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Sanad Lodhi vs Summabai on 1 March, 2018

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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

****
Present: HON’BLE SHRI JUSTICE ATUL SREEDHARAN
****

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’

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