Court No. - 81
Case :- APPLICATION U/S 482 No. - 13768 of 2021 Applicant :- Triloki Kumbhar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Maurya Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
Heard learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.
The instant application has been filed by the applicants with a prayer to quash the charge sheet dated 16.10.2017 and cognizance order dated 22.12.2020 in case crime no.853 of 2017 under sections 323, 324 IPC and 3(1)(10) of SC/ST Act, P.S. Reoti District Ballia.
Learned counsel for the applicants submits that the applicants have been falsely implicated in the present case with ulterior motive and with malafide intention. As per the allegations levelled in the FIR, there was some dispute between the applicants and the opposite party no.2 for grazing the goats by their children. The opposite party no.2 took this matter very serious and falsely implicated the applicants with a false allegation that the applicants along with their other brothers entered into the house of the opposite party no.2 and started beating her. The entire allegation is false and the opposite party no.2 has made a false medical report in which injuries were shown simple in nature. The applicants are very poor persons and are neighbour of opposite party no.2. He next submitted that even if the prosecution story is believed to be true, the incident as alleged in the FIR took place in the house of the applicants. Learned counsel for the applicants further submits that from the perusal of the FIR and the charge sheet, the basic ingredients of the offence is not present, the informant must satisfy with the condition that there must be intentional insult, secondly the insult must be done in a public place within public view which is not in the present case, therefore, essential ingredients are absent and not found from the allegations levelled against the applicants in the present FIR by the opposite party no.2 and the charge sheet was filed in a mechanical manner without considering the evidence on record and the learned Magistrate has also taken cognizance in a routine manner which is abuse of process of law. The whole prosecution story is false and concocted and is only with the intention to get the applicants stuck in false and fabricated case as there was old village enmity between the parties. The Investigating Officer without considering the legal provision of the S.C./S.T. Act, he in a mechanical manner submitted charge sheet under sections 323, 324 IPC and 3(1)(10) of SC/ST Act. The incident had neither taken place in a public place nor in a place where public were gathered or in a public view.
Learned counsel for the applicants has placed reliance on paragraph 13, 14, 16 and 18 of the judgment of Hon'ble Apex court passed in Criminal Appeal No. 707 of 2020 (arising out of SLP (Criminal) No. 3585 of 2020) (Hitesh Verma Vs. The State of Uttarakhand & Anr.;) which are being reproduced hereinbelow :
"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 a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a 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 a 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 a 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 No.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 No.2 is member of Scheduled Caste.
14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors. (2008) 8 SCC 435. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view.The Court held as under ".....................28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.
18. Therefore, 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 reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."
Learned counsel for the applicants has also placed reliance on the judgment passed by this Court in the case of K.P. Thakur & Anr.; Vs. State of U.P. & Anr.; passed in Application u/S 482 No. 40418 of 2012 decided on 18.02.2020 and further reliance has been placed on the judgment of High Court of Punjab & Haryana in the case of Pradeep Kumar; Sandeep Alias Deepa Vs. State of Haryana & Anr., reported in 2020 LawSuit(P&H)250 decided on 14.05.2020.
Per contra, learned A.G.A. submitted that charge sheet was rightly filed after following due process of law and there is no illegality, hence the case is made out against the applicants.
Considering the arguments as advanced by the learned counsel for the parties and after perusal of record, the basic ingredients of the offence is not present, the informant must satisfy with the condition that there must be intentional insult, secondly the insult must be done in a public place within public view which is not in the present case, therefore, essential ingredients are absent and not found from the allegations levelled against the applicants in the present FIR by the opposite party no.2 and the charge sheet was filed in a mechanical manner without considering the evidence on record and the learned Magistrate has also taken cognizance in a routine manner which is abuse of process of law. The injury reports are simple in nature and the view taken by the Hon'ble Apex Court in the case of Hitesh Verma (supra) as well as in the case of K.P. Thakur (supra) of Punjab & Haryana High Court and also in the case of Pradeep Kumar; Sandeep Alias Deepa (supra) of this Court, the applicants have made out a case for interim relief.
Matter requires consideration on law and facts both.
Notice on behalf of opposite party No.1 has been accepted by learned AGA.
Issue notice to the opposite party no.2.
Opposite party no.2 may file counter affidavit within a period of three weeks. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit, if any, may be filed within a period of two weeks thereafter.
Put up this case on 22nd October 2021 in the additional cause list before the appropriate Bench.
Till the next date of listing, no coercive action shall be taken against the applicants in the aforementioned case.
Order Date :- 12.8.2021 SP