IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14463 of 2008 1. Dr. Dilip Kumar Singh, son of Sri Mithilesh Kumar Singh, Mohalla Bhojpur Colony, Ram Lakhan Path, Kankarbagh, PS Kankarbagh, Dist. Patna. 2. Manoj Kumar, son of Sri Mahendra Rai, Mohalla Mithapur, Engineering Qr. No. 50, PS Jakkanpur, District Patna – petitioners. Vs 1. The State of Bihar. 2. Chandra Shekhar Prasad Rajak, Junior Engineer, Chhaju Bagh Prasakha, PS Gandhi Maidan, District Patna – opp. parties. … For the petitioners : Mr. Gajendra Pratap Singh, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For Opp. party no.2 : Mr. Naresh Dikshit, Mr. Manoj Kumar and Mr. Kunal Tiwary, Advocates. 3 23.3.2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 31.1.2008 passed by the Chief Judicial Magistrate, Patna in Gandhi Maidan PS Case No. 322/2007/GR No. 4423/2007 by which cognizance for the offences under sections 448, 353, 504 and 506/34 of the Penal Code and section 3(x) of the SC/ST Act has been taken. The facts, in brief, are that on 19.9.2007 it is alleged that the petitioners entered the Chajju Bagh office of the informant Junior Engineer and submitted some application. It is said that the petitioners demanded that they should be given the contract for repair etc. of the house mentioned in the application. The informant is said to have asked the petitioners to contact the Executive Engineer. It is alleged that the petitioners abused the informant, lifted his hand to assault the informant. In the mean time some other persons came at the place and intervened in the matter. It is also said that the petitioners had tried to use force to deter the informant, a public servant in performing his duty. On the basis of the aforesaid facts the case was instituted and 2 investigation began. Counsel for opposite party no.2 has produced the copy of the case diary. In the further statement which was recorded on 19.9.2007 it is mentioned that the petitioners addressed the informant by his caste name and abused him. It is also alleged in the further statement that the petitioners tried to assault him but he was able to ward off the assault. Other witnesses have also been examined. All of them have stated that the petitioners abused the informant. However, they have not stated that he was abused by calling his caste name. They also do not support the fact that the petitioners actually assaulted the informant, rather, they said that ‘MAARNE KO HAATH UTHAYA’. Counsel for the petitioners submits that no offence is made out for the offences for which cognizance has been taken and that the prosecution has been launched with a malafide intention. Counsel for opposite party no.2 submits that the allegations made in the further statement make out a case under sections 353 of the Penal Code and 3(x) of the SC/AT Act and this court should dismiss this application. Reverting to the facts which has been referred to by the petitioners, it is clear that on the date of occurrence the petitioners had filed a petition before the Chief Judicial Magistrate stating therein that the informant and they had hot exchange of words and the informant was aggrieved by the fact that the petitioners had made certain queries with respect to payments made in the rally held on 15.10.2005 3 addressed by Congress Chief Smt. Sonia Gandhi for which payments had been made to the informant. The informatory petition is on record. Learned counsel for the petitioners also submits that the informant had also forwarded the copy of the allegations in the FIR to the superior officer which is contained in Annexure 8. This fact is not controverted by the opposite party. The document forwarded vide memo no.152, dated 19.9.2007 indicates the statement as made in the FIR does not state that the petitioners had created hindrance in the work. It also does not speak about the use of abusive words along with the caste name. It is also submitted that after the petitioners had been granted bail on 26.9.2007 by the Sessions Judge, patna, an application was filed by the Investigating Officer before the Chief Judicial Magistrate stating that section 3(x) of the SC/ST Act would be applicable. The question before this court is whether the petitioners are liable to be prosecuted under section 3(x) of the SC/ST Act and the other sections for which cognizance has been taken. Dealing first with section 448 of the Penal Code which relates to the offence of house breaking. The defining section is clear that whoever commits house breaking shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Obviously the petitioners had not entered the house of the informant and that in the manner prescribed under section 445 of the Penal Code and, thus, no case is made out for taking cognizance 4 under section 448 of the Penal Code, although some other section may be applicable, which can be considered at the time of framing of charges. Cognizance has also been taken under section 353 of the Penal Code. Section 353 says that whoever assaults or uses criminal force to deter public servant from discharge of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both. The allegations in the FIR are that the petitioners had visited the office of the informant. The work for which they had gone to the office according to the FIR was to ask the informant to allot them particular works and in that process it is said that the petitioners lost their cool and abused the informant as well as raised their hands against him. The allegations as stated in the FIR would come under section 351 of the Penal Code, that is, preparation or intention to assault, rather, than section 353 of the Penal Code. From the facts aforesaid it appears that there was intention to assault and abuse hurled against the informant who was sitting in his office and thereby created nuisance and problem for the informant. This aspect of the matter will have to be considered at a later stage and perhaps it would not be proper for this court to hold 5 that the court cannot take cognizance under section 353 of the Penal Code. The court has also taken cognizance under sections 504 and 506 of the Penal Code. I do not find that the contents of the FIR or even the contents of the case diary makes out an offence under section 504 of the Penal Code and it cannot be held that the petitioners would be responsible for committing an offences which would amount to breach of peace and, therefore, I do not find that sections 504 and 506 of the Penal Code are applicable in this case. Lastly this court would consider whether the mere use of name of caste amounts to an offence under section 3(x) of the SC/ST Act. In this context I must state that in the FIR there is no allegation that the petitioners had even abused the informant by using his caste name. In the further statement it is said that informant was abused by taking his caste name. Mere use of the word ‘Dhobi Jaati’ without specifying that in what manner the abuses were made is a vague allegation and cannot be termed to come within SC/ST Act. Apart from this, this part of the allegation is not present in the FIR and, therefore, it would appear that it has been deliberately included in the further statement by the informant, specially in view of the fact that other witnesses examined in the case diary do not support this aspect of the matter. My view is supported by a judgment of this court exactly on this point in the case of Hari Shankar Sah vs. State of Bihar, 2005 (1) PLJR 579. On the basis of the aforesaid facts and the decision referred to above, this court finds that no offence is made out 6 under section 3(x) of the SC/ST Act. In the light of the discussions made above, impugned order taking cognizance as far as it concerns under section 3(i)(x) of the SC/ST Act and sections 448, 504 and 506 of the Penal Code are hereby quashed. This application is allowed in part. haque (Sheema Ali Khan, J.)