IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.324 of 2015 BETWEEN 1. GOVINDARAJU, S/O NARAYANA MURTHY, AGED ABOUT 45 YEARS, SENIOR OPERATION MANAGER, G-4 S SECURITY SERVICES, DOMLUR, BANGALORE – 560 071.
2. KUMAR @ SHARATH KUMAR K.R., S/O RAJEGOWDA, AGED ABOUT 30 YEARS, G-4 S SECURITY SERVICES, DOMLUR, R/AT No.42, VINAYAKA TOWNSHIP, DODDANEKKUNDI EXTENSION, MARATHAHALLI, BANGALORE – 560 037.
3. ARUN @ ARUNKUMAR, S/O V. ANANDAN, AGED ABOUT 35 YEARS, G-4 S SECURITY SERVICES, DOMLUR, R/AT No.13, 1ST MAIN, 1ST CROSS, KRISHNA REDDY LAYOUT, BANASWADI, BANGALORE – 560 043.
... PETITIONERS (BY SRI M.R.C. MANOHAR, ADVOCATE FOR M/S. NANAIAH., ASSOCIATES ADVs.) AND STATE OF KARNATAKA, INDIRANAGAR POLICE STATION, INDIRANAGAR, BANGALORE, REPRESENTED BY, THE STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX, BANGALORE – 560 001.
(BY SRI K.P. YOGANNA, HCGP) ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 8.1.2015 AND DISCHARGE THE PETITIONERS WHO ARE ACCUSED Nos.1 TO 3 RESPECTIVELY IN SPECIAL C.C.No.60/2012 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323, 506 READ WITH 34 OF IPC AND 3(1)(x) OF SC/ST (PREVENTION OF ATROCITIES) ACT, 1989, REGISTERED BY INDIRANAGAR POLICE STATION, BANGALORE, PENDING ON THE FILE OF II ADDITIONAL SESSION JUDGE (CCH-17), BANGALORE.
THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner Nos.1 to 3, who are accused before the Trial Court have filed this revision petition under Section 397 read with Section 401 of Cr.P.C being aggrieved by the order dated 08.01.2015 passed by the II Additional Sessions Judge, at Bengaluru (CCH-17), in Spl.CC No.60/2012, dismissing their application filed under Section 227 of Cr.P.C, praying to discharge them from the charges leveled against them.
2. Heard learned counsel for the petitioners/accused and learned High Court Government Pleader appearing for the respondent-State.
3. Learned counsel for the petitioners contended that the complainant one Vinod Kumar M, S/o. late Mahalingam filed a complaint before the Indira Nagar Police alleging that on 30.09.2011, one Vijayan Nair and the petitioners were abusing one Mohantha and assaulted him by taking the name of the caste though they belonged to SC/ST community. On the basis of the said complaint, the Police registered the case for the offences punishable under Section 323, 506 of IPC and Sections 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short ‘SC and ST (PoA) Act’) and after investigation, the Investigating Officer has dropped the name of Vijayan Nair, who has abused the complainant by taking the name of the caste and thereafter, the charge sheet came to be filed against these petitioners excluding Vijayan Nair and the petitioners therefore, filed an application under Section 227 of Cr.P.C seeking their discharge on various grounds.
4. Learned counsel for the petitioners contended that the Sessions Judge has not considered the material on record properly, especially the complaint, which was filed against one Vijayan Nair and the present petitioners also belong to the same SC/ST community, which was not properly investigated by the Investigating Officer and without considering the same, the Trial Court has held that there is sufficient material to frame charges against the petitioners and dismissed their application, which is erroneous. Hence, the petitioners prayed for setting aside of the same.
5. Per contra, learned High Court Government Pleader contended that the further statement of the witnesses clearly reveals that the petitioners also abused the complainant and assaulted Mohantha by taking the name of the caste. The injury certificate clearly states the injuries sustained by him and there is sufficient material placed on record against the petitioners. Even if there is any contradiction or omission, that cannot be considered at this stage and also contended that the petitioners have not taken such a ground in their application that they also belonged to SC/ST caste and, therefore, prayed for dismissal of the petition.
6. Perusal of the records goes to show that the complainant lodged the complaint stating that he is working as a security guard in the G4S Security Agency, where one Vijayan Nair is said to be the Branch Manager, petitioner No.1-Govindaraju is the Operation Manager, petitioner No.2-Kumar is said to be patrolling supervisor and PW.3-Arun was also working in the said agency. The complainant went to the office for enquiring about not paying proper salary to the security guards. At that time, he found petitioner Nos.1 to 3 assaulting Mohantha by hands and when the complainant questioned the same, the petitioners have threatened him with dire consequences. Again, the complainant told to accused persons that they also belong to SC/ST community and they will complain to their community leader. At that time, Vijayan Nair/ accused No.1 scolded him by taking the name of their caste and therefore, he went to their Welfare Association and informed the General Secretary Dinesh and after consult with him, he lodged a complaint with the Police at 6.30 p.m. Based upon the complaint, the Police have registered the case in Crime No.359/2011 for the offence under Sections 323 and 506 IPC and Section 3(1)(x) of the SC and ST (PoA) Act. However, the Investigating Officer, during investigation, by recording further statement of the complainant and other witnesses and while filing the charge sheet, he dropped the name of Vijayan Nair from the charges for all the offences on the ground that the complainant is said to have stated without knowing the name of the person, believing that it is Vijayan Nair and Vijayan Nair was not the person who scolded him, but some other person. Based upon the said statement, even though Vijayan Nair was shown as accused No.1 in the complaint, the name of Vijayan Nair/accused No.1 was dropped and only these petitioners were shown as accused.
