Suraj Mandal vs State of Jharkhand

D.K. Sinha, J.—The petitioner has preferred this Cr. Revision against the order impugned dated 3.5.2006 passed by Shri. S.K. Singh, 1st Additional Sessions Judge-cum-Special Judge, S.C. & S.T. (Prevention of Atrocities) Act, Deoghar in Special Case No. 4/05 arising out of Sarwan P.S. Case No. 55/04 whereby and whereunder the discharge petition filed by the petitioner u/s 227 of the Criminal Procedure Code was dismissed for the alleged offence under Sections 147/148/149/323/307/379/353/341/448/427/504, IPC as also u/s 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act and Section 136(2) of Representation of People Act.

The brief fact of the case as it stands narrated in the written report of the informant Avirath Chand Mandal presented before the Officer-in-Charge, Sarwan was that he was the Head Master in the Middle School. Pindrahat. During parliamentary election in the year 2004 he was deputed at the Booth No. 170 within Jarmundi Assembly Constituency at Primary School Beltekari as Presiding Officer on 26.4.2004. After polling was over on 26.4.2004 and he was sealing the E.V.M. Control Unit and other relevant documents at about 5.30 p.m. in the meantime, the petitioner Suraj Mandal, a candidate for J.D. (United) with his bodyguard and party agent namely Suresh Mandal and Rohit Mandal and two unknown persons entered into the polling booth, terrorized the informant and provo-cated the other to assault him. It is alleged that the petitioner Suraj Mandal after holding his collar started assaulting him with the fists and kicks and the other accused persons also assaulted him. His bodyguard pointed his sten-gun on his chest extending threat that he would commit his murder. It is alleged that the bodyguard assaulted him with the stengun as a result of which he fell down. When the witnesses rushed to rescue him, they were also assaulted by the petitioner Suraj Mandal and his associates and abused Arjun Das a member of the Polling Party calling him "Chamar'' and also humiliated him by abusing the entire Chamar'' caste men. Lakhi Ram Hembram another member of the Polling Party was also abused by calling him ''Adavas''. It was further alleged that the bodyguard removed a sum of Rs. 1050/- from the pocket of the informant. It is specifically alleged that the petitioner Suraj Mandal broke the E.V.M. Unit by throwing it on the earth and destroyed all the documents related to the election. On hearing alarm the villagers assembled there and rescued the informant and other Members of the Polling Party. The miscreants also set a motorcycle on fire. On the written report of the informant. Sarwan P.S. Case No. 55/04 was registered and after investigation the police submitted final form on 16.5.2005 only against 3 accused persons namely Suraj Mandal (Petitioner), Rohit Mandal and Suresh Mandal for the offence under Sections 147/148/149/323/307/379/353/448/427 and 504, IPC, u/s 3(X) of S.C. & S.T. (Prevention of Atrocities) Act and Section 136(2) of Representation of People Act.

The petitioner had earlier moved before this Court for quashing the entire criminal proceeding against him in Cr MP No. 728/05 which was dismissed as withdrawn with (he liberty to raise all the grounds before the Court below u/s 227 of the Code of Criminal Procedure and by the order impugned dated 3.5.06 the petitioner was discharged only for the offence u/s 379, IPC but not in other offences.

Mr. Bimal Kumar learned Counsel appearing for the petitioner submitted that a separate case vide Sarwan P.S. Case No. 57/04 was instituted against different set of accused persons for the same and similar cause of action as against the same alleged incident, but in spite of the alleged incident poll was not cancelled which goes to show that no such occurrence as alleged took place on the alleged date and place of occurrence and therefore, the petitioner has been falsely implicated on account of political vengeance. The case was instituted under Sections 147, 148 and 149, IPC but the charge-sheet was submitted only against 3 persons including the petitioner. The learned Counsel emphatically submitted that for constituting offence under those sections there must be unlawful assembly of 5 and more persons as envisaged u/s 141 of the IPC. Therefore, the charge under above section is not maintainable.

Learned Counsel further pointed out that the Court below failed to appreciate that the alleged offence u/s 307 was specific against the official bodyguard of the petitioner who has not been sent up for trial after investigation and in absence of the basic ingredients to constitute an offence u/s 307, IPC as no single shot was fired from the stengun. The allegation of assault to the informant can be disbelieved on the fact that no injury had been found on the persons of the informant. Moreover, the bodyguard was given pistol and cartridges for the safety of the life of the petitioner by police and neither provocation nor command of any kind was made by the petitioner to the bodyguard to assault the informant.

Learned Counsel pointed out that the Court below failed to appreciate that in the narrated circumstances no offence u/s 136(2) of the Representation of People is made out against the petitioner for I he reason that Section 58(1) of the Act lays down condition as to when re-polling is necessary, wherein breaking of E.V.M. is one of the grounds and in absence of any such order for re-polling at the concerned booth as also in absence of any seizure list of the broken E.V.M. to substantiate the allegation in the FIR there cannot be a basis to proceed against the petitioner for the offence u/s 136(2) of the Representation of People Act. The Court below failed to appreciate this aspect of law. There was neither seizure of the alleged broken E.V.M. or the seizure of the destroyed (Torn) polling documents and therefore, there was no material at all on the record to substantiate such allegation. Similarly no offence u/s 353 of the Indian Penal Code is made out against the petitioner for want of any injury report of the injured persons on the face of the allegation that the petitioner was assaulted by more than five persons as also with the body of stengun.

