IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 Crl.MC.No. 117 of 2011() ------------------------ ( SC.141/2010 of SESSIONS COURT, PATHANAMTHITTA CRIME NO. 757/2006 OF PATHANAMTHITTA POLICE STATION. ) PETITIONER/ ACCUSED NO.3 --------------------------- RONY MATHEWS, AGED 26 YEARS, S/O.MATHEWS,PUTHENPURAYIL HOUSE,VAZHAMUTTOM EAST, VALLIKKODE VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. MANISH,S/O.KUNJUKUNJU, VALIYAMDATHINAL THEKKETHIL HOUSE,VAZHAMUTTOM EAST,VALLIKODU VILLAGE,PATHANAMTHITTA. BY PUBLIC PROSECUTOR ADV. SHRI K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.117 of 2011 -------------------------------------- Dated this the 13th day of January, 2011. ORDER Petitioner is accused No.3 in S.C.No. 141 of 2010 of the court of learned Principal Sessions Judge, Pathanamthitta. Pathanamthitta police filed Annexure-2, final report in Crime No.757 of 2006 alleging that petitioner and others committed offences punishable under Sections 143, 147, 341 and 323 read with Section 149 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short, “the Act”). Case is that on 06.09.2006 petitioner and other accused formed unlawful assembly from the Panchayat road, committed rioting, wrongfully restrained the defacto complainant who allegedly belonged to the Sambava community, insulted the defacto complainant calling caste name and thereby committed the said offences, Accused Nos.1, 2, 4 and 5 faced trial before the learned Sessions Judge in S.C.No.263 of 2008 and were acquitted by Annexure- 3, judgment for want of evidence. Since petitioner was not available for trial the case against him was refilled as S.C.No.141 of 2010. Petitioner now seeks intervention of this Court under Section 482 of the Code of Criminal Procedure (for short, “the Code”) to quash Annexure-2, final report and all proceedings in S.C.No.141 of 2010 of the court of Principal Sessions Judge, Pathanamthitta. It is contended that the defacto complaint did not state in Annexure-1, first information statement his caste but, in the final report it is stated that he Crl.M.C.No.117/2011 2 belonged to Sambava community which according to the petitioner does not come in the list of either Scheduled Caste or Scheduled Tribe. Further contention is that offences alleged are not made out and that at any rate learned Sessions Judge while disposing of S.C.No.263 of 2008 has found that the allegations are not well-founded. Hence it is prayed that the proceedings may be quashed. Learned counsel argued that under the relevant rules of the K.S.S.R. which is adopted from the relevant provisions of the Constitution of India neither list-I or II dealing with SC/ST communities, respectively contain Sambava community as falling within the said Caste or Tribe. Learned counsel has also invited my attention to paragraph 23 of Annexure-3, Judgment that apart from the oral evidence there is no documentary evidence produced to prove that defacto complainant belongs to the Scheduled Caste or Scheduled Tribe. In such circumstances, learned Sessions Judge was not correct in taking cognizance under Section 3(1) (x) of the Act. It is prayed that if not all offences, charge under Section 3(1)(x) of the Act may be quashed. Learned Public Prosecutor submitted that Annexure-3, judgment shows that relevant witnesses cited by prosecution has supported the prosecution and that the mere reason of acquittal of some of the other accused is no ground to quash proceedings against petitioner. 2. Now the prayer to quash the proceedings is confined to the charge under Section 3(1)(x) of the Act . True in Annexure-1, first information Crl.M.C.No.117/2011 3 statement the defacto complainant did not state his caste name but when examined in S.C.No.263 of 2008 (against accused 1, 2, 4 and 5) defacto complainant claimed that he belonged to the ‘Paraya’ community which is a Scheduled Caste. That, prosecution did not produce any certificate to that effect while the case against accused Nos.1, 2, 4 and 5 was tried is no ground to quash proceedings against petitioner under Section 3 (1) (x) of the Act. It is also not as if prosecution cannot produce the relevant certificate before the learned Sessions Judge even if that certificate did not form part of documents produced under Section 173(5) of the Code. 3. It is also not as if petitioner could not request for discharge so far as offence under Section 3(1)(x) of the Act is concerned. Admittedly, charge against petitioner has not so far been framed. When the charge is being framed against petitioner he has a right to address learned Sessions Judge on whatever contentions he had so far as offence under Section 3(1)(x) of the Act is concerned and if the learned Sessions Judge is impressed by that argument it is open to the learned Sessions Judge to frame a charge for other offences as are attracted under Section 228 of the Code and proceed as provided therein. When such an opportunity is available to the petitioner I do not think it necessary at this stage in the circumstances stated above to interfere under Section 482 of the Code and quash the charge against the petitioner under Section 3(1)(x) of the Act. 4. It is requested by learned counsel that petitioner may be permitted Crl.M.C.No.117/2011 4 to move an application for permanent exemption under Section 205 of the Code before the learned Sessions Judge. If petitioner is otherwise entitled it is open to him to move such application as provided under law. 5. In the light of what I am stated above, the request to quash charge under Section 3(1)(x) of the Act cannot be allowed. But I make it clear that it is open to the petitioner to take appropriate defence at the appropriate stage as above stated. With the above direction petition is dismissed. THOMAS P.JOSEPH, Judge. cks