IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44641 of 2009 Anil Kumar Singh Son of Late Ravindra Kumar Singh, Resident of Village-Pepdi Narottam, P.S. Panapur, District- Saran at Chapra.-- Petitioner. Versus 1. State of Bihar 2. Veer Bahadur Ram Son of late Kansi Ram, Resident of Village Pepdi Narottam, P.O.Satjora Bazaar, P.S. Panapur, District- Saran at Chapra.- -Opp.Party. ---------------- For the petitioner : Mr. S.B.K. Mangalam, Mr. Chandan, Advocates For the respondent No.2 : Mr. Kapildeo Singh, Advocate For the State : Mr. Jharkhandi Upadhyay A.P.P. ------- 3. 16.12.2011. Heard Mr. S.B.K. Mangalam, learned counsel appearing on behalf of the petitioner, Mr. Jharkhandi Upadhyaya, learned Additional Public Prosecutor appearing for the State and Mr. Kapil Deo Singh, learned counsel appearing on behalf of the opposite party no.2. This application under section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 24.11.2009 passed by the learned Ist Additional Sessions Judge, Saran at Chapra in S.C./S.T.No.155 of 2009 (State Versus Anil Singh), whereby the learned Judge has been pleased to reject the petition filed under Section 227 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) for discharge of the accused including 2 the petitioner, of the offences punishable under section 3(1)(x) of the S.C./S.T. (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’). The prosecution case as according to the first information report is that the informant had his Gumti at village Pakri Narotam in the district of Saran. It is alleged that on the date of occurrence i.e. 5.6.2007 at about 8 A.M., the accused persons including the petitioner, came at his residence and while abusing the informant by using his caste name, they took away his Gumti, after threatening him with arms. It is the case of the informant that in the year 2003 also, these accused persons had similarly set his Gumti on fire and for which he had instituted a case giving rise to Panapur P.S. Case No.98 of 2003. On the basis of the allegation aforestated, a first information report was instituted giving rise to Panapur P.S.Case No.54 of 2007 registered for offences punishable under sections 447, 379, 504/34 of the Indian Penal Code and Section 3(1)(x) of the SC/ST Act. A summary of facts essential for disposal is that a criminal case was instituted against the petitioner and some others by the 3 opposite party no.2 giving rise to Panapur P.S.Case No.98 of 2003 for the offences punishable under the provisions of the India Penal Code and section 3(1)(x) of the SC/ST Act. The allegation made against the accused persons in the said first information report placed at Annexure-2 charges them of using derogatory and abusive language against the opposite party no.2 in the name of his caste and of demolishing his Gumti. The police, after investigation, in the said case, submitted a charge sheet holding the allegations true under section 435, 447, 290, 504/34 of the Indian Penal Code and section 3(1)(x) of the SC/ST Act against the accused. Cognizance was taken in the said case and the matter was put to trial giving rise to Sessions Trial No.392 of 2005. The accused persons filed an application under section 227 of the Code for discharge of the offences punishable under section 3(1)(x) of the SC/ST Act and which application was allowed by the trial court and the accused were discharged of the offences punishable under the provisions of S.C./S.T. Act by order dated 20.2.2007, copy whereof is placed at Annexure-3 to the application. It is within four months thereafter when the informant opposite party no.2 4 instituted the present F.I.R. on 6.6.2007 with identical allegations and against the same accused persons. The charge sheet having been submitted against the accused in the present case, under the provisions of Section 447, 379 and 504/34 of the Indian penal Code and Section 3(1)(x) of the SC/ST Act, they filed appropriate application under section 227 of the Code for their discharge from the offence punishable under section 3(1)(x) of the SC/ST Act. The said application having been rejected by the impugned order dated 24.11.2009, hence the present application. Learned counsel for the petitioner, with reference to the provisions of Section 3(1)(x) of the SC/ST Act, submits that there are three pre-requisites to constitute an offence under the said provisions, namely; (a) the alleged offender should not be a member of Scheduled caste or Scheduled Tribe, (b) the abusive language should have been used to insult or intimidate with the intent to humiliate the member of a Scheduled Caste or Scheduled Tribe community and (c) such intentional insult or intimidation with an intent to humiliate ought to have taken place within full public view. 5 Mr. Mangalam, learned counsel for the petitioner, submits that for constituting an offence punishable under section 3(1)(x) of the SC/ST Act, the aforesaid pre-requisites have to be satisfied. It is contended that any of the essential prerequisites missing, would not constitute any offence under the SC/ST Act nor