LOHIT KHOLIYA v. STATE OF UTTARAKHAND AND ANOTHER

The applicant, by means of present application under Section 482 Cr.P.C., seek to quash the charge-sheet dated 28.04.2017, summoning order dated 15.06.2017 as well as the entire proceedings of SST No. 20 of 2017, for the offences punishable under Sections 147, 323, 504, 506 IPC and Section 4 (1) VI & XIX of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending before the Special Sessions Judge, Champawat.

2. Learned counsel for the applicant confined his prayer only to the extent that no offence under Section 4 (1) VI & XIX of the SC/ST Act is made out against the applicants, even on bare reading of the contents of the first information report.

3. Learned counsel for the applicant submitted that even if the contents of the FIR be conceded to be true, no ingredients of Section 4 (1) VI & XIX of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are prima facie made out against the applicant, in the sense that informant nowhere said that the accused himself was not a member of SC/ST community and he used those words intentionally in order to humiliate him (victim) in a place within the public view knowing it that he (victim) belonged to a community of Scheduled Castes or Scheduled Tribes, as was held by the Honble Supreme Court in Gorige Pentaiah vs. State of Andhra Pradesh and others, (2008) 12 SCC 531.

4. On perusal of documents on record, foundation of offences under Sections 147, 323, 504, 506 IPC is laid against the applicant. No prima facie case under Section 4 (1) VI & XIX of SC/ST Act is made out against him (applicant), in view of Gorige Pentaiahs case (supra), wherein, in paragraph no. 6, it was observed by Honble Apex Court as under: In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

5. Prima facie, offences under Sections 147, 323,

504 & 506 IPC are made out against the applicant, but the offence under Section 4 (1) VI & XIX of the SC/ST Act is not made out in view of Gorige Pentaiahs ruling.

6. Application under Section 482 Cr.P.C. is, therefore, partly allowed to the extent of exclusion of Section

4 (1) VI & XIX of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 only. In other words, the applicant shall face the trial for the offences for which charge-sheet was submitted against him, but, not under Section 4 (1) VI & XIX of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Application under Section 482 Cr.P.C. is therefore, dismissed in so far as summoning of the applicant for the offences punishable under the Indian Penal Code is concerned.

7. At this juncture, learned counsel for the applicant submitted that some time be given to the applicant to surrender before the court below and in the meantime no coercive steps be taken against him.

8. Considering the facts of the case, it is provided that the petitioner/applicant shall surrender before the Court concerned with regard to the offences punishable under IPC, within four weeks, whereafter, he will be dealt with by the learned court below according to Law. No coercive steps shall be taken against the applicant for a period of four weeks from today.

9. It is also provided that if the petitioner surrenders before the Court concerned within the stipulated period and seeks bail, his bail application shall be decided as expeditiously as possible preferably on the same day.

10. This Court does not feel it necessary to issue notice to the private respondent. Still, liberty is granted to him to move for recall of this Order, if he feels aggrieved with the same. (U.C.Dhyani,J.) 29.06.2017 Kaushal