Criminal Revision No. 638 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 638 of 2006 Date of Decision: 16.03.2010 Tek Ram son of Sh. Mai Ram, Chowkidar-cum-Sweeper, District Sports Office, Rohtak (deceased) through Ashok Kumar son of Sh. Tek Ram, r/o village Nidana, Tehsil Meham, Distt. Rohtak. ... Revision-Petitioner Versus 1. Ravi Bhati son of Thakar Dass Bhatia, Junior Engineer, UHBVN Ltd., Sub Division No. 1, Rohtak. 2. Deepak Popli son of Ram Sawroop Popli, Sub-Divisional Officer, UHBVN Ltd. Sub-Division No. 1, Rohtak. 3. State of Haryana. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rajbir Sehrawat, Advocate, for the revision-petitioner. Mr. J.S. Yadav, Advocate, for the respondent/complainant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for respondent No. 3 – State. SHAM SUNDER, J. * * * * This revision-petition is directed against the order dated 14.02.06, rendered by the Court of Additional Sessions Judge, Rohtak, Criminal Revision No. 638 of 2006 2 vide which, it accepted the revision-petition, against the order dated 26.11.05, rendered by the Court of Chief Judicial Magistrate, Rohtak, vide which, it summoned, respondents No. 1 and 2, for the offence, punishable under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be called as the 'Act' only). 2. The facts, in brief, are that, Tek Ram, revision-petitioner, was serving as Chowkidar-cum-Sweeper, in the office of District Sports Officer, and, residing in a room, situated therein. It was stated that, on 15.03.04, accused/respondents No. 1 and 2, visited the office of the District Sports Officer, to check the supply of electricity, but went back. It was further stated that, on 16.03.04, at about 6.00 PM, the accused, again visited, the office of the District Sports Officer, and asked the complainant, as to why, he had taken the wire, in his room, and told him, to get installed an electric meter. It was further stated that, the complainant, told them, that he was a Chowkidar-cum- Sweeper, in the office, and belonged to Harijan Community. It was further stated by him, that he was not committing theft of energy, and, that the wire was connected, from the Sports Office. It was further stated that, thereafter, the accused, went back, threatening the complainant, that they would involve him, in a theft case, or make him to pay them Rs. 1,000/-. 3. It was further stated that, on 22.03.04, in the evening, at about 5.30 PM, the accused, again came there, and inquired, as to Criminal Revision No. 638 of 2006 3 whether, the wire had not been disconnected or the complainant had applied for the installation of electric meter or not. It was further stated that, it was informed by the complainant, to the accused, that he had not applied for the installation of any new meter, and, they should talk, to the District Sports Officer. It was further stated that, both the accused, abused the complainant, in the name of his caste, in the presence of many persons, gathered at the spot. It was further stated that, the complainant, many a time, requested the accused, not to humiliate him, but in vain. It was further stated that, thereafter, both the accused, left the spot, threatening the complainant, to teach him a lesson. It was further stated that, on the next day, the complainant, moved an application, to the Superintendent of Police, Rohtak, regarding the aforesaid incident, but to no avail. Ultimately, left with no alternative, the aforesaid, complaint was filed. 4. After recording the preliminary evidence, the trial Court, summoned both the accused, to face trial, for the offence, punishable under Section 3(i)(x) of the Act. 5. Feeling aggrieved, a revision-petition, was filed by the revision-petitioners (now respondents), which was accepted, by the Court of Additional Sessions Judge, Rohtak, vide the order impugned. 6. Feeling dissatisfied, the instant revision-petition, has been filed by the revision-petitioner/complainant. 7. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. Criminal Revision No. 638 of 2006 4 8. The Counsel for the revision-petitioner, submitted that the Court of Additional Sessions Judge, Rohtak, acted illegally, in coming to the conclusion that, no offence, punishable under Section 3(i)(x) of the Act, was made out, from the allegations, contained in the complaint. He further submitted that the Revisional Court, was also wrong, in coming to the conclusion, that the respondents, had been falsely implicated, as a counter-blast to the checking, made at the residence of District Sports Officer, on 15.03.04. He further submitted that, at the time of deciding the revision, against the summoning order, the Court, was not required, to go into the probable defence of the accused, nor it was required, to scrutinize the preliminary evidence, in a manner, as it was deciding the case finally. He further submitted that the Court of Additional Sessions Judge, in a revision, could not interfere, into the summoning order, until and unless, it came to the conclusion, that there was gross irregularity or illegality, in exercise of jurisdiction by the trial Court. He further submitted that the Court of Additional Sessions Judge, also could not go into the merits of the case. He further submitted that the order, passed by the Court of Additional Sessions Judge, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondents, submitted that, since the petitioner/complainant, was a Chowkidar- cum-Sweeper, in the office of the