IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.1045 of 2006 (U/s 482 of Cr.P.C.) Kundan Singh Bathyal and another …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: August 9, 2010 Mr. D.K. Sharma, Advocate for the applicants Mr. Prabhakar Joshi, Brief Holder for the State Mr. B.S. Adhikari, Advocate for respondent no.2 HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioners/applicants have sought quashing of the charge sheet no.1/2005 dated 16.6.2006 P.S. Thal, District Pithoragarh, under Sections 324, 504, 506, 147 of the Indian Penal Code, 1860 (for short, IPC) and Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act) as well as quashing of the entire proceedings arising out on the basis of said charge sheet. Heard learned counsel for the parties and perused the affidavit and counter affidavit. Brief facts of the case are that respondent no.2 Smt. Devki Devi moved an application u/s 156(3) of Cr.P.C. against the present applicants and three others with the allegations that on 25.10.2004 when the son of respondent no.2/complainant had gone to watch Ramleela at about 8 PM, co-accused Bhupendra Singh, Dan Singh and Naveen Chandra beaten him and used caste indicating words. It is further alleged that, on receiving the information, when the complainant and her family members reached at the place of occurrence, the present applicants, namely, Kundan Singh and Smt. Hansa Devi pounced upon them and started committing marpeet with them. 2 With these averments, respondent no.2 Smt. Devki Devi moved an application u/s 156(3), on the basis of which, a case crime no.186-A of 2004 was registered against the applicants under Sections 324, 504, 506, 147 of IPC and Sect.3(1)(x) of Act. After lodging of the FIR, the matter was investigated and, on completion of investigation, the I.O. submitted charge sheet against the applicants u/Ss 324, 504, 506, 147 IPC and Section 3(1)(x) of the Act in the court, on the basis of which, learned Judicial Magistrate took cognizance of the offence against the applicants and subsequently criminal proceedings were initiated against them. Against the said charge sheet and the criminal proceedings, the applicants have preferred the present application u/s 482 of Cr.P.C. before this Court. Learned counsel for the applicants argued that the provisions of the SC/ST Act are not attracted in this case as in the entire complaint, it was nowhere mentioned that the applicants were not the members of Scheduled Caste or a Scheduled Tribe and they intentionally insulted or intimated with intent to humiliate the respondent no.2 or his son within public view, hence the offence punishable under the SC/ST Act is not made out. I find force in this argument put forth on behalf of the applicants. On a bare perusal of the complaint itself, there is no mention whatsoever that the applicants were not the members of Scheduled Caste or a Scheduled Tribe community and they intentionally insulted or intimated with intent to humiliate respondent no.2 within public view. It is settled law that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the applicants to face the criminal trial under the SC/ST Act would be totally unjustified leading to abuse of process of law. Reliance is placed upon a Hon’ble Supreme Court verdict in the case of “Gorige Pentaiah Vs. State of Andhra Pradesh & others reported in (2009) 1 SCC (Cri.) 446”. Paragraph 6 of the said judgment is reproduced as below: - “In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27.05.2004, 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 3 have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 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 appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 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” Perusal of the complaint lodged by the respondent no.2 shows that the respondent no2/complainant has nowhere alleged that the applicants are not the member of the Scheduled Caste of Scheduled Tribe community and they intentionally insulted or intimated with intent to humiliate respondent no.2 or her son within public view. As such, the Court is of the view that as against the applicants, since the ingredients of the offence punishable u/s 3(1)(x) of the Act are not made out, as such the criminal trial with respect to the said offence is liable to be quashed. So far as the rest of the offences are concerned, it transpires that the same involves absolutely disputed questions of fact which cannot be decided at this stage by this Court. The trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint are taken at their face value and accepted in their entirety as well as on the basis of evidence collected by the I.O., I am of the view that the charge sheet is rightly submitted against the applicants u/Ss 147/324/504/506 IPC as the said offences are prima facie made out against the applicants at this stage. However, the trial court will decide the case after recording the evidence adduced before it. 4 For the reasons recorded above, the C482 petition is partly allowed with the observation that the proceedings under Section 3(1)(x) of the SC/ST Act are quashed as against the present applicants only. However, so far as the rest of the offences are concerned, the trial court shall proceed as per law. Interim order dated 23.3.2007 is vacated. (Dharam Veer, J.) 9.8.2010 RG