Court No. - 87
Reserved on 10.11.2021 Delivered on 17.12.2021 Case :- CRIMINAL APPEAL No. - 3972 of 2021 Appellant :- Devendra @ Devendra Singh And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Bhaskar Bhadra Counsel for Respondent :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur), J.
This is an appeal under Section 14A(1) Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed by the appellants against the summoning order dated 28.10.2020 passed by the Special Judge (SC & ST Act), Bareilly in Complaint Case No. 62 of 2019 (Suresh Kumar Vs. Devendra and another) under Sections 323, 504, 506 I.P.C. read with Section 3 (1) (Da) and (Dha) of SC/ST Act, 1989, Police Station Subhash Nagar, District Bareilly.
By the impugned order the lower court summoned the appellants- accused persons to face the trial under Sections 323, 504, 506 I.P.C. read with Section 3 (1) (Da) and (Dha) of SC/ST Act, 1989.
The facts germane to the instant appeal are that on 01.05.2019, the opposite party no. 2, Suresh Kumar moved Misc. Application No. 68 of 2019 under Section 156 (3) Cr.P.C. in the court of Special Judge (SC/ST Act), Bareilly that by caste he is 'dhobi'. Now he is residing in Tirupati Dham, Subhash Nagar, Bareilly but originally he hales from the village Unchagaon, police station Subhash Nagar, District Bareilly. The opposite parties - Devendra and Chhatrapal have encroached upon his house in Unchagaon, Subhash Nagar by throwing out his house hold goods. On the information when he along with wife reached Unchagaon he found that his house hold goods bed, matress, utensils, grocery, almirah, clothe and jwellery (one gold chain and two pairs of silver payal) were not there and some stolen goods were found in the house of Chhatrapal. When he made complaint regarding the same, Chhatrapal and Devendra hurled caste based abuses and contended that now they are in possession of the house. There is nothing, which belongs to the applicant. When wife of the applicant protested then both the accused persons (appellants herein) hurled abuses and demanded Rs. 1,00,000/- for surrendering the possession of the house. He was pushed out from his house and was given threat of life by the accused persons. They assaulted him and abused him. As they are strong and influential persons, they use to grab the lands of the weaker persons. Nobody raises voice against them. As his report was not registered in the police station he sent information to the Superintendent of Police concerned by registered post but no action has been taken yet, hence prayer to get register the first information report and conduct investigation was made.
This application was registered as complaint case by the lower court and after recording the statement of the complainant under Section 200 Cr.P.C. and the statements of the witnesses Gita Devi wife of the complainant and Meena w/o Om Prakash under Section 202 Cr.P.C. the lower court passed the impugned order dated 28.10.2020 summoning the accused personsappellants under above mentioned sections.
The present appeal has been filed against this summoning order dated 28.10.2020 on the premise that the summoning order is illegal, arbitrary, without application of judicial mind and contrary to the evidence on record. The accused appellants have been summoned in a general manner which is not sustainable in the eye of law. The allegations mentioned in the complaint against the appellants are absolutely incorrect, false and fabricated. The opposite party no. 2 the complainant is not the owner of the house in question. The appellant no. 2 has purchased the said house from its original owner Ram Autar by paying him consideration amount of Rs. 17,000/- and in this regard Ram Autar gave him a sale receipt on 14.06.2018, thus, the story of complaint is false. On account of village party bandi this complaint has been filed against them on false and frivolous allegations. No date has been mentioned as to when the application was given at the police station concerned and after one month of alleged incident, the application to Senior Superintendent of Police is said to be given. The matter was not reported to 'dial 112 number', just to bargain with the appellants and pressurize them this complaint has been filed. The witnesses, Lotan, Kallu, Mewa Ram, Om Prakash and Yogesh have not been examined in the Court. The opposite party no. 2 has not filed any documentary evidence with regard to ownership or the possession of the house. He was not in possession of the same. The story set up by him is wrong. No injury report has been filed to show that any marpeet was done with him. They have neither committed marpeet nor given any threat or used caste related words against the applicant. In the morning at the alleged time of incident, they were busy in distributing milk to their consumers, therefore, there was no occasion for them to be present on the spot. It is a case of civil nature. The criminal proceedings are being initiated by the opposite party no. 2 just to pressurize them. The opposite party no. 2 is misusing the provisions of SC/ST Act, 1989. As per version of opposite party no. 2 this incident took place inside the house, so the provisions of SC/ST Act, 1989 do not attract. The complainant is a property dealer. Just to grab the house of the appellants, this false complaint has been filed, so the prayer is made to quash the impugned order and allow the appeal.