District Sports Officer, and, had been given one room, by the said officer, to live, when the premises of the office, were checked earlier, by respondents No. 1 and 2, they found, Criminal Revision No. 638 of 2006 5 that he was committing theft of energy, and, as a counter-blast, the complaint, was got filed, through the Chowkidar, by the said officer. He further submitted that the Revisional Court, was right, in coming to the conclusion that, no offence, under Section 3(i)(x) of the Act, was made out, against the accused. He further submitted that the Revisional Court, was also right, in holding, that the complaint, had been filed, just as a counter-blast. He further submitted that, even the act of the accused/respondents No. 1 and 2, was in the purported discharge of their official duty, and, as such, without prior sanction, no complaint, could be filed, nor cognizance thereof, could be taken. He further submitted that the order of the Revisional Court, being legal and valid, is liable to be upheld. 10. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded hereinafter. At the time of summoning the accused, the Court, is only required, to go through the allegations, contained in the complaint and the preliminary evidence, produced by the complainant, to find out, as to whether, there were sufficient grounds, to proceed, against the accused or not. At that time, the evidence, is not required to be sifted, in the manner, as it is required to be done, at the time of final decision of the case. Even, at that time, the Court, is not required, to take into consideration, as to what, would be the probable defence of the accused. The trial Court, on going through the allegations, Criminal Revision No. 638 of 2006 6 contained, in the complaint, and the preliminary evidence, produced by the complainant, was right, in coming to the conclusion that, since the accused/respondents No. 1 and 2, abused the complainant, who was a Scheduled Caste, in the name of his caste, in the public view, they committed the offence, punishable under Section 3(i)(x) of the Act. In Smt. Nagawwa Vs. Veerana Shivalingappa Konjalgi and others, AIR, 1976 (SC), 1947, it was observed as under:- “It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view o find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (i) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out Criminal Revision No. 638 of 2006 7 absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. (ii) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (iii) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant of inadmissible; and . (iv) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.” 11. In the instant case, the order impugned, passed by the Revisional Court, is not in consonance with the aforesaid proposition of law, laid down, by the Apex Court. The Revisional Court, set aside the order of the trial Court, on the basis of conjectures and surmises, and, on the ground, that the complaint, was a counter-blast, to the checking, which was made, by the accused/respondents No. 1 and 2, at the office of the District Sports Officer, of which, the complainant, was Chowkidar-cum-Sweeper. The Revisional Court, proceeded, in the manner, as if, it was hearing the appeal, against the order of conviction. The Revisional Court, entered into merits of the case, and took into consideration the probable defence of the accused, which was not its domain. In the complaint, there were specific allegations, that when the Criminal Revision No. 638 of 2006 8 complainant told the accused/respondents No. 1 and 2, that he was not committing theft of electricity, they uttered the following words:- “Sale Balmiki Chure Hote Hain Chure, Tu Chura He Raha. Tere Ko Bataya Tha Ki Apne Kamre Ki Dori Hata De, Aue Naya Meter Lagwa, Parantu Tune Kuchh Nahi Kiya Kyonki Tu Hai Chura Dedh Aur Chura Dedh Hi Raheg. Tere Jaise Harijan Neech Jaate Ne Department Ka Naas Kar Rakha Hai. Tere Jaise Nich Jati Ke Balmiki Ko Jail Ki Hawa Khani Paregi. Bijli Chore Me Aur Naukri Bhi Jayegi.” 12. At that time, Ajit Singh son of Dalip Singh, resident of Rajender Colony, Gohana Road, Rohtak, Azad Singh son of Amir Singh, resident of Ram Gopal Colony, Rohtak, and many other persons, were present. The alleged offence, punishable under Section 3(i)(x) of the Act, was committed, in the public view. The order of the Revisional-Court, being illegal, is, thus, liable to be set aside. 13. Coming to the factum, as to whether, any sanction, was required to be obtained, before filing the complaint or taking the cognizance thereof, it may be stated here, that to abuse a person, in the name of his caste, was not a part of the purported official duties of the accused/respondents No. 1 and 2. The accused, thus, did not act in the purported discharge of their official duties, by abusing the complainant, in the name of his caste. No sanction, whatsoever, was, thus, required. The submission of the Counsel for the respondents, thus, being without merit, must fail, and the same stands rejected. 14. For the reasons recorded above, the revision-petition, is Criminal Revision No. 638 of 2006 9 accepted. The order dated 14.02.06, rendered by the Court of Additional Sessions Judge, Rohtak, is set aside. Any observation made, in this order, shall not be taken, as an expression of mind, on merits of the case. 15. The trial Court, is directed, to proceed further, in accordance with the provisions of law. 16.03.2010 (SHAM SUNDER) Amodh JUDGE