{"id":74514,"date":"2010-04-29T00:00:00","date_gmt":"2010-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mallaiah-muthu-mallaiah-vs-the-deputy-superintendent-of-on-29-april-2010"},"modified":"2014-01-15T11:35:03","modified_gmt":"2014-01-15T06:05:03","slug":"mallaiah-muthu-mallaiah-vs-the-deputy-superintendent-of-on-29-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mallaiah-muthu-mallaiah-vs-the-deputy-superintendent-of-on-29-april-2010","title":{"rendered":"Mallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of … on 29 April, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Mallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of … on 29 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 29\/04\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.M.SUNDRESH\n\nCrl.O.P(MD)No.1348 of 2010\nAND\nM.P(MD)No.1 of 2010\nand\nM.P(MD)No.3 of 2010\n\n1.Mallaiah @ Muthu Mallaiah\n2.Selvam\n3.Suyambu @ Suyambudurai\n4.Murugesan\t\t\t\t\t... Petitioners\/\n\t\t\t\t\t\t     A.1 to A.4\t\t\n\n\nVs\n\n1.The Deputy Superintendent of Police,\n  Thoothukudi Rural Sub Division,\n  Thoothukudi District.\t\t                ... 1st Respondent\/\n\t\t\t\t\t\t    Complainant\n2.Stella\t\t\t\t\t... 2nd Respondent\/\n\t\t\t\t\t\t    Defacto complainant\n\n(R2 impleaded as per the orders of this Court made in M.P(MD)No.2 of 2010 in\nCrl.O.P(MD)No.1348 of 2010 vide orders dated 23.02.2010)\n\n\nPrayer\n\nPetition under Section 482 of the Code of Criminal Procedure, to call\nfor the entire records in P.R.C.No.10 of 2009 pending on the file of the learned\nJudicial Magistrate No.II, Thoothukudi and quash the penal provisions of the\nSC\/ST Act alone.\n\n!For Petitioners ... Mr.C.Christopher\n^For Respondents ... Mr.P.Rajendran,\n\t\t     Govt.Advocate (Crl.Side) for R1\n\t\t     Mr.B.Pugalendhi for R2\n* * * * *\n\n:ORDER\n<\/pre>\n
\tThe petitioners, who are A.1 to A.4 for the alleged offences under
\nSections 365, 302 and 201 I.P.C read with Section 3(2)(v) of the Scheduled
\nCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, seek to quash
\nthe proceedings in P.R.C.No.10 of 2009 pending on the file of the learned
\nJudicial Magistrate No.II, Thoothukudi, insofar as the offence punishable under
\nSection 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
\nAtrocities) Act, 1989 is concerned.\n<\/p>\n
\t2. The second respondent\/defacto complainant gave a complaint stating that
\nher deceased husband was having illicit relationship with one Pushpavalli.  In
\nview of the objections made by her, the defacto complainant’s husband had
\nstopped going to the house of the said Pushpavalli.  Since the deceased had
\nstopped going to the house of Pushpavalli, all the accused have abducted the
\ndeceased.\n<\/p>\n
\t3. A further statement was given by the second respondent\/defacto
\ncomplainant stating that when the petitioners 1 and 2 were walking in the
\nstreet, they shouted at the deceased who was following them and the second
\npetitioner stated that why the deceased was following him which was replied by
\nthe deceased stating that it is none of botheration of the second petitioner.
\nThereafter, the second petitioner has replied stating that the deceased has no
\nbusiness to say that the second petitioner should not enter into the street and
\nmove with one Jayanthi.  After making such statement, the deceased was attacked
\nand taken in a tri-cycle by all the accused.  The other witnesses have also
\ngiven the same version to the effect that the deceased questioned the
\nrelationship of the said Jayanthi with the second petitioner which has resulted
\nin the alleged occurrence.\n<\/p>\n
\t4. It has been further stated that thereafter the deceased has been
\nmurdered and the body has been buried.\n<\/p>\n
\t5. A charge sheet has been filed by the first respondent based upon the
\nabove said facts for the alleged offence under Sections 365, 302 and 201 I.P.C
\nread with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
\n(Prevention of Atrocities) Act, 1989.\n<\/p>\n
\t6. Challenging the implication of the petitioners for the alleged offence
\nunder  Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
\nof Atrocities) Act, 1989, the present petition has been filed.\n<\/p>\n
\t7. The learned Counsel for the petitioners submitted that on a perusal of
\nthe complaint, the statement given by the witnesses under Section 161(3) of the
\nCode of Criminal Procedure and the charge sheet, no offence under  Section
\n3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
\nAct, 1989, has been made out.  The learned Counsel further submitted that there
\nis no allegation neither in the complaint nor in the statements given by the
\nwitnesses or in the charge sheet that the offence has been committed on the
\nground that the deceased belonged to the Scheduled Caste community and there is
\nnot even a statement by the accused to that effect, even as per the case of the
\nprosecution.\n<\/p>\n
\t8. The learned Counsel for the petitioners also submitted that therefore
\nunder those circumstances, the framing of charges under  Section 3(2)(v) of the
\nScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, will
\nhave to be quashed.\n<\/p>\n
\t9. In support of his contention, the learned Counsel for the petitioners
\nrelied upon the decision in (i)C.Vijaya v. State of Tamil Nadu<\/a> represented by
\nSecretary to Government, Home Department and others [1999 MLJ(Crl) 600] and (ii)
