Crl.R.No.1099 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.1099 of 2010 (O&M) Date of Decision:September 30, 2010 Smt.Chander Kalan .....Petitioner v. Rameshwar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Naveen S.Bhardwaj, Advocate for the petitioner. Mr.R.A.Sheoran, Advocate for the respondents. ...... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Section 397 read with Section 401 Cr.P.C. against the order dated 11.3.2010 passed by learned Sessions Judge, Bhiwani, vide which it was held that prima facie case punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short `SC & ST Act') is not made out against the respondents-accused and hence they were discharged for the said offences and the case was remanded to learned Magistrate for trial of respondents-accused for offences punishable under Sections 323 and 506 of the Indian Penal Code (for short the `IPC') only. 2. Briefly stated the present revision-petitioner filed a complaint for offences under Sections 323/506 IPC and Section 3(1)(x) of the SC & ST Act against the respondents-accused before learned Illaqa Magistrate on the brief allegations that complainant belongs to chamar caste and respondents-accused belong to Jat caste. She was engaged in preparing/cooking mid day meals in Government Primary School of the village since 2005. Respondents-accused used to play fraud in the purchases and distribution of the items purchased from the financial assistance granted by the Government for the poor children and when the complainant-revision petitioner objected to it, respondents and some other Crl.R.No.1099 of 2010 (O&M) -2- villagers started nurturing ill-will against her. 3. On previous occasion as well respondent no.2 and some other villagers, who belong to same village and to Jat community, had come to the house of the complainant and hurled filthy abuses to her and passed insulting and derogatory remarks in the name of her caste and she had also filed a complaint in this regard. Hence, she was not taken in job and was pressurized to withdraw the proceedings initiated by her against the accused. On 1.4.2008, complainant alongwith her husband had gone to school and however the Headmaster told her that she had already been removed from the service. She was present near the main gate of the school when accused persons reached there and abused her. They used derogatory remarks against her caste by uttering “Tu chamari, tu dedhani iss chamar dedh ko apne saath le kar school mein kya karne gayi thi.” They also told her that they had obtained stay against her. They further remarked that “Tere chamari ddhedani ke hathon se bana khan hamare uchch jaati ke bachche khayenge? On this complainant told the accused that they are from higher caste and hence it is highly inappropriate to address poor people like her belonging to scheduled caste in such a manner. Thereafter accused no.1 gave slap blow on her face and when accused no.2-Umed Singh tried to hit her, her husband caught hold of him and then they grappled with her husband as well. Accused -Bablu @ Anil also stated that they are low caste people and that they should not talk to them and they would throw them out of the village. The occurrence was witnessed by Mahender Sheoran, Kuldeep and some other villagers. 4. In preliminary evidence, the complainant appeared herself as her own witness as CW1 and deposed the same version as given in the complaint. She also examined witnesses Mahender as CW2, Kuldeep as CW3 and Suresh as CW4. Learned Magistrate after considering the evidence adduced by the complainant found prima facie case punishable under Section 3(1)(x) of the SC& ST Act against the respondents-accused and they were summoned to face trial for the said offence. 5. On appearance of the accused, the case was committed to learned Special Judge, Bhiwani. However, learned Special Judge, Bhiwani, vide impugned order remanded the case to learned Magistrate by observing that no prima facie case for offence under Section 3(1)(x) of the SC & ST Crl.R.No.1099 of 2010 (O&M) -3- Act is made out against the respondents-accused and rather the case for offences punishable under Sections 323 and 506 IPC is made out. 6. I have heard learned counsel for the parties and have gone through the whole record carefully, including the impugned order passed by learned Sessions Judge, (Special Judge), Bhiwani. 7. It has been contended by learned counsel for the revision- petitioner that learned Special Judge, Bhiwani, was only to see prima facie case at the time of framing of charge and that charge can be framed even if there are strong suspicion of commission of offences by the accused. It is further contended that hyper technical approach has been adopted by learned Special Judge while passing the impugned order. Further contends that both the parties belong to the same village and that they knew castes of each other. Further contends that this fact has been mentioned even in the heading of the complaint. The respondents-accused abused the complainant on the name of her caste and hence it cannot be said that accused were not aware of the caste of the petitioner-complainant. Further contends that petitioner-complainant used to prepare meal in the Government Primary School, which was not liked by the respondents-accused and hence derogatory remarks were made against her caste in the presence of other villagers at a public place and she and her husband were also assaulted and caused injuries and hence, it is contended that prima facie case for offence under Section 3(1)(x) of the SC & ST Act is made out. 8. On the other hand, it has been argued by learned counsel for the respondents-accused that the occurrence has allegedly taken place on the gate of the school and hence the same cannot be said to be a public place. Further contends that there are no allegations that the respondents-accused had the knowledge that the complainant belongs to scheduled caste and hence learned Special Judge has rightly come to the conclusion that no case for offence under Section 3(1)(x) of the SC & ST Act is made out. 9. Law is well settled that for the purpose of framing of charge, only prima case is to be seen and that charge can be framed if strong suspicion for committing offence is shown against the accused. 