Criminal Misc. No. M-1910 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-1910 of 2010 Date of Decision: 11.05.2010 1. Sher Singh; 2. Gurbhej Singh; both sons of Pipal Singh son of Sh. Kundan Singh, residents of village Kadar Walan, Tehsil and District Moga. ... Petitioners Versus 1. State of Punjab. 2. Gurmail Kaur wife of Sukhdev Singh, resident of Kadarwalan, Tehsil and District Moga. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. M.K. Garg, Advocate, for the petitioners. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. Mr. Rajesh Bhateja, Advocate, for respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Complaint No. 420-1, dated 24.12.02, under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be called as the 'Act' only), titled as, 'Gurmail Kaur Vs. Nirmal Singh and others' (Annexure P1), the Criminal Misc. No. M-1910 of 2010 2 summoning order dated 09.09.04 (Annexure P5), Charge, under Sections 323 and 354 read with Section 34 IPC, and, 3(i)(x) of the Act, framed on 07.11.09, and, all the subsequent proceedings, arising therefrom, has been filed by the petitioners. 2. The facts, in brief, are that, on 15.08.02, Gurmail Kaur, complainant, went to the house of Hanso, co-petitioner (non-applicant), where Chhinda Singh, Nirmal Singh, and, Kuldeep Singh, co-petitioners (non-applicants), were having liquor. When the complainant, reached the house of Hanso, Chhinda Singh and Kuldeep Singh, caught hold of her, and, forcibly took her into the room, where, he (Chhinda Singh), tore her shirt, and tried to outrage her modesty. When the complainant, raised alarm, Sukhdev Singh, her husband reached there, on seeing whom, the accused, fled. Thereafter, the matter, was reported, to the Police Station Kot Isekhan, as well as the Gram Panchayat. It was stated that, when Sube Singh, Assistant Sub Inspector, came for inquiry, the entire Panchayat was present. It was further stated that, the accused, were supported by the Panchayat, before Sube Singh, Assistant Sub Inspector. It was further stated that, in the meanwhile, Sher Singh, Sarpanch, Gurtej Singh, petitioners, and, Iqbal Singh, co-petitioner (non-applicant)abused the complainant, before the Panchayat, and uttered the words “Kutie Chhurie Ee Panchayat Tan Sadi Hai Ate Police Ve Sadi Hai Tu Sada Kujh Nai Vegar Sakdi.” It was further stated that the aforesaid persons, also threatened the complainant, that she will be shunted out of the village alongwith her family. It Criminal Misc. No. M-1910 of 2010 3 was further stated that, at the relevant time, besides Sube Singh, Assistant Sub Inspector, Pippal Singh son Ram Singh, resident of village Kadar Wala, was also present. It was further stated that, even Sube Singh, Assistant Sub Inspector, supported the accused, and, did not prevent them, from abusing the complainant. It was further stated that, later on, the complainant and her husband, went to the Police Station, with a complaint, against the aforesaid persons, but in vain. It was further stated that, instead the complainant and her husband, were threatened, by the Police, that they would be implicated, in a false case. Left with no other alternative, the aforesaid complaint, was filed. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioners, submitted that, the ingredients, required for constituting the offence, punishable under Section 3(i)(x) of the Act, are not fulfilled, in as much as, it was not mentioned therein, that the complainant, belonged to Scheduled Caste and the petitioners, did not belong to Scheduled Caste. He further submitted that, even the alleged occurrence, did not take place, in the public view. He further submitted that, under these circumstances, the complaint, the summoning order, and, the subsequent proceedings, arising therefrom, are liable to be quashed. He also placed reliance, on Gorige Pentaiah Vs. State of A.P. & others, 2008(4), RCR (Criminal), 171 (SC), Jogender Singh and others Vs. State of Haryana and another, 2009(2), RCR Criminal Misc. No. M-1910 of 2010 4 (Criminal), 100 (P&H), M.L. Ohri and others Vs. Kanti Devi, 2009 (3), RCR (Criminal) 989 (P&H), in support of his contentions. 