is sufficient to subject any accused to the rigours of a trial under the said Act. Learned counsel, with reference to the accusation as set out in the first information report placed at Annexure-1, submits that a bare perusal of the relevant part of the accusation, does not manifest that any attempt to insult or intimidation to the informant by use of abusive language took place in full public view. It is further contended that the informant himself has admitted that the Gumti in question was situated on his own land meaning thereby it was away from public view even if situated near the market place. It is further contended that the use of derogatory or abusive language by the accused persons, have been made in a sweeping manner, without identifying the accused or attributing the same to any of the accused persons. He thus submits that in the circumstances where the provisions of the SC/ST Act are stringent and 6 consequences extreme, a charge made against the accused has to be specific and has to be tested with utmost caution. Learned counsel submits that the continuance of the criminal proceedings against the petitioner under the extremely stringent penal provision of the SC/ST Act on the basis of such general nature of accusation and in absence of the satisfaction of the essential pre- requisites to constituting any such offence, the continuation of the proceedings under the SC/ST Act, would not be sustainable and would rather be an abuse of the process of the court. In continuation, it is submitted that in the background the order passed by the learned court below in rejecting the petition filed on behalf of the petitioner under section 227 of the Code, is mechanical and without appreciation of the accompanying circumstances. Learned counsel for the petitioner, in support of his contention, has relied upon a judgment of the Hon’ble Supreme Court rendered in the case of Swaran Singh and others Vs. The State, reported in (2008) 8 SCC 435. With reference to the paragraph nos.21,24,27,28 and 29 of the judgment, learned counsel submits that though a reference to any person by his caste 7 name may be with an intent to insult or humiliate but the same has to be considered in context with the circumstances or situation where the same was used. He thus submits that simply calling a member of a Scheduled Caste or a Scheduled Tribe by his caste name in absence of any intent to insult or humiliate, would not constitute an offence under the SC/ST Act. Learned counsel further, with reference to the conclusion drawn by the Hon’ble Supreme Court in paragraph no.33 of the judgment, submits that even in the said case where the appellant had been accused of calling the informant by using his caste name, the Hon’ble Supreme Court taking note of the fact that there was nothing in the first information report to show that any member of the public was present when the appellant had uttered the word or that the place where he uttered them was a place which could be seen by the public, held that no prima facie offence was made out against the said offender. Learned counsel submits that even in the present case, there is neither any specific attribution regarding use of any abusive language by any of the accused persons nor the first informant has mentioned in his report that the utterance of the word was made at such a 8 place which was within full public view or any member of the public was present at the scene when those utterances were made. He thus submits that in the circumstances aforesaid, no case for proceeding against the petitioner under the provisions of the SC/ST Act, is made out and the order impugned dated 24.11.2009 rejecting the petition filed for discharge of the offences punishable under the SC/ST Act, is fit to be set aside. Learned counsel for the State opposes the prayer and submits that the allegation as set out in the first information report leaves no doubt that the accused persons are also guilty of the offences punishable under the provisions of the SC/ST Act apart from the offences punishable under the Penal Code. The contentions of the learned counsel for the petitioner have been strongly contested by Mr. Kapil Deo Singh, learned Counsel appearing for the informant opposite party no.2. It is contended that a perusal of the first information report itself demonstrates that the house of the informant was situated within a market place and the occurrence having taken place at 8 A.M. it was within full public view. It is further contended that the very language 9 used by the accused persons were derogatory and undermining the dignity of the informant as a member of the Scheduled Caste and no interference is called for by this Court under Section 482 of the Code with the order passed by the learned court below. Responding to the contentions of the learned counsel for the petitioner that the accusations were not attributable to any of the accused persons individually, learned counsel, with reference to the recitals of the first information report, submits that as each of the accused persons had referred