10. Law is also well settled that veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously gone into at that stage. On the point authoritative pronouncement of Hon’ble Crl.R.No.1099 of 2010 (O&M) -4- Apex Court in Supdt. and Remembrancer of Legal Affiars, West Bengal v. Anil Kumar Bhunja anothers, 1980 AIR (SC) 52 can be referred, relevant paragraph of which reads as under:- “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” 11. In State of Maharashtra v. Som Nath Thapa, etc. 1996 (2) RCR (Criminal) 480, Hon’ble Apex Court observed as under:- “33. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 12. In State of M.P. v. Sudhir Pingle, 2000(1) RCR (Criminal) Crl.R.No.1099 of 2010 (O&M) -5- 523, it was observed as under: “4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the state of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceedings against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. 1991 (1) RCR (Crl.) 89: 1990 (4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977 (4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. and Crl.R.No.1099 of 2010 (O&M) -6- Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 (4) SCC 274, and held thus:” “From the above discussion it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” 13. In another judgment of Hon’ble Apex court in Sanghi Brothers (Indore) Pvt.Ltd., v. Sanjay Chaudhary and ors. 2008 (4) RCR (Criminal) 640, on the question of framing of charge, the Hon’ble Apex Court observed as under: “11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.” 14. Hence, in view of the aforementioned authoritative pronouncements of Hon’ble Apex Court, learned trial court is only to see prima facie case at the time of framing of charge and even if the Court thinks that the accused might have committed the offence, it can frame the charge though for conviction the conclusion is required to be that the accused has committed the offence and probative value of the material of the record cannot be gone into and that the material brought on the record by the prosecution has to be accepted as truth at that stage. 15. Though case was committed to learned Special Judge by Crl.R.No.1099 of 2010 (O&M) -7- learned Magistrate, after summoning the accused and after coming to the conclusion that prima facie case for offence punishable under Section 3(1) (x) of the SC&ST Act is made out against the respondents-accused and, however, learned Special Judge came to the conclusion that prima facie no case for offence punishable under Section 3(1)(x) of the SC&ST Act is made out against the accused, merely on the plea that from the perusal of the complaint and statements of witnesses, it has not been proved that accused were aware of her caste and that is why they intentionally insulted or intimidated or humiliated her. 16. However, the very perusal of the complaint shows that even in the heading of the complaint it has been mentioned that she belongs to Chamar caste and it has been mentioned that respondents belong to Jat caste. She has taken a specific plea that on earlier occasion as well respondents-accused used derogatory remarks against her caste and that she already filed a complaint against them and in order to pressurize her to withdraw the said complaint, she was removed from the job of the school, as she used to prepare meal for the children in Government Primary School by the grant given by the Government. She has further specifically deposed that all the accused abused her in the name of her caste. Specific words have been attributed to respondents-accused. The accused even remarked that they are Jats by caste and that the children of higher caste would not take meals prepared by her. 17. The occurrence had taken place near the gate of the school and hence, it cannot be said that the same was not a public place or the same was not in a public view. Occurrence was witnessed by some other villagers who also appeared and deposed before learned Magistrate corroborating the version of the complainant. 18. Hon'ble Apex Court in Swarn Singh and others v. State through Standing counsel & another 2008(4) RCR (Crl.) 74, observed that calling a member of the scheduled caste `chamar' with intent to insult or humiliate him even inside a building but in the presence of some members of public, would be an offence, since it is in the public view. Learned Apex Court observed as under:- “24. In our opinion, calling a member of the Scheduled Caste `Chamar' with intent to insult or humiliate him in a place Crl.R.No.1099 of 2010 (O&M) -8- within public view is certainly an offence under Section 3(1) (x) of the Act. Whether there was intent to insult or humiliate by using the word `Chamar' will of course depend on the context in which it was used.” 19. Hence, in view of these facts, learned Special Judge, Bhiwani, committed illegality and material irregularity in coming to the conclusion that no case for offence under Section 3(1)(x) of the SC & ST Act is made out against the respondents-accused and hence, the impugned order cannot be sustained in the eyes of law. 20. Hence, as a sequel to my above discussion, the present revision petition is allowed and the impugned order passed by learned Special Judge, Bhiwani, is set aside and he is directed to proceed further in the case, as per law. 21. However, it is made clear that nothing observed in this order shall be construed as an expression of opinion of this Court on decision of this case on merit. 30.9.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.