IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.46019 of 2008 1. Shyam Chaudhary @ Shyam Kumar Chaudhary, son of Sri Girish Prasad Chaudhary, resident of Mohalla-Gandhi Nagar, P.O. and P.S. Kahalgaon, District-Bhagalpur. 2. Sheo Kumar Gupta, son of Sri Abhay Gupta, resident of Mohalla-Sikargarh Tola, P.O. and P.S. Kahalgaon, District-Bhagalpur. 3. Abhay Gupta alias Abhay Kishore Gupta, son of Raghunandan Gupta, resident of Mohalla-Sikargarh Tola, P.O. and P.S. Kahalgaon, District-Bhagalpur. …………………………………………………….Petitioners. Versus 1. The State Of Bihar. 2. Arjun Kumar Rajak, son of Bateshwar Rajak, resident of Village-Sheo Kumari, Pahar, P.O. and P.S. Kahalgaon, District-Bhagalpur. ………………………………………….Opposite Parties. ---------------------------------- For the Petitioners : Mr. Mahesh Narain Parwat, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. --------------------------------- O R D E R 6. 18.10.2011. The petitioners have approached this Court, by filing this application, under Section 482 of the Code of Criminal Procedure, for quashing the order dated 16.8.2008 passed by the Chief Judicial Magistrate, Bhagalpur, in SC/ST P.S. Case No.42 of 2007, G.R. No.3159 of 2007, whereby the Chief 2 Judicial Magistrate, Bhagalpur, took the cognizance of the offence under Sections 341, 323 and 504/34 of the Indian Penal Code and Sections 3(1)(x) of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the petitioners. 2. In brief, the case is that on the basis of the written statement of the opposite party no.2, SC/ST P.S. Case No.42 of 2007 was instituted on 9.12.2007 under Sections 341, 323 and 504/34 of the Indian Penal Code and Sections 3(1)(x) of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the petitioners. The opposite party no.2 has alleged in his written statement that he is running a generator set for his livelihood, putting in Holding No.46 of the petitioner no.1. In that holding, there are several tenants, who are running there business but the rent receipts are not being provided by the petitioner no.1. Earlier, that holding belonged to other, but in the year 1994, that holding was sold to Chandrashekhar Chaudhary, the brother of the petitioner no.1 and Gauri Shankar, for which a civil case is pending before the Civil Court at Bhagalpur. The landlord of the said holding with an intention to avoid complicated litigation of eviction of tenants 3 and to get the holding vacated, took help of Nagar Panchayat Kahalgaon and got declared the holding/premises abandoned and in dilapidated condition for demolition of the same behind the back of the tenants. The further case of the opposite party no.2 is that on 28.11.2007, the accused- petitioners came at that holding and asked him to remove the generator set and vacate the premises saying that otherwise premises/house will be demolished through Bulldozer. The opposite party no.2 has further alleged that on reading the notice, he came to know that the name of the tenant to run the generator had been shown as Sheo Kumar Gupta in his place, on which, he made protest saying to the petitioner no.1 that he is paying regular rent and why the name of Sheo Kumar Gupta has come as a tenant. Thereafter, the petitioner no.1 became angry and started abusing the opposite party no.2 denoting his caste name ‘Dhobia’ and ordered to throw the generator. At that time, he was assaulted by the petitioner nos.2 and 3. 3. The police on investigation submitted the chargesheet in the court of the Chief Judicial Magistrate, who on perusal of the chargesheet and the case diary took the cognizance of the offence under Sections 341, 323 and 504/34 4 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the petitioners through the impugned order dated 16.8.2008. 4. Learned counsel for the petitioners submits that the opposite party no.2 was not the tenant and running the generator set as alleged in the F.I.R. rather the generator set was being ran by the tenant, Sheo Kumar Gupta, which would appear from Annexure-‘5’ to this application, the photocopy of the agreement entered in between the petitioner no.1 and petitioner no.2. It has also been submitted that it would appear from the order-sheet of the Executive Magistrate, Kahalgaon, Annexure-‘7’ to this application, that the opposite party no.2 had appeared in course of hearing before the Executive Magistrate, Kahalgaon, on 6.11.2007 to make him as a party in pending proceeding. As such, the allegation of opposite party no.2 in the complaint petition that he came to know about vacating the premises etc. on the date of occurrence is false. Learned counsel for the petitioners further submits that from perusal of the F.I.R. , it is apparent that none was present at the place of occurrence at the time of alleged occurrence except the petitioners and opposite party no.2, 5 hence, if the allegation as made in the F.I.R., is considered to be true, no offence under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act would be attracted as the said abuse was not within the public view and placed reliance on a decision of this Court in the case of Om Prakash Singh and another Vs. State of Bihar and another {2009(3) PLJR 636}. Learned A.P.P. for the State submits that it has been alleged in the F.I.R. that at the time of the alleged occurrence, the opposite party no.2 was assaulted and abused denoting the caste name ‘Dhobia’ by the petitioners and the witnesses in paragraphs-9 and 10 of the case diary have stated only the exchange of hot words and they have denied about the abusing to opposite party no.2 denoting his castes name by the petitioners. 5. The written report, which is the basis of the F.I.R., does not disclose as to whether the abuses hurled at the opposite party no.2 were in the public view, denoting his castes name ‘Dhobia’ and, if so, in whose presence, the opposite party no.2 was abused denoting his caste’s name. The witnesses, as appears from the case diary, have not stated about abusing the opposite party no.2 denoting the caste’s 6 name by the petitioners. To constitute the offence under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there must be intentionally insults or intimidates with intent to humiliate a member of a scheduled Caste or Schedule Tribe in any place within public view. As such, from perusal of the F.I.R. and the case diary, the offence under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act does not appear to be made out rather the offence of only assault to the opposite party no.2 at the alleged time of occurrence appears to be made out against the petitioners. 6. Under the facts and the circumstances, the impugned order taking cognizance against the petitioners under Sections 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is hereby quashed and the application is allowed only to that extent. However, the cognizance in respect of other offences under the Penal Code appears to have been made out and the trial will continue against the petitioners in that regard. P.S. (Rajendra Kumar Mishra, J)