Learned Counsel attracted the attention towards two separate cases i.e. Sarwan P.S. Case No. 55/04 in which the petitioner has been implicated with two other accused and another Sarwan P.S. Case No. 57/04 against different set of accused persons for the same, and similar cause of action which renders the entire" prosecution case unsustainable because there cannot be to different FIR and two different set of trial against two different sets of persons for the alleged single occurrence.

Finally, the learned Counsel submitted that the allegation for the offence u/s 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act has been inserted in the present case intentionally without any attribution of the petitioner therein. However, if at all the allegation under the said offence is admitted for the argument sake the occurrence did not take place in the public view which is an essential element to constitute offence u/s 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act. Moreover, the Court below failed to appreciate that the S.C. & S.T. (Prevention of Atrocities) Act, having been enacted to restrain atrocities upon the Members of S.C. & S.T. being special enactment, cannot be invoked at the behest of a third party (informant) who was not a Member of either Scheduled Castes or Scheduled Tribes to which an aggrieved person has fonts to lodge a complaint regarding his grievance. Similarly there is no material to infer that the Members of the Polling Party including the Presiding Officer were wrongfully restrained so as to attract an offence u/s 341, IPC. The learned Counsel, therefore, submitted that the order impugned is perverse, illegal, drawn without application of judicial mind in mechanical manner which is liable to be set-aside/modified.

Having regard to the facts and circumstances of the case, argument on behalf of the petitioner as well as materials on record I find that by the order impugned the Special Judge-cum1st Additional Sessions Judge. Deoghar by the order impugned excluded the petitioner from the charge u/s 379, IPC, however, he found prima facie materials to proceed against him for the offence under Sections 147/148/149/323/307/353/341/448/427/504, IPC, Section 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and also u/s 136(2) of the Representation of People Act, 1951.

Learned Counsel for the petitioner consistently argued that though the FIR was instituted against 4 named and two unknown persons but after investigation the police submitted charge-sheet only against 3 accused including the petitioner and therefore, offence under Sections 147, 148, 149, IPC are not attracted. To form an unlawful assembly u/s 141 of the Indian Penal Code, the minimum requirement is assembly of 5 or more persons with certain common object. Though in the present case there are certain specific attribution against the bodyguard of the petitioner but he has not been sent up for trial in the chargesheet. I. therefore, find substance in the argument that in the present case 3 persons who have been charge-sheeted after investigation cannot form unlawful assembly to commit an offence in prosecution of common object and therefore I find substance that no offence is made out under Sections 147, 148 and 149, IPC against the petitioner and others.

Similarly, from the plain reading of the written report it is alleged that it was the bodyguard of the petitioner who had intimidated the informant by pointing his stengun on the chest of the informant and threatened to shoot him. It is subsequently alleged that the informant was assaulted with the Stengun as a result of which the informant fell down. No single shot was fired from the stengun. However, by annexing Annexure-7 with the Second Supplementary Affidavit on behalf of the petitioner it has been shown that the Constable No. 355 Shashi Bhusan Pandit was commanded and assigned the duty of bodyguard of the petitioner Suraj Mandal by the order dated 11.12.03 and he was given a pistol with 35 cartridges. He performed his duty as bodyguard from 12.12.03 upto 8.6.04 and the alleged date of occurrence was 26.4.04. Therefore, it can well be inferred on the basis of the command certificate No. 134695 issued by Godda Police that at the relevant time of occurrence he was in possession of a pistol and not any stengun. Even if it is assumed that the informant was assaulted with the stengun, there was no injury report of the nature to cause his death. In absence of any injury report of the informant or the criminal intention of the petitioner or the coaccused of the kind to commit murder of the informant or any member of polling party no offence u/s 307, IPC is made out. I, therefore, find that no offence u/s 307, IPC under the facts and circumstances prima facie is attracted against the petitioner.

As regards, the final form submitted against the petitioner and two others u/s 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act is concerned, learned Counsel vehemently argued that the allegation is vague and in absence of any intention/motive attributed to the petitioner and in absence of public view at the Polling Booth does not constitute the offence, as because, if the prosecution case is admitted to be true, on the face of the written report, there was no public at the relevant time of occurrence, I inter and find from the circumstances that though the informant was not the Member of Scheduled Castes or Scheduled Tribes but his two colleagues being the Member of the Polling Party were abused and humiliated by calling bad names to their castes who were the Members of the Scheduled Castes and Scheduled Tribes. There were many other persons at polling booth including the in formant who were not the Members of either S.C. or S.T. I therefore, find that prima facie offence u/s 3(X) of the S.C. & S.T. (Prevention of Atrocities) Act is made out. I further find from the circumstances that E.V.M. used in polling was broken by throwing it on the ground the offence u/s 136(2) of the Representation of People Act. 1951 prima facie is attracted besides the offence under Sections 323, 353, 448, 427 and 504, IPC.

In the circumstances, the order impugned passed by the Special Judge-cum-1st Additional Sessions Judge, Deoghar in Special Case No. 4/05 of 3.5.05 is set-aside with the direction to pass an order on the petition of the petitioner u/s 227, Cr PC afresh in accordance with law. This petition is allowed with the aforesaid observation.