Criminal Miscellaneous No.28603 OF 1999 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. -------- 1.DINESH BHAGAT @ DINESH BHAKT son of Mahendra Bhagat, resident of village-Basra Kazi, P.S.-Saraiya, Dist.-Muzaffarpur(O.P.Jaitpur). 2..Prabhu Dayal Thakur son of late Bhagirath Thakur, Resident of village-Malang Chowk, Mauza, P.S.-Sraiya, Dist-Muzaffapur (O.P.Jaitpur) …… ……Petitioners Versus 1.STATE OF BIHAR 2.Mukhlal Rai son of late Hira Rai, Sakin-Jarang, P.S.-Vaishali, Dist.-Vaishali, at present village-Basra Kazi Tola Jagria Chowk, P.S.-Saraiya (O.P.Jaitpur), Dist-Muzaffarpur …… ……Opposite Parties -------- For the petitioners: Mr.Vindhya Keshari Kumar, Sr.Adv. & Mr.Radhey Shyam Kumar. For the State: Mr.Yogendra Kumar Singh, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. Two petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 9.9.1999 passed by Md.Azaduddin, Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No.892 of 1999 (Tr. No.759 of 1999). By the said order the learned Magistrate took cognizance for the offences under sections 342, 323 and 379 of the Indian Penal Code and section 3(x) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. 2. Short fact of the case is that opposite party no.2 filed a complaint case vide Complaint Case No.892 of 1999 alleging therein that on the date of occurrence, while he was returning after selling tobacco (Khaini) through bicycle on way he was intercepted by the petitioners and thereafter the accused 2 persons demanded tobacco from the complainant. The complainant said that since there were already due of rupees one hundred, it would be difficult to comply with their direction, whereupon, it was alleged in the complaint petition, the accused persons abused the complainant. The accused persons said “Sala Chamar Muh Lagakar Bolta Hay ……Sala Chamar Ka Man Bahut Barh Gaya Hai.” Thereafter, all the accused persons started assaulting the complainant and during the said occurrence the accused persons forcibly took Rs.200/- from the upper pocket of the complainant‟s shirt. On the said allegation the complaint petition was filed. After filing of the complaint petition, the complainant was examined on solemn affirmation and in support of his case two witnesses were examined. Thereafter, by the impugned order the learned Magistrate took cognizance for the offences as mentioned above. 3. Mr.Vindhya Keshari Kumar, learned senior counsel appearing on behalf of the petitioners has confined his argument only to the extent that in the case no offence under the provisions of SC/ST Act is made out. While relying on a judgment of the Hon‟ble Supreme Court reported in 2009(1) Cri. L.J.350 (Gorige Pentaiah Vs. State of A.P. & Ors.), he argued that merely by naming as scheduled caste it will not constitute an offence under section 3(x) of the SC/ST Act. He has referred to paragraphs 9 and 35 of the judgment. I cannot do much better than to quote the same in the following way. “9. In the instant case, the allegation of respondent no.3 in the entire complaint is that on 27.5.2004, the 3 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 have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent no.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 accused- appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent no.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.” “35.In our considered opinion, filing of such a frivolous complaint in the instant case is a total abuse of process of law. Consequently, we set aside the impugned judgment passed by the High Court and quash the complaint emanating from Crime No.281 of 2004, Police Station, Uppal, Hyderabad.” 4. Sri Kumar, learned Senior Counsel, further submits that for application of section 3(x) of the SC/ST Act, it is necessary to establish that the person against whom there is allegation for abusing should not be a member of SC/ST and only then one can be prosecuted under the said provision. Sri Kumar submits that in the entire complaint petition it has not been disclosed that the petitioners were not members of the Scheduled Caste/Scheduled Tribe and, as such, the order of cognizance is 4 liable to be set aside. 5. Learned counsel for the petitioners further argued that for application of penal provision under the SC/ST Act it must be established that in public view he was abused by the accused persons. 6. On perusal of the materials available on record, it is evident that four persons had seen the occurrence and two witnesses had come forward in support of the complainant and stated that they have seen the occurrence. If occurrence is seen by atleast one or more than one person, it cannot be said that occurrence was not committed within the public view and, as such, the submission of the learned counsel for the petitioners on this point, in my view, is misconceived. 