to the informant in derogatory manner, hence, the allegation has been made out against each one of them without any exception. I have heard learned counsel for the parties and have perused the materials available on the records of the proceedings as also the provisions of the SC/ST Act and the judicial pronouncement relied upon by the learned counsel for the petitioner. The provisions of the SC/ST Act are very stringent and have to be followed with utmost care and caution. The Investigating Agency as well as the court, in seisin of the matter, has to deliberate with full consciousness and all responsibility to find out 10 whether at all, the parameters for constituting an offence under the SC/ST Act, stands fulfilled in any proceeding. Its applicability has to be tested in order to ascertain whether or not it reflects the correct state of affairs or is being used as a tool for wreaking vengeance or for settling old scores, property dispute, ego satisfaction or in retaliation for any other cause. There are no two opinions that the SC/ST Act has been passed for protection of the members of the Scheduled Castes and Scheduled Tribes and for upliftment of their status as also to protect them from being chastised by members of the society, but at the same time, it is also true that the said Act is capable of being misused at the hands of unscrupulous litigants or disgruntled individuals. Such attempts should be dealt with utmost seriousness and should be nipped at the very threshold. The records of the case in hand manifest that an earlier case with identical accusation had been instituted by the informant opposite party no.2 in the year 2003 giving rise to Panapur P.S.Case No.98 of 2003 and in which the charge sheet had been submitted against the accused of the present case including the 11 petitioner under the provisions of the Penal Code as well as the S.C./S.T. Act. The discharge petition filed under Section 227 of the Code was allowed on 20.2.2007 (Annexure-3) holding that no case was made out against the petitioner under the provisions of the said Act. The startling feature of the matter is that within four months thereafter, the present case came to be instituted on 6.6.2007. The allegation against the accused is of using almost the same abusive language as in the previous case. The accused are common in the two cases, the manner of occurrence is identical and even the utterances are more or less similar. Apart from the aforesaid facet another important aspect of the matter is that the accusation of use of abusive and intimidating language by the accused persons has been made in a sweeping manner without identifying the individual. The allegation set out in the first information report interestingly attributes one of the accused of instigating the others to take away the Gumti of the informant and while saying so, he allegedly uses abusive language. It is obvious that command must have been given by any one of them and not all of them collectively to each other. The informant does not clarify who 12 issued the command to take away the Gumti and to whom. The explanation of the learned counsel for the informant that each one of the accused persons had used the abusive language, is not borne out from the first information report. The reference to the context is absent. The legal position is that mere accusation of chiding a member of a Scheduled Caste/Scheduled Tribe community by his caste name would not suffice to constitute an offence under the SC/ST Act until it is specifically attributed to a person, who is not a member of the Scheduled Caste/Scheduled Tribes category and has been made to insult or undermine the dignity of a member of the said category and at a place, within full public view. A perusal of the allegation made in the first information report placed at Annexure-1, manifests that none of the aforesaid pre- requisites stands satisfied. Even if an intimidating language was used by one of the accused, in absence of identification of such accused and in absence of any statement that the abuse took place before a member of a public and/or within full public view, it would not suffice to constitute an offence against the accused persons collectively. Even in the case 13 of Swaran Singh (supra), the appellant had allegedly used abusive language against the informant but since the use of abusive language did not take place within full public view nor any member of public was said to be present at the relevant time, the appellant was acquitted of the charges under the SC/ST Act by the Supreme Court holding that no prima facie case was made out against him. For the reasons aforesaid, this application is allowed. The order dated 24.11.2009 passed in S.C./S.T.No.155 of 2009 passed by the Ist Additional Sessions Judge, Saran at Chapra is quashed and set aside. As no offence is made out against any of the accused under the SC/ST Act, all the accused shall stand discharged of the offences punishable under section 3(1)(x) of the SC/ST Act. The trial court shall now proceed accordingly. ahk (Jyoti Saran, J.)