!ffi Rffi? a^ aa.f'hy Q F!VERUgcES}3 'S^^S^^^S^ E ST®6 lll['lv BEFORE THE HON'BLE HIGH^QURT OF CHHATTISGARH AT BILASPUR Cr.M.P.No. ^^ Of 2008. PETITIONERS ^^ ^ r-^^ ^.ONliW/5; '.<•;- '- ^f^ ^..•-r^i.'i 1 ^.--^ ^s^ ^v\-- ^..•••''. '.^'', i.v -"."<^ ^.-Tt' Thakur Ashok Singh Parihar, aged 43 years, son ofLate Shri Vishnu Singh Praihar, Resident ofNew Colony, Kushalpur, Raipur (C.G.), Thana Purani Basti, Raipur (ChJhattisgarh), Thakur Indra Kumar Singh, son of Late Thakur Baldev Singh, aged 40 years, resident of Jila Sahkari Kendriya Bank Maryadit, Raipur (C.G.), Thana Golebazar, Raipur (Chhattisgarh), Thakur Vinay Singh, aged about 28 years, son of Late Narendra Singh Bais, resident of Behind Gopal Hardware, Ward No. 2, Kota, Raipur (C.G.), Thana Saraswati Nagar, Raipur (Chhattisgarh), ^ ^,^•13'?^ w^ss\ ^] 7. 8. Thakur Balwant Singh, son of Late Thakur Fandu Singh, aged 62 years, resident of M 22, Rajeev Nagar, Raipur (C.G.), Thana Civil Lines, Raipur (Chhattisgarh), Thakur Daulat Singh, son of Thakur Manmohan Singh, aged 52 years, resident of H.No. 31/368, Amapara, Raipur (C.G.), Thana Azad Chowk, Raipur (Chhattisgarh), Thakur Ashwani Kumar Singh, son of Thakur Nem Singh, aged 40 years, resident of H.No. 17, Parmanand Nagar, Mohaba Bazar, Raipur (C.G.), Thana Amanaka, Raipur (Chhattisgarh), Dr. Smt. Priti Singh, wife of Thakur Prabhakar Singh, aged 37 years, resident of Devi Saraswati Hospital, Mahadeo Ghat Road, Ashwani Nagar, Raipur (C.G.), Thana Purani Basti, Raipur (Chhattisgarh), Thakur Bharat Singh, son of Thakur Balmukund Singh, aged 54 years, resident of Gudhiyari, Raipur (C.G.), Thana Gudhiyari, Raipur (CUhattisgarh), Thakur Gajadhar Singh, son of Thakur Mannu Singh, aged 55 years, resident of Kota, Raipur (C.G.), fi; \~~ '/v- '\ z^ ^v".'y Thana Saraswati Nagar, Raipur (Chhattisgarh), 10. Thakur Indal Singh, son of Thakur Amol Singh, aged 37 years, resident of Sanjay Nagar, Raipur (C.G.), Thana Tikrapara, Raipur (Chhattisgarh), 11. Thakur Chandrabhushan Singh Parmar, son of Thakur Jagmohan Singh, aged 53 years, resident of Bramhanpara, Raipur (C.G.), Thana Azad Chowk, Raipur (Chhattisgarh), 12. Thakur Ramkhilawan Singh, son of Thakur Khedu Singh, aged 72 years, resident of Village Seoni, Tahsil Abhanpur, Thana Abhanpur, District Raipur (Chhattisgarh), 13. Thakur Raghvendra Singh Vinod, son of Late Thakur Ramesh Singh, aged 37 years, resident of Village Sarora, Tahsil and District Raipur, Thana Urla, District Raipur (Chhattisgarh), 14. Thakur Jitendra Singh, son ofThakur Ratan Smgh, aged 29 years, resident of Kota, Raipur (C.G.), Thana Saraswati Nagar, Raipur (Chhattisgarh), 15. Thakur Shersingh Rajput, son of Thakur Pratap Singh, aged 35 years, resident of Mohaba Bazar, Raipur w K.V (C.G.), Thana Amanaka, Raipur (Chhattisgarh), 16. Smt. Devkumari Thakur, wife of Thakur Chhatar Singh, aged 58 years, resident of Sunder Nagar, Raipur (C.G.), Thana Purani Basti, Raipur (Chhattisgarh), 17. Smt. Kanti Bais, wife of Thakur Raghuraj Singh, aged 53 years, resident of Mahamai Para, Raipur (C.G.), Thana Purani Basti, Raipur (Chhattisgarh), 18. Thakur Lav Singh, son of Late Thakur Shatrughan Smgh, aged 46 years, resident of Village Bhatagaon, Tahsil Raipur, Thana Tikrapara, Raipur (Chhattisgarh), 19. Thakur Brijlal Singh, son of Thakur Jagmohan Singh, aged 54 years, resident of Village Birgaon, Tahsil and District Raipur, Thana Khamtarai, Raipur (Chhattisgarh), 20. Thakur Dr. Jaisingh Bhagel, son of Thakur Jagmohan Singh, aged 47 years, Adhyaksha, Village Rahatadah, ' Post Dhamdha, District Durg (C.G.), Thana Dhamdha, Durg (Chhattisgarh), 21. Thakur Gopal Singh Dikshit, son of Thakur Amol Singh, aged 63 years, Varistha Upadhyaksha, resident of ^l >& i-'ws'.<^ """" <^. 1\ /, Thakurpara, Khairagarh, District Rajnandgaon (Chhattisgarh), 22. Thakur Ashok Singh, son of Thakur Manbodh Singh, aged 58 years, Kanistha Upadhyaksha, resident of Dammani Colony, Gobranawapara, Raipur (Chhattisgarh), 23. Thakur Heera Singh, son of Thakur Jeevrakhan Singh, aged 54 years, Koshadhyaksha, Village Marra, Tahsil Patan, District Durg (Chhattisgarh), 24. Thakur Hori Singh Dond, son of Thakur Tulsi Ram Singh, aged 44 years, Mahasachiv, Ayushman Bhawan, Near Rest House, Pandariya, Kabirdham (Chhattisgarh), 25. Thakur Onkar Singh, son of Thakur Lakhan Singh, aged 47 years, Sahsachiv, Near Forest Depot, Saroda Marg, Kawardha, District Kabirdham (Chhattisgarh), 26. Thakur Chandrapratap Singh Bais, son ofThakur Balram Singh, aged 36 years, Upsachiv, Thana Khamariya, Tahsil Saja, District Durg (Chhattisgarh), 27. Thakur Suresh