7. The judgment on which learned counsel for the petitioners has relied upon was delivered in the facts and circumstances of the said case. In the said case the allegation was that the complainant was abused by naming his caste. So far as present case is concerned there is specific assertion that on public road the accused persons abused not only with his name of his caste but he was abused which has been quoted above. So far as question of non-disclosure of caste of the accused persons in the complaint petition is concerned, I am of the view that same has got no relevance in the present case. It is not a case of the petitioners that they are members of Scheduled Caste/Scheduled Tribe. It was alleged by the complainant that the accused persons had abused him with the name of his caste besides they used abusive words. Besides allegation of commission of offence under the SC/ST Act, 5 there is other specific allegation of commission of offence by the complainant such as illegally obstructing the complainant while he was returning from the market by the accused persons, abusive language used by the accused persons, assault of the complainant and also allegation of forcibly taking away money from the pocket of the complainant. 8. In view of specific assertion made in the complaint petition, besides other evidences which were brought on record by the complainant by way of examining witnesses, I am of the view that prima facie case was made out regarding commission of offence as alleged in the complaint petition. Moreover, the petitioner has approached this court under section 482 of the Code of Criminal Procedure with a prayer to quash the order of cognizance which has been passed at the very initial stage of the case. Repeatedly it has been held that at the initial stage or at interlocutory stages the Superior Courts should refrain from interfering in a criminal case. In the case of G.N.Hedgre Vs. S.Bangarappa reported in 1995(3) Cri. L.J. 2935, the Hon‟ble Supreme Court has used the word that “despite admonition given by this court the superior courts are interfering at the initial stage or at interlocutory stage of criminal cases.” The Hon‟ble Supreme Court has restrained the superior courts from interfering at the initial stage or at interlocutory stage of the case. Besides at the stage of charge only requirement is to see as to whether prima facie case is made out or not. The word „prima facie‟ was examined in detail in a case reported in 1996(3) Cri.L.J. 2448 (State of Maharashtra Vs. Som Nath Thapa) in paragraph 30. It 6 would be appropriate to quote the same paragraph which is as follows: “30. In Antulay‟s case, (AIR 1986 SC 2045), Bhagwati, C.J., opined, after noting the difference in the language of the three parts of section, what despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “ prima facie” case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing the offence”. 9. In view of ratio laid down by the Supreme court in 1996(3) Cri.L.J.2448 (supra) for the purpose of taking cognizance test is to be applied as to whether prima facie case is made out or not and the word „prima facie‟ means, if there is material on record to suggest even strongest suspicion regarding commission of offence it would be sufficient to proceed in the case. 10. In view of the facts and circumstances of the case as mentioned hereinabove, I am of the view that while taking cognizance the learned Magistrate has committed no error, nor the petitioners have made out an exceptional case warranting this court to exercise inherent power under section 482 of the Code of 7 Criminal Procedure. Accordingly, I refrain from interfering with the order impugned. Accordingly the petition stands rejected. 11. In this case by order dated 17.2.2000 while issuing notice to opposite party no.2 this court had directed that in the meantime, no coercive action shall be taken against the petitioners in Complaint Case No.892 of 1999 pending before Judicial Magistrate, 1st Class, Muzaffarpur. Subsequently, on 12.12.2000 the case was admitted and this court directed that in the meantime further proceeding in connection with complaint case no.892 of 1999 pending in the Special Court shall remain stayed. 12. In view of rejection of the present petition, the interim order of stay stands automatically vacated. 13. Let a copy of this order be sent to the court below forthwith. Patna High Court The 27th April,2010 NAFR/Md.S. (Rakesh Kumar,J.)