sections 506, 353 and 427 I.P.C. are concerned, if we go through the first information report it is not about incident dated 23.05.2018, it is only about the allegation against the complainant A.K. Singh, who has alleged in the first information report that he is being given life threat by the accused person/appellant and in the whole case diary including the statements of present complainant – A.K. Singh not even a single word has come that the accused persons/appellant along with co-accused gave life threats to the complainant - A.K. Singh. It is also alleged in the first information report that the forged complaints on the basis of forged allegations are being made by the accused person but neither the complainant nor any witness have supported this allegation in their statements.
So far as the incident dated 23.05.2018 is concerned, this first information report has not been filed about the incident dated 23.05.2018 but only an incidental description of the incident dated 23.5.2018 has been mentioned therein with the allegation that previously also this contractor had committed reprehensible act of tearing the agreement and misbehaved with the officials.
A perusal of the first information report clearly indicates that the first information report was only regarding life threats given by the accused persons to the complainant and not about the incident dated 23.05.2018 regarding tearing of the agreement and giving life threats to the Dinesh Kumar and creating unwarranted incident therein. The incident of tearing the agreement and previous misbehaviour with staff is not the subject matter of the first information report on the basis of which the action against the appellant accused person was seeked. The Investigating Officer without going through the first information report properly investigated only regarding the incident dated 23.05.2018, which was not the subject matter of this complaint. Apart from this neither the date of any incident is disclosed in the first information report nor the reason of lodging the first information report after five months of the said incident is mentioned therein, which makes it clear that the first information report was lodged regarding life threats alleged to have been given by the accused persons/appellant to the complainant -A.K. Singh and regarding filing of forged complaints by the accused persons/appellant only. About these allegations neither any investigation has been done nor any report under Section 173 (2) of Cr.P.C. has been filed, so in my opinion the cognizance taken by the court concerned without going through the facts of the first information report and without perusing the evidence on record is bad and against the law. The lower court has misconstrued the facts and evidence, hence, the cognizance order is liable to be set aside.
The cognizance order dated 07.12.2019 passed by the Special Judge (SC/ST Act), Mirzapur in Special Sessions Trial No. 113 of 2019 is set aside. Quashing of charge sheet is not permissible in appeal, hence the prayer regarding quashing the charge sheet is rejected.
The appeal is thus, allowed partly regarding setting aside the cognizance order dated 07.12.2019 only.
Order Date :- 21.12.2021 gp