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HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No.2382/2011
Sanad Lodhi………………………………………………………….Petitioner
Versus
Summabai and another……………………………………….Respondents
For the petitioner : Mr. Sushil Kumar Sharma, Advocate.
For the respondent : None.
no.1
For the respondent : Mr. D. K. Paroha, Government Advocate.
no.2
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Present: HON’BLE SHRI JUSTICE ATUL SREEDHARAN
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ORDER
(1.3.2018)
The present petition has been filed by the petitioner
herein aggrieved by the order dated 30.8.2010 passed by the
Court of the learned Chief Judicial Magistrate, Mandla,
registering a complaint case against the petitioner herein after
taking cognizance of offences under sections 294 and 354 IPC
and section 3(1)(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred
to as “the Act”). Hence, this petition has been filed for quashing
the registration of the complaint case.
2. The respondent no.1/complainant was issued notice earlier in the
year 2011 itself. However, she did not register appearance through
counsel or in personal capacity. However, by way of abundant
caution, because the respondent no.1/complainant is a lady from
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the depressed classes of the society, notice was once again issued
to her by this court on 25.1.2018 and the office report of 10.2.2018
reflects that the notice was served on the respondent
no.1/complainant. Today also, no one appears on behalf of the
respondent no.1/complainant.
3. The facts leading to the present petition relate to an incident which
had taken place on 15.2.2007. As per the complaint case, the
respondent no.1/complainant and her children, while passing
through a dolomite mine, were confronted by the petitioner herein
who allegedly offered money to the respondent no.1/complainant
to have a relationship with him and when she refused, he is stated
to have thrown her on the ground and inappropriately touched her
breasts and upon her shouting for help, two witnesses, Munnalal
and Mewalal, came to the scene of occurrence and saw the
respondent no.1/complainant being touched inappropriately by the
petitioner herein and that she had suffered injuries to her wrist on
account of her bangles breaking in the scuffle. The police complaint
that was given by the respondent no.1/complainant was registered
only under section 324 IPC as, according to the police, no
allegation was made by the complainant/respondent no.1, of the
petitioner having touched her anywhere on the body
inappropriately. In her complaint to the police dated 15.2.2007 she
is stated to have said that the petitioner herein grappled with her
and threw her on the ground on account of which she suffered the
wrist injuries. She is also stated to have got her medical
examination done and the doctor has opined about the abrasion
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injuries on her wrist being within 12 to 14 hours before the medical
examination.
4. The respondent no.1/complainant in her complaint has stated that
the police did not faithfully record her FIR on 15.2.2007 and a copy
of the report itself was given to her belatedly on 24.2.2007 upon
which she came to know that her complaint was watered down and
the graver offence under section 354 IPC was not included. Two
months thereafter the complainant has filed the present complaint
case. In para 2 of the complaint case, she has levelled allegations
against the police that they did not faithfully reproduce her
complaint given on 15.2.2007 and that they had registered it only
under section 324 IPC whereas it should have been registered for
the graver offence under section 354 IPC and also the relevant
provisions of the SC/ST Act. It is relevant to mention here that in
the complaint filed by the respondent no.1/ complainant, there is
no specific averment to the effect that the accused/petitioner
herein does not belong to the SC/ST community and that he knows
that the victim (respondent no.1/complainant) is from the SC/ST
community. The relevance of this shall be discussed later.
5. Learned counsel for the petitioner has drawn the attention of this
court to Annexure A4 at page 13, which is the report of the police,
which was called for by the learned court below by way of an
enquiry. The police report is dated 23.4.2007. In the report, the
police has observed that the petitioner herein had confronted the
respondent no.1/complainant on the way and entered into a scuffle
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with her and pushed her on account of which she fell on the
ground and suffered injuries on her wrist. It further states that she
was medically examined and the doctor had opined that the
injuries suffered by her are caused by a sharp and hard object.
Therefore, only the offence under section 324 IPC was registered.
In that case, the charge-sheet was filed against the petitioner
herein on 26.2.2007 itself.
6. Learned counsel for the petitioner has submitted that the police
report clearly reveals that the subsequent complaint case has been
filed by the respondent no.1/complainant only to harass the
petitioner herein.
7. Learned counsel for the State, who is the respondent no.2 in this
case, on the other hand, while opposing the petition has drawn the
attention of this court to the complaint which is Annexure A2 from
pages 8 to 9 and has stated that the respondent no.1/complainant
has levelled clear-cut allegations against the petitioner herein of
having committed the offence under section 354 IPC also.