5. On the other hand, the Counsel for respondent No. 2, submitted that, the ingredients, required for constituting the offence, punishable under Section 3(i)(x) of the Act, are fulfilled, from the allegations, contained in the complaint. He further submitted that, in para No. 1 of the complaint (Annexure P1), it was, in clear-cut terms, stated that, the complainant, belonged to 'Majbi Sikh' caste, and, working as a labourer and resident of village Kadarwala, Tehsil and District Moga. He further submitted that, the mere fact, that it was not mentioned, in the complaint, that petitioner Nos. 1 and 2, did not belong to Scheduled Caste or Scheduled Tribe, could not be said to be sufficient, to come to the conclusion, that the ingredients, required for constituting the offence, are not fulfilled. He further submitted that, during the course of evidence, it would be proved, as to whether, the petitioners, did not belong to Scheduled Caste or Scheduled Tribe. He further submitted that, the occurrence, took place, in the public view. He also placed reliance, on Ashabai Machindra Adhagale Vs. State of Maharashtra & others, 2009(2), RCR (Criminal) 86 (SC), a case, decided, by a three Judge Bench of the Apex Court, and, Swaran Singh & others Vs. State through Standing Counsel & another, 2008(4), RCR (Criminal), 74 (SC), in support of his contention. He further submitted that the complaint, the summoning order and the subsequent proceedings, could not be said to be abuse of the process of the Court. Criminal Misc. No. M-1910 of 2010 5 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to Criminal Misc. No. M-1910 of 2010 6 cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case against the accused. 4)Where the allegations in the FIR do not constitute a cognizable offence, but constitute Criminal Misc. No. M-1910 of 2010 7 only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did Criminal Misc. No. M-1910 of 2010 8 constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. Now adverting to the facts of the instant case, it may be stated here, that in para No. 1 of the complaint, it was, in clear-cut terms stated, by the complainant, that he belonged to 'Majbi Sikh' caste, and, working as a labourer. No doubt, in the complaint, it was not stated, by the complainant, that the petitioners, did not belong to Scheduled Caste or Scheduled Tribe. Such a fact, could be proved, during the trial of the case. Even the occurrence, took place, in the public view. In Ashabai Machindra Adhagale's case (supra), decided by a three Judge Bench of the Apex Court, it was not stated, in the FIR, that the accused, belonged to Scheduled Caste or Scheduled Tribe. In these circumstances, it was held, by the Apex Court, that the FIR, could not be said to be an encyclopedia, which must disclose all facts and details, relating to an offence. Whether the accused, belonged to Scheduled Caste of Scheduled Tribe, could be gone into, when the matter would be investigated, or, during the trial of the case. The principle of law, laid down, in Ashabai Machindra Adhagale's case (supra), is fully applicable, to the facts of the instant case. The petitioners, as is evident, from the allegations, contained in the complaint, abused the complainant, Criminal Misc. No. M-1910 of 2010 9 before the Panchayat, and, uttered the words “Kutie Chhurie Ee Panchayat Tan Sadi Hai Ate Police Ve Sadi Hai Tu Sada Kujh Nai Vegar Sakdi.” At that time, one Pippal Singh son of Ram Singh, was also present. The principle of law, laid down, in Gorige Pentaiah's case (supra), decided by a two Judge Bench of the Apex Court, Jogender Singh and others', and, M.L. Ohri and others' cases (supra), decided by this Court, to the effect that, if, in the complaint or the FIR, it is not stated, that the accused, did not belong to Scheduled Caste or Scheduled Tribe, then the ingredients, were not fulfilled, for constituting the offence, punishable under Section 3 (i) (x) of the Act, being contrary to the principle of law, laid down, in Ashabai Machindra Adhagale's case (supra), decided by a larger Bench of the Apex Court, shall not hold the field. No help, therefore, can be drawn, by the Counsel for the petitioners, from the cases, relied upon by him. The complaint and the summoning order, as also the subsequent proceedings, arising therefrom, therefore, cannot be said to be abuse of the process of the Court. 8. For the reasons recorded above, Criminal Misc. No. M-1910 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned immediately. 11.05.2010 (SHAM SUNDER) Amodh JUDGE