Singh, son of Late Thakur Shersingh, aged 46 years, Prachar Sachiv, resident of Shiv fej. K: x Chowk, Bhim Nagar Road, Ashwani Nagar, Raipur (Chhattisgarh), 28. Thakur Udham Singh, son of Late Thakur Tikam Singh, aged 39 years, Sangathan Sachiv, Tikamji flowers, Fool Chowk, Raipur, Disti-ict Raipur (Chhattisgarh), 29. Thakur Ramesh Singh, son of Thakur Battar Singh, aged 48 years, Adhyaksha, Upsamiti, Raipur (C.G.), Santoshi Chowk, Kushalpur, Raipur (Chhattisgarh), 30. Thakur Heera Singh Pawar, son of Thakur Bisahu Singh, aged 46 years, Sachiv, Doodhnadi, Van Colony, Kanker, District Kanker (Chhattisgarh), 31. Narendra Singh Thakur, son ofLate Thakur Jawahar Singh, aged 56 years, Kendriya Nimayak Sadasya, Pachripara, Durg, District Durg (Chhattisgarh), 32. Thakur Kamlesh Singh, son of Thakur Teekam Singh, aged 43 years, Sachiv, Upsamiti, Raipur, Ashok Nagar, Gudhiyari, Raipur, Tahsil and District Raipur (Chhattisgarh). ^ RESPONDENTS VERSUS 1. Santosh Singh Thakur, aged 38 years, Son ofLate Moolsingh Thakur, resident of Shanti Vihar Colony, Danganiya, Raipur (C.G.), Thana Dindayal Upadhaya Nagar, Raipur (Chhattisgarh), Thakur Pawan Singh, son of Thakur Churaman Singh, aged 47 years, resident of Village Jarvay, Tahsil and Distirict Raipur, Thana Tatibandh, Raipur (Chhattisgarh), Nand Kumar Singh Thakur, son of Thakur Shersingh, aged 54 years, Adhyaksha, Bharchatti Upsamiti Beria, District Durg (Chhattisgarh). APPLICATION UNDER SECTION 482 OF CODE OF ^t_^^ tl^^SLiJ,i S> CMMINAL PROCEDURE. B' TE?-^, •s ,: ^ z^ MiGH COURT OF CHHATTISGARH : BILASPUR Single pencli: Hon'bte Shri Ivianindra mohan Shrivastava. J, PETiTiONERS RESPONDENTS Cr.M.P. No.808/0i haKur AshoK Sincih Parihar and 31 others versus Santosh Singh ThaKur & two others PETtTION UNDER SECTION 482 OF Ti-it CQDE Q£CRjiViiNAL P'KOeEuURt Present: - Shri H.B. Agrawai, Senior Counsei aiong with Ms. Meera Jasswal, counsel forthe patitso".ers. Shri Ankit Singhai, counsei ror respondent No.1. None for oSher respondents. ORAL ORDER (Passed on 27th of July, 2011) This petitjon has been fiied by tne petitioners seeking 10 assasl correctness and vaiidity or order dated 7/8/06 passed in Criminal Case No.484/08, whereby the Magistrate has taken cognizance or orfence unaer Section 500 iPC and Section 7 (2) of the Protection of Civii Rights Act, 1955 (r'or short • the Act of 1955') aaainst the petitioners. 2. Learned senior counsei for the petitioners argued that the compiaint and the preiiminary statements recorded by the Magistrate, even if taken on its face vaiue and as it is, case for commission of offence under Section 500 IPC or under Section 7 (2) of the Act of 1955 are not at aii made out. Learned counsei for the petitioners submits that the matter reiates to dispute between the parties aiieaing ex-communication of the complainant and nothing more. ^ wsy' 3. Learned counsel for the petitioners vehemently contended that the petitjoners have been alleged to be present in an open meeting wherein, it has been said that the complainant was scoided for havina contacted marriage outside the caste. He further submits that the entire aiiegations in the compiaini show that in the meetina, certain imputations were made against the compialnant and his wife but the contents of the compjaint and the preiiminary statements do not show any specific aiiegations aaainst each and every petitioner as to in what manner they had spoken words making imputations concerning the compiainant wifh intention to harm or knowing or having reason to believe that such imputation wilf harm his reputation. Learned senior counsel rurther submits that the aileaations are quite vague, generai in nature and therefore, no case for registration of offence under Section 500 IPC is made out aaainst thepetitioners. :i:!tls-i,-,, 4. In so rar as registratlon of offence under Seciion 7 (2) of the Act of 1955 is concerned, iearned counsei for the Detitioners submits that the provisions contained in Section 7 (2) of the Act of 1955 make ouf a case for commission of offence onfy when a person takes part in the ex- communicatjon of a person on the ground that such person has refused to practice untouchability. He submits that from the entire reading of the compiaint and the preiiminary statements which have been recorded by the Magistrate, it is nov/here atleged that the complainant was subjected to ex-communication from the community on the ground that he refused to practice untouchabiiity. in hls submission, according to the compiainant himseif, the proceedings of ex-communication had taken