Thereafter, the learned counsel for the State has drawn the
attention of this court to the statements of the witnesses in the
complaint case where the respondent no.1/complainant herself has
been examined as complaint witness no.1 and the witnesses
Mewalal and Kummu have been examined as complainant-witness
nos.2 and 3 at the stage of proceedings under sections 200 and
202 Cr.P.C before the learned trial court.
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8. Learned counsel for the State has submitted that these statements
clearly go to show the commission of an offence under section 354
IPC and under the provisions of the SC/ST Act. He has further
stated that, at this stage, all that this court has to see is whether a
prima facie case is made out against the petitioner herein and if
the same is made out, no interference would be called for in the
exercise of power under section 482 Cr.P.C. by this court. Per
contra, learned counsel for the petitioner has drawn the attention
of this court to Annexure A3 from pages 10 to 12, which is the
order-dated 16.7.2009 passed in Criminal Case No.769/2007 by the
Court of the learned Chief Judicial Magistrate, Mandla, whereby the
petitioner herein was acquitted in the police case registered against
him on the basis of the complaint preferred by the respondent
no.1/complainant relating to the same incident on 15.2.2007.
9. Heard the learned counsel for the parties and perused the
documents filed in the case.
10. The undisputed facts in this case are that the incident relates to
15.2.2007. However, there are two versions to that incident. As per
the police, the version given to them by the respondent no.1/
complainant herself was that there was an altercation and a scuffle
between the petitioner herein and the respondent no.1/
complainant after which the petitioner herein is alleged to have
pushed her on the ground and upon falling, she suffered certain
injuries. However, in the version of the respondent
no.1/complainant in the complaint case, goes two steps beyond it
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where she has stated that the petitioner herein has touched her
inappropriately on her body and also abused her using caste based
words. As stated hereinabove, there are two witnesses who have
supported this allegation before the learned trial court in the
complaint case in their statements under sections 200 and 202
Cr.P.C. The questions posed by the facts of this case before this
court are (a) if the petitioner herein is entitled to the protection of
section 300 Cr.P.C. that he shall not be tried for the same offence
twice, and (b) whether the offences under the Special Act are at all
made out against the petitioner herein.
11. The police report, which was called for by the learned trial court
before issuing process to the petitioner herein, clearly goes to
reveal that in the complaint given to them by the respondent no.1/
complainant there were no allegations which would constitute an
offence under section 354 IPC or under the provisions of the Act.
Thereafter, the learned trial court which tried the petitioner herein
for the offence under section 324 IPC has acquitted the petitioner
herein. The respondent no.1/complainant was a witness in that
case and she has reiterated not only the allegation relating to the
offence under section 324 IPC but also those allegations which
would have constituted the offences under section 354 IPC and
under the provisions of the SC/ST Act. The witnesses in the
complaint case also testified as witnesses before the learned trial
court. The learned trial court has given cogent reasons for
disbelieving the respondent no.1/complainant and the witnesses
with regard to the incident. The learned trial court has also
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observed that the respondent no.1/complainant has given an
exaggerated version of the incident and has also come to the
finding that the witnesses arrived at the scene of occurrence after
the incident as they stated so in their cross-examinations.
Thereafter, the petitioner herein was acquitted as the charge under
section 324 IPC stood not proved against him. The question that
arises here is as the trial in the police case was restricted only for
the offence under section 324 IPC, would the petitioner herein get
the benefit of section 300 Cr.P.C. even though the trial in the police
case was not for the offence under section 354 IPC and for the
offences under the Special Act.
12. In the considered opinion of this court, the petitioner herein would
be entitled to the protection under section 300 Cr.P.C. even though
he was not charged for the offence under section 354 IPC and the
offence under the Act but as the entire gamut of facts examined by
the Ld. Trial Court, pertain to the offence under section 354 of IPC
and the provisions under the SC/ST Act. The fact remains that the
allegations relating to the offences under section 354 IPC and the
SC/ST Act were also appreciated by the learned trial court while
passing the order of acquittal on 16.7.2009. That order has become
final and has never been challenged in appeal either by the State
or by the respondent no.1/complainant, as so stated by the learned
counsel for the petitioner. Learned counsel for the State is unable
to refute the same on account of lack of information whether any
such appeal was preferred by the State or the respondent no.1/
complainant.
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13. As regards the allegations under the provisions of the SC/ST Act,
Hon’ble the Supreme Court in Gorige pentaiah Vs. State of
Andhra Pradesh (2008) 12 SCC 531 has held that in a
complaint case relating to offences under the Special Act, it is
absolutely imperative that specific allegation be levelled against the
accused that the accused did not belong to the SC/ST community
and that the abuses were hurled by the petitioner in order to
humiliate, insult or intimidate the respondent. Upon examining the
complaint in this case, there are no allegations as stated
hereinabove earlier specifying that the petitioner herein is not a
member of the SC/ST community and that the actions attributable
to him was done with the intent to intimidate or humiliate the
respondent no.1/ complainant.
14. Under the circumstances, the petition is allowed and further
proceedings in Criminal Case No.1571/2010 pending in the Court of
the learned Chief Judicial Magistrate, Mandla, are quashed.
(Atul Sreedharan)
Judge
ps
Digitally signed by
PRASHANT SHRIVASTAVA
Date: 2018.03.05 10:57:36
+05’30’