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Mallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of … on 29 April, 2010

Madras High Court
Mallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of … on 29 April, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 29/04/2010

CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH

Crl.O.P(MD)No.1348 of 2010
AND
M.P(MD)No.1 of 2010
and
M.P(MD)No.3 of 2010

1.Mallaiah @ Muthu Mallaiah
2.Selvam
3.Suyambu @ Suyambudurai
4.Murugesan					... Petitioners/
						     A.1 to A.4		


Vs

1.The Deputy Superintendent of Police,
  Thoothukudi Rural Sub Division,
  Thoothukudi District.		                ... 1st Respondent/
						    Complainant
2.Stella					... 2nd Respondent/
						    Defacto complainant

(R2 impleaded as per the orders of this Court made in M.P(MD)No.2 of 2010 in
Crl.O.P(MD)No.1348 of 2010 vide orders dated 23.02.2010)


Prayer

Petition under Section 482 of the Code of Criminal Procedure, to call
for the entire records in P.R.C.No.10 of 2009 pending on the file of the learned
Judicial Magistrate No.II, Thoothukudi and quash the penal provisions of the
SC/ST Act alone.

!For Petitioners ... Mr.C.Christopher
^For Respondents ... Mr.P.Rajendran,
		     Govt.Advocate (Crl.Side) for R1
		     Mr.B.Pugalendhi for R2
* * * * *

:ORDER

The petitioners, who are A.1 to A.4 for the alleged offences under
Sections 365, 302 and 201 I.P.C read with Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, seek to quash
the proceedings in P.R.C.No.10 of 2009 pending on the file of the learned
Judicial Magistrate No.II, Thoothukudi, insofar as the offence punishable under
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is concerned.

2. The second respondent/defacto complainant gave a complaint stating that
her deceased husband was having illicit relationship with one Pushpavalli. In
view of the objections made by her, the defacto complainant’s husband had
stopped going to the house of the said Pushpavalli. Since the deceased had
stopped going to the house of Pushpavalli, all the accused have abducted the
deceased.

3. A further statement was given by the second respondent/defacto
complainant stating that when the petitioners 1 and 2 were walking in the
street, they shouted at the deceased who was following them and the second
petitioner stated that why the deceased was following him which was replied by
the deceased stating that it is none of botheration of the second petitioner.
Thereafter, the second petitioner has replied stating that the deceased has no
business to say that the second petitioner should not enter into the street and
move with one Jayanthi. After making such statement, the deceased was attacked
and taken in a tri-cycle by all the accused. The other witnesses have also
given the same version to the effect that the deceased questioned the
relationship of the said Jayanthi with the second petitioner which has resulted
in the alleged occurrence.

4. It has been further stated that thereafter the deceased has been
murdered and the body has been buried.

5. A charge sheet has been filed by the first respondent based upon the
above said facts for the alleged offence under Sections 365, 302 and 201 I.P.C
read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.

6. Challenging the implication of the petitioners for the alleged offence
under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989, the present petition has been filed.

7. The learned Counsel for the petitioners submitted that on a perusal of
the complaint, the statement given by the witnesses under Section 161(3) of the
Code of Criminal Procedure and the charge sheet, no offence under Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, has been made out. The learned Counsel further submitted that there
is no allegation neither in the complaint nor in the statements given by the
witnesses or in the charge sheet that the offence has been committed on the
ground that the deceased belonged to the Scheduled Caste community and there is
not even a statement by the accused to that effect, even as per the case of the
prosecution.

8. The learned Counsel for the petitioners also submitted that therefore
under those circumstances, the framing of charges under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, will
have to be quashed.

9. In support of his contention, the learned Counsel for the petitioners
relied upon the decision in (i)C.Vijaya v. State of Tamil Nadu represented by
Secretary to Government, Home Department and others [1999 MLJ(Crl) 600] and (ii)
Dinesh alias Buddha v. State of Rajasthan [(2006) 3 Supreme Court Cases 771] and
submitted that when there is no allegation warranting the offence under Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, the proceedings are liable to be quashed.

10. Per contra, the learned Counsel for the second respondent submitted
that merely because the statements recorded under Section 161(3) of the Code of
Criminal Procedure, do not indicate the alleged offence under Section 3(2)(v)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, the proceedings cannot be quashed. The learned Counsel further submitted
that the question as to whether the alleged offence under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is
made out or not, will have to be decided at the time of trial. Therefore, this
Court shall not interfere with the same.

11. In support of his contention, the learned Counsel for the second
respondent has relied upon the decision in Baldev Singh v. State of Punjab [1991
MLJ(Crl) 24] and submitted that the statement recorded under Section 161(3) of
the Code of Criminal Procedure cannot be used for any purpose except to
contradict a witness in the manner prescribed in the proviso to Section 162(1)
of the Code of Criminal Procedure. The learned Counsel also relied on the
decision in State of Haryana and another v. Dharam Singh and others [(2009) 4
Supreme Court Cases 340] and submitted that a judgment cannot be relied upon
without indicating how the same is applicable to the present case on hand.
Therefore, the learned Counsel for the second respondent prayed for the
dismissal of this petition.