place because the complainant contacted marriaae outside his communrty. He submiis that on the face of the alieaations, no case for commjssion of ofrence under Section 7 (2) of the Act of 1995 is made out. Learned counsel for the petitioner piaced reiiance upon the decision of the Supreme Court in the case Ajay IViitra v. State of M.P. and others, 2003 (3) SCC 11. ~IB%r «i»a.:"al 5. On the other hand, iearned counsei for respondent no.1/ complainant submitted that in the compiaint, which has been made by the complainant, it has been very specificaiiy stated that in the open meeting, the petitioners had scoided the compiainant and he was subjected to unwarranted interroaaiories and further his wife was addressed as 'kept' of the complainant. it has also been stated in the comptaint as also in tne statement that the accused persons are spreadlna it to the members of ihe famlly, society and trading company that the complainant has been ex- communicated from the community and therefore, no one should keep any kind of reiations with him and that he has a 'kept' with him. Learned counsel for the respondent No.1 further submitted that as far as commission of offence under Section 7 (2) of the Act of 1955 is concerned, it is sufricient to allege that a person has been denied right or privilege to which he wouid have entitied as member of ihe communrty and it is not necessary to independentiy aliege that it was done on the ground that he refused to practice untouchabiiitv. Learned counsel for the respondent No.1 placed reiiance upon the decjsion of the Supreme Court ^) in the case of Manoj Narain Aqrawal v. Shashi Aarawai and others, 2009 (6) SCC 385 and Hadibandhu Behera v. Banamaii Sahu, AIR 1961 Orissa 33. 6. A reading of the provisions contained in Section 499 iPC which defines 'defamation' reveais that whoever, bv words elther spoken or intended to be read, or bv sians or bv visibie representations, makes or pubtishes any imputation -concerning any person jntending to harm, or knowino or havlnci reason to beiieve that such imputation wili harm, the reputation of such person, except in the cases excepted, is said to defame that psrson. Therefore, where words are spoken making any imputation concerning any person with intention to harm or knowing or having reason to believe that such imputation wiii harm the reputation of such per^in, It wouid be a case of defamation. 'he complaint which has been fiied by respondent No.1 in substance alieges in para 8 to 14 that In the open meeting, the complainant was cailed and in that meetina, the petitioners herein were present. About 250-300 persons were present and in that meeting various imputations were made against the complainant and his wife was branded as 'kept' and it was also said that he shouid get ihe btood ot' his chifdren tested. it has also been alleaed in the complaint that in that meeung, some persons known to the compiainant were aiso present, who, after these aliegations were ieveled, have withdrawn from the company of the compiainant. It has also been aileged in the complaint ihat ihe petltioners have directed / instructed all the members of the ramity, not to keep anv kind of relations with the complainant and are defaming on the ground that he has contacted inter-caste marriage. It has aiso been aiieged that some of the petitioners have aiso asked one Sujjt Kumar - an empioyee to leave the work as the compiainant has contacied inter-caste marriage. in the preiiminary statements of Santosn Singh Tnakur - the compiainant and Narendra Singh Thakur, the alleganons made In the compiaint have been repeated. The compiainant in his statement has specifically named ali the petitioners and has narrated the incident of ex- communication in the open meetirig and that his wire was branded as •kept' and further that the petitioners in the meeting decided to inform the members of the familv, societv and trading company that the complainant has been expelied from the community and his wife has been branded as 'kept'. Against two petitioners i.e. Omkar Singh and Ramesh Singh, it has been alieged thai they have informed Sujit Kumar that the compiainant has been exDelied and he shouid not work with 7. it is weii settled that the scope of interference at the stage of initiation of criminai proceedings is limited. This Court, at this stage, wouid not evaluate correctness of the complaint and the statements on the basis or which, the offences have been registered by the Magistrate and cognizance has been taken. if it is found that the entire compiaint and the