The notice was sent to the opposite party no. 2 but he did not turn up inspite of sufficient service.
Heard learned counsel for the appellants and learned A.G.A. and perused the record.
Learned counsel for the appellants reiterated the grounds mentioned in the appeal and argued that no incident took place and just to grab the property the opposite party no. 2 has initiated this criminal proceeding. It is further argued that the incident is not covered under SC/ST Act, 1989.
Per contra, learned A.G.A. argued that the caste based abuses are alleged to have been hurled by the appellants. There is sufficient evidence on the record. The incident took place outside the house and on the basis of receipt the appellants cannot claim to be the owner of the house, hence prayer for dismissing the appeal is made.
As per complaint on the record, the appellants are said to have illegally encroached upon the house of opposite party no. 2. When opposite party no. 2 went to the place and protested the encroachment he was hurled caste based abuses, beaten up and pushed out from his own house and in order to give back possession Rs. 1,00,000/- are alleged to have been demanded by the appellants.
Admittedly, the opposite party no. 2 has not filed any document of ownership of the house in the lower court and the documents sale receipt and purchase deed cannot itself create the ownership of the alleged purchase as the immovable can only be purchased through sale deed, which the appellants admittedly do not possess, hence the dispute of ownership and possession is involved here, which is to be decided by the Civil Court. The opposite party no. 2 has filed the complaint with the allegation that the opposite party no. 2 and his wife were beaten, pushed out of their own house, given wild and caste based abuses and threat to life and the demand of Rs. 1,00,000/- was also made. On the basis of these allegations supported by the statement of the complainant and his two witnesses the appellants have been summoned. It is not necessary for the offence under Section 323 I.P.C. that the medical report be compulsorily filed or the person, who is said to be beaten necessarily get himself medically examined, so the argument that no medical report has been filed, has no force.
So far as the argument relating to offence under Section 3 (1) (da) (dha) of SC/ST Act, 1989 is concerned, the relevant provisions are reproduced as under:-
(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;
(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view.
The above provisions clearly show that the offence under Section 3 (1) (da) (dha) of SC/ST Act, 1989 can only be said to be constituted when the incident takes place within the public view. In the complaint itself it has come that the complainant was pushed out from his own house by hurling caste based abuses and marpeet was also done with him. It clearly shows that the incident admittedly took place inside the house. Hence the place of incident cannot be said to be within public view.
Therefore, in my opinion the summoning of the appellants under Section 3 (1) (da) (dha) of SC/ST Act, 1989 is against the provisions of law. Hence the summoning order in this regard is not sustainable and liable to be set aside.
So far as the summoning under Sections 323, 504 and 506 I.P.C. is concerned, in this regard the statement of opposite party no. 2 the complainant under Section 200 Cr.P.C. and the witness Geeta Devi, though, she is wife of the complainant and statement of Meena both under Section 202 Cr.P.C. prima facie corroborating the version of the complainant are on record. So, the summoning of the appellants under Sections 323, 504 and 506 I.P.C. at this stage can be said to be appropriate.
In view of the above, the appeal of the appellants is partly allowed. The appeal regarding summoning of the appellants under Section 3 (1) (da) (dha) of SC/ST Act, 1989 is hereby allowed.
The summoning order of the appellants under Section 3 (1) (da) (dha) of SC/ST Act is hereby set aside.
The summoning order with regard to Sections 323, 504, 506 I.P.C. is upheld. Thus, the appeal with regard to summoning of the appellants under Sections 323/504/506 I.P.C. is hereby dismissed.
Order Date :- 17.12.2021 gp