12. Admittedly, in the present case on hand, there is no allegation in the
statements of the witnesses and in the complaint that the alleged offence has
been committed by the petitioners on the ground that the deceased was belonging
to the Scheduled Caste community.

13. The case of the prosecution is that the second petitioner got agitated
due to the objection raised by the deceased about the illicit relationship
between the second petitioner and one Jayanthi. Even in the charge sheet, the
very same facts have been stated to the effect that in pursuance of the
objections raised by the deceased, the alleged occurrence had been happened.
Merely because, the deceased belonged to the Scheduled Caste community, the
alleged offence under Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, cannot be charged against the
petitioners. No doubt, it is true that the other charges for the offences are
very specific against the petitioners, but what is challenged before this Court
is only the implication of the petitioners for the alleged offence under Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.

14. In order to appreciate the above said position, the provision
contained under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, is extracted hereunder:

“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe
commits any offence under the Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more against a person or property on the
ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or
such property belongs to such member, shall be punishable with imprisonment for
life and with fine.”

15. A reading of the above said provision and applying the same to the
case on hand, would clearly show that the alleged occurrence did not happen
because of the fact that the deceased belonged to the Scheduled Caste community.
There is not even a statement either in the complaint or in the statement
recorded under Section 161(3) of the Code of Criminal Procedure from the
witnesses to the effect that the petitioners abused the deceased on the basis of
his community or committed the offence only on that basis.

16. Admittedly, the alleged offence is said to have been committed by the
petitioners in view of the relationship of the second petitioner with one
Jayanthi which was questioned by the deceased.

17. In fact, a further reading of the statement under Section 161(3) of
the Code of Criminal Procedure given by some of the witnesses would show that
the deceased is said to have questioned the second petitioner that in view of
the illicit relationship, the second petitioner is creating problem to the
village.

18. In C.Vijaya v. State of Tamil Nadu represented by Secretary to
Government, Home Department and others [1999 MLJ(Crl) 600], this Court has
observed as follows:

“9. As rightly pointed out by the learned Government Advocate, Sec.3(2)(v)
of the S.C/S.T.Act, cannot be applied in the instant case, as the victim was not
raped on the ground that the victim was a member of a Scheduled Tribe.
Sec.3(2)(v) provides as under:

“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe
commits any offence under the Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more against a person or property on the
ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or
such property belongs to such member, shall be punishable with imprisonment for
life and with fine.”

10. The investigation done in this case discloses that the gang rape was
committed when the victim was in the custody of the police personnel not on the
ground that she belongs to a Scheduled Tribe, so as to insult the said Tribe.
But this offence was committed since she was a young woman taking advantage that
she was in their custody. Therefore, there may not be any difficulty to
conclude that Sec.3(2)(v) of the Act cannot be invoked.”

19. Similarly, in Dinesh alias Buddha v. State of Rajasthan [(2006) 3
Supreme Court Cases 771], the Honourable Apex Court has observed as follows:

“15. Sine qua non for application of Section 3(2)(v) is that an offence
must have been committed against a person on the ground that such person is a
member of the Scheduled Castes or the Scheduled Tribes. In the instant case no
evidence has been led to establish this requirement. It is not the case of the
prosecution that the rape was committed on the victim since she was a member of
a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v)
has no application. Had Section 3(2)(v) of the Atrocities Act been applicable
then by operation of law, the sentence would have been imprisonment for life and
fine.”

20. Applying the said ratio to the facts of the present case, this Court
is of the opinion that it is crystal clear that the alleged occurrence has
happened not because of the fact that the deceased belonged to the Scheduled
Caste, but in view of the alleged illicit relationship of the second petitioner
with one Jayanthi, which was questioned by the deceased.

21. The decisions relied on by the learned Counsel for the second
respondent are not applicable to the present case on hand.

22. As observed earlier, there is absolutely no material or evidence to
substantiate the charges framed against the petitioners under Section 3(2)(v) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

23. Therefore, when the charges are not maintainable against the
petitioners, there is no useful purpose in allowing the trial to be proceeded
with insofar as the charge under Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 along with other alleged
offences. Further, the charges framed by the Court being a judicial act, the
same can be questioned and set aside if it is found that the said charges are
without any basis on the admitted facts of a particular case.

24. Therefore, the proceedings in P.R.C.No.10 of 2009 pending on the file
of the learned Judicial Magistrate No.II, Thoothukudi, is quashed insofar as the
charge regarding Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, is concerned, against the petitioners/A.1
to A.4. It is made clear that the order passed by this Court is specifically
confined to the above said charge alone and not pertaining to the other charges
which have not been challenged before this Court.

25. In the result, this Criminal Original Petition is allowed to the
extent indicated above. Consequently, the connected Miscellaneous Petitions are
closed.

rsb

TO

1.The Deputy Superintendent of Police,
Thoothukudi Rural Sub Division,
Thoothukudi District.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.

3.The Judicial Magistrate No.II, Thoothukudi.

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