statement recorded taken as ii is, do not make out any ingredients or the 6 -0 offences alieged, the Court may interfere in exercise of powers under Section 482 CrPC. 8. in the case Manoj Narain Aflrawal (Supra), it was heid - "33. it is not necessary for us to deai with the large volume of cases as to the jurisdiction of the Hiah Court to quash the criminal proceedincis in exercise of its lurisdiction under Section 482 of the Code of Criminai Procedure, as the principlss in respect thereof are-.wetl known. The jurisdiction of the High Court is iimited. It can interfere with an order of summoning an accused bv the iearned Maaistrate inter alia in the event if a findincj is arrived at that the accused were belng prosecuted mala fide and/or even if the aiieaations contained in the FIR are given face vaiue and taken to be correct in their entirety, no case has been made out for takina coanlzance of the offence." 9. Therefore, appiying the principies in reiation to ihe powers of the Court in the matter of interference under Section 482 CrPC, i am unable to accept the submission of iearned counsel for the petitioners that no case for proceedings is made out. At the initial stage; it is not required to be seen as to whether a case of conviction is made out or not. Aii that js required to be seen is whether sufficient ground for proceedings is made or not. Therefore, applying theaforesaid principie, 1 do not find that the Court below has exceeded its jurisdiction in registering offences against the petitioners. Ultimateiy, whether the aliegations are made oui or not is a matter for consideration in the trial wherein the petitioners wiil have ampte opportunity to defend themseives and impeach credibiiity of the prosecution witnesses. At this staae, the veracity or truthfulness of version of the prosecution witnesses cannot be examined. However, the other submission of iearned counsei for the petitioners that no case of commission of ofrence under Section 7 (2) of the Act of 1955 is made out has considerabie force. A bare readina of the provisions or Sectlon 7 of the Act of 1 955 wouid show that whoever - i). denies to any person belonging to his community or any section thereof any right or privilege to which such person would be entitied as a member of such community or section, or ii). takes any part in the ex-communication of such person, on the ground that such person has refused to pracitee 'untouchability', he shali be punishabie with imprisonment for a term of not less than one month and not more than six months and aiso vvith fine which shail be not iess than one hundred rupees and not more than nve hundred rupees. The phrase suffixed 'on the ground that such person has refused to practice untouchabiiity' is not oniv to be read with ciause (ii'i of Sub-Section 2 but as aiso with clause (i) of Sub-Seciion 2. Therefore, in my opinion, it is in a case where a person denies to any person beionaina to his community, any right or priviiege to which a person Is entitted as a member of such community or section on the ground that such person has refused to practice untouchabilitv, then oniv offence can be said to have been made out. Further, it is absolutely clear that v/hoever takes anv part in the ex-communication, ne snali be liabie ror commission of ofrence under Section 7 (2) of the Act of 1955, only when, it is found that such person has refused to practice untouchability. Therefore, the essence of offence ^ under Section 7 (2) of the Act of 1955 Is that someone has been denied his rights and privilege or ex-communicated on the ground that he refused to practice untouchability. In the present case, ir ihe entire case of the complainant is taken as it is, these essentiai ingredients of Section 7 (2) of the Act QT' 1955 are completelv absent. Therefore, the offence under Section 7 (2) of the Act of 1955 cannot be sustalned and requires interference by this Court. 10. Consequentiy, this petition is partiy atiowed. in so far as registration of offence under Section 7 (2) of the Act of 1955 is concerned, the same is iliegal and set aside. 11. It is made clear that whatever observations have been made bv this Court whiie examining contentions of the rivat parties, are only in order to find out as to whether a prima facie case for proceedings on the compialnt has been made out or not. The learned triai Court shail decide the case after recording evidence, wlthout being infiuenced by any of the observations in the present case and strictly in accordance with iaw. Deepls Sd/- Manindra Mohan Shrivastava Judge