7. Learned counsel for the petitioners strenuously contended that almost all the allegations are made against Vijayan Nair in respect of Section 3(1)(x) of the SC and ST (PoA) Act, but his name was dropped from the charge sheet on the ground that the complainant was scolded by some other person whose name was not mentioned, but not accused No.1 and hence, these petitioners also cannot be charged for the offences under SC and ST (PoA) Act, as these petitioners have not scolded the complainant. Apart from that, the petitioners also belonged to the same caste. Therefore, the offence under Section 3(1)(x) of the SC and ST (PoA) Act would not be attracted. Admittedly, the further statement produced before the Court goes to show that the said Vijayan Nair scolded the complainant by taking the name of the caste and abused him in filthy language. The main charges under the provisions of the SC and ST (PoA) Act were attributed only against Vijayan Nair, whose name was already dropped. If some other person scolded, the offence would be attracted against some other person, but none of such persons were named in place of Vijayan Nair. These accused have not at all abused the complainant or the injured taking the name of the caste. It is also brought to the notice of this Court that the offence has occurred in the office, which was not in the purview of the public. However, learned counsel for the petitioners has not at all taken the contention that petitioners also belonged to SC/ST community in the application or pleaded before the Trial Court. If the said ground was urged before the Trial Court, the Trial Judge would have considered the same while passing the order under challenge. Once the main allegation that the charges against one person namely Vijayan Nair in respect of the SC and ST (PoA) Act was already dropped and his name was deleted from charge sheet, the remaining offences under Sections 323 and 506 read with Section 34 of IPC would be attracted against the petitioners. Therefore, the Trial Court has committed an error in holding that these petitioners have also committed the offence under Section 3(1)(x) of the SC and ST (PoA) Act and the order under revision does not reveal any proper reason assigned by the Trial Court while dismissing the application. The order passed by the Trial Court does not show any specific order as to which offence is attracted against which accused. No doubt, it is well settled that while framing the charges, the Court cannot go into the merits either for conviction or acquittal, but required to find out as to whether there is any prima facie material to frame charges against the accused persons. Therefore, non-assigning of proper reasons in the order passed by the Trial Court is erroneous and the same is liable to be set aside.
8. Learned High Court Government Pleader submits that matter requires to be remanded back to the Trial Court for fresh consideration by taking into consideration the grounds urged by the petitioners that they also belong to SC/ST community and the offence against Vijayan Nair definitely would not attract Section 3(1)(x) of the SC and ST (PoA) Act.
9. Learned counsel for the petitioner contended that even if this matter is remanded back to the Trial Court, the Trial Court is likely to dismiss the application without proper application of mind and there is every chance of this petitioner coming back to this Court, is not ruled out. Therefore, it is urged that this Court is having power to quash the charges leveled against accused Nos.1 to 3, petitioners herein, as absolutely there is no offence made out against them for framing of charges under the provisions of SC/ST Act otherwise the same may lead to multiplicity of litigations.
10. On hearing the learned counsel and even on perusal of the order passed by the Court below, it shows that the learned Trial Judge without application of mind even though the Vijayan Nair/ accused No.1 was deleted from the charge sheet and the main allegation in respect of the offence punishable under SC and ST (PoA) Act was dropped against accused No.1, the remaining offence that would be attracted against the petitioners is only under IPC. The same was not at all considered by the Court below. Therefore, the learned counsel has rightly contended that even if this matter is remanded back, it will not serve any purpose. Apart from that, when petitioner Nos.1 to 3 are the members of SC/ST community, the provisions of Section 3(1) of SC and ST (PoA) Act would not attract. The provisions of Section 3(1) of the SC/ST Act, “Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe” shows that the person who abuses a person belonging to SC/ST community must have the knowledge that the victim belongs to SC/ST community and he must not be a member of the same community.
Then only the offence under Section 3(1) of the SC and ST (PoA) Act would attract.
11. Learned counsel for the petitioner relied upon the judgment of this Court in the case of Chandra Poojari vs. State of Karnataka reported in 1998 Cri.L.J. 53 wherein, it has been held that Section 3(x)-Calling a person by his caste-Complaint regarding–Inordinate delay in filling–No disclosure in complaint that occurrence had taken in public view–Petitioner not aware of fact that complainant belongs to Scheduled Caste–Merely by calling someone by his caste does not attract provisions of Act and this Court has quashed the order of taking cognizance of the offence under the provisions of the SC and ST (PoA) Act. Even in this case, the incident has taken place within the office and two of the petitioners were belonging to the same caste and the main accused Vijayan Nair was already dropped. Therefore, the charges under the Act cannot be framed against this petitioner. These aspects were not considered either by the Trial Court or by the Investigating Officer, while dropping the charges against the main accused/Vijayan Nair. Therefore, absolutely there is no evidence against this petitioner in respect of offence under Section 3(1)(x) of the SC and ST (PoA) Act to frame the charges against them. However, there are materials to frame charges against the petitioners under Sections 323, 506 read with Section 34 of IPC and accordingly, I pass the following;
The Criminal Revision Petition is allowed in-part. The order under revision is set aside. Charges against petitioners/accused for the offence under Section 3(1)(x) of the SC and ST (PoA) Act are hereby set aside. The matter is remanded back to the Trial Court with a direction to send back the case file to the concerned jurisdictional Magistrate to try the offences under Sections 323 and 506 read with Section 34 of IPC. However, if the magistrate, while recording the evidence, finds any material against Vijayan Nair, the Trial Court can proceed against him under Section 319 of Cr.P.C. in accordance with law.
SD/- JUDGE mv