Kapil Kumar Choubey & Anr. vs The State Of Jharkhand & Anr.

By the Court:- Heard the parties.

Though notice has validly been served upon the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash the order dated 19.05.2017 passed by the learned Judicial Magistrate-1^st Clas, Bermo at Tenughat in connection with C.P. Case No.153 of 2017 whereby and whereunder the learned Magistrate has found prima facie case for the offences punishable under Sections 353 and 323 of the Indian Penal Code and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The allegation against the petitioners is that the petitioner No.2 is the Mukhiya of Kasmar Panchayat and she has removed the complaint box kept by JHALSA in the Panchayat Office. The complainant who is a para-legal volunteer, came to know about the same on 24.10.2016 and he saw that the legal aid board has also been removed and a new lock has been put. When the complainant went to the residence of the Mukhiya and asked about the lock being changed; then the petitioner No.1 who is the husband of the petitioner No.2, became enraged and abused the complainant and used the words about the caste and stated that since he is a Brahman, how he will allow a person of lower caste being ‘Dhobi’ (Washerman) to sit in the office and also threatened to implicate the complainant in a false case.

On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Magistrate has found prima facie case for the offence punishable under Sections 353 and 323 of the Indian Penal Code and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Learned counsel for the petitioners submits that in the absence of any allegation of causing any bodily pain, decease on infirmity to the complainant by either of the two petitioners, the offence punishable under Section 323 of the Indian Penal Code is not made out against the petitioners and in the absence of any allegation of assault or use of criminal force to any public servant from discharging his duty, the offence punishable under Section 353 of the Indian Penal Code is not made out against the petitioners.

It is next submitted that a Magistrate is not empowered to take cognizance under the penal provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in view of constitution of the Special Court under the penal provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act being the court of Additional Sessions Judge-I of all the districts to be the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act vide Notification dated 02.03.2012 of the Government of Jharkhand in the Department of Personnel, Administrative Reforms and Rajbhasha vide Memo No.6/Stha.Pad.-01/2010 Ka.2083/Ranchi dated 02.03.2012.

Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Gunjan @ Girija Kumari & Others vs. State (NCT of Delhi) & Another reported in 2026 SCC OnLine SC 834 and submits that therein it has been held that in order to constitute the offence punishable under Section 3 (1) (r) and 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the principal requirement amongst the other ingredients are that the occurrence must have happened “in a place within public view.” It is further submitted that admittedly, the occurrence took place in the house of the petitioners. There is no material in the record to suggest that the occurrence took place in a place within the public view and in the absence of this essential ingredient to constitute the offence punishable under Section 3 (1) (r) and 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not made out. Hence, it is submitted that the prayer, as prayed for by the petitioners in this Cr.M.P., be allowed.

Learned Addl. P. P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in the instant Cr.M.P. and submits that if the allegations made against the petitioners are considered to be true in their entirety, then all the offences in respect of which prima facie case has been found by the learned Magistrate, is in fact, made out against the petitioners. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in order to constitute the offence punishable under Section 323 of the Indian Penal Code, the essential ingredients are:-

Now, coming to the facts of the case; there is absolutely no allegation against either of the petitioners of causing bodily pain, disease or infirmity to anyone and in the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioners to be true in their entirety still the offence punishable under Section 323 of the Indian Penal Code is not made out against the petitioners.

So far as the offence punishable under Section 353 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are:-

So, the essential ingredient is that the victim must be a public servant. Now, in this case, there is absolutely no material in the record to suggest that any public servant has been put to any inconvenience by the petitioners and in the absence of any such allegation, this Court is of the considered view that even if the entire allegations made against the petitioners to be true in their entirety still the offence punishable under Section 353 of the Indian Penal Code is not made out against the petitioners.

So far as the offence punishable under Section 3 (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned, the learned Magistrate after constitution of the special court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act committed an irregularity albeit a curable one by taking cognizance of the offences punishable under the penal provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Moreover the learned Magistrate ought to have specified as to under which sub-section of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the offence is made out. Having not done so, it appears that there is non-application of mind by the learned Magistrate. From the allegations made in the complaint, statement on solemn affirmation of the complainant; it could be gathered that the complainant has apparently been aggrieved by being intentionally insulted and intimidated with intent to humiliate him as a member of Schedule Caste and he being a member of Schedule Caste, being abused by the petitioners for which the offences punishable under Section 3 (1) (r) and 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act could be made out but for constituting either of the said offences, the additional requirement is that the alleged occurrence must have taken place in a place within public view.

Now, coming to the facts of the case; admittedly the alleged occurrence took place in the house of the petitioners. There is no whisper nor any corollary can be drawn that the occurrence which took place in the house of the petitioners, without any other person except the petitioners and the complainant being present there, will satisfy the essential requirement that the alleged occurrence took place, in a place within the public view. In the absence of this essential ingredient to constitute the offences punishable under Section 3 (1) (r) and 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 3 (1) (r) or 3 (1)

of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not made out against the petitioners.

In view of the discussions made above, as none of the offences in respect of which learned Magistrate has found prima facie case is in fact being made out even if the entire allegations made against them are considered to be true in their entirety, therefore, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law, hence, this is a fit case where the order dated 19.05.2017 passed by the learned Judicial Magistrate-1^st Clas, Bermo at Tenughat in connection with C.P. Case No.153 of 2017, be quashed and set aside qua the petitioners named above.

Accordingly, the order dated 19.05.2017 passed by the learned Judicial Magistrate-1^st Clas, Bermo at Tenughat in connection with C.P. Case No.153 of 2017, is quashed and set aside qua the petitioners named above.

In the result, this Cr.M.P. stands allowed.