\nDinesh alias Buddha v. State of Rajasthan<\/a> [(2006) 3 Supreme Court Cases 771] and
\nsubmitted that when there is no allegation warranting the offence under Section
\n3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
\nAct, 1989, the proceedings are liable to be quashed.\n<\/p>\n
\t10. Per contra, the learned Counsel for the second respondent submitted
\nthat merely because the statements recorded under Section 161(3) of the Code of
\nCriminal Procedure, do not indicate the alleged offence under  Section 3(2)(v)
\nof the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
\n1989, the proceedings cannot be quashed.  The learned Counsel further submitted
\nthat the question as to whether the alleged offence under Section 3(2)(v) of the
\nScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is
\nmade out or not, will have to be decided at the time of trial.  Therefore, this
\nCourt shall not interfere with the same.\n<\/p>\n
\t11. In support of his contention, the learned Counsel for the second
\nrespondent has relied upon the decision in Baldev Singh v. State of Punjab [1991
\nMLJ(Crl) 24] and submitted that the statement recorded under Section 161(3) of
\nthe Code of Criminal Procedure cannot be used for any purpose except to
\ncontradict a witness in the manner prescribed in the proviso to Section 162(1)
\nof the Code of Criminal Procedure.  The learned Counsel also relied on the
\ndecision in State of Haryana and another v. Dharam Singh and others [(2009) 4
\nSupreme Court Cases 340] and submitted that a judgment cannot be relied upon
\nwithout indicating how the same is applicable to the present case on hand.
\nTherefore, the learned Counsel for the second respondent prayed for the
\ndismissal of this petition.\n<\/p>\n
\t12. Admittedly, in the present case on hand, there is no allegation in the
\nstatements of the witnesses and in the complaint that the alleged offence has
\nbeen committed by the petitioners on the ground that the deceased was belonging
\nto the Scheduled Caste community.\n<\/p>\n
\t13. The case of the prosecution is that the second petitioner got agitated
\ndue to the objection raised by the deceased about the illicit relationship
\nbetween the second petitioner and one Jayanthi.  Even in the charge sheet, the
\nvery same facts have been stated to the effect that in pursuance of the
\nobjections raised by the deceased, the alleged occurrence had been happened.
\nMerely because, the deceased belonged to the Scheduled Caste community, the
\nalleged offence under Section 3(2)(v) of the Scheduled Castes and Scheduled
\nTribes (Prevention of Atrocities) Act, 1989, cannot be charged against the
\npetitioners.  No doubt, it is true that the other charges for the offences are
\nvery specific against the petitioners, but what is challenged before this Court
\nis only the implication of the petitioners for the alleged offence under Section
\n3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
\nAct, 1989.\n<\/p>\n
\t14. In order to appreciate the above said position, the provision
\ncontained under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
\n(Prevention of Atrocities) Act, 1989, is extracted hereunder:\n<\/p>\n
\t“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe
\ncommits any offence under the Indian Penal Code (45 of 1860) punishable with
\nimprisonment for a term of ten years or more against a person or property on the
\nground that such person is a member of a Scheduled Caste or a Scheduled Tribe or
\nsuch property belongs to such member, shall be punishable with imprisonment for
\nlife and with fine.”\n<\/p>\n
\t15. A reading of the above said provision and applying the same to the
\ncase on hand, would clearly show that the alleged occurrence did not happen
\nbecause of the fact that the deceased belonged to the Scheduled Caste community.
\nThere is not even a statement either in the complaint or in the statement
\nrecorded under Section 161(3) of the Code of Criminal Procedure from the
\nwitnesses to the effect that the petitioners abused the deceased on the basis of
\nhis community or committed the offence only on that basis.\n<\/p>\n
\t16. Admittedly, the alleged offence is said to have been committed by the
\npetitioners in view of the relationship of the second petitioner with one
\nJayanthi which was questioned by the deceased.\n<\/p>\n
\t17. In fact, a further reading of the statement under Section 161(3) of
\nthe Code of Criminal Procedure given by some of the witnesses would show that
\nthe deceased is said to have questioned the second petitioner that in view of
\nthe illicit relationship, the second petitioner is creating problem to the
\nvillage.\n<\/p>\n
\t18. In C.Vijaya v. State of Tamil Nadu<\/a> represented by Secretary to
\nGovernment, Home Department and others [1999 MLJ(Crl) 600], this Court has
\nobserved as follows:\n<\/p>\n
\t“9. As rightly pointed out by the learned Government Advocate, Sec.3(2)(v)
\nof the S.C\/S.T.Act, cannot be applied in the instant case, as the victim was not
\nraped on the ground that the victim was a member of a Scheduled Tribe.
\nSec.3(2)(v) provides as under:\n<\/p>\n
\t“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe
\ncommits any offence under the Indian Penal Code (45 of 1860) punishable with
\nimprisonment for a term of ten years or more against a person or property on the
\nground that such person is a member of a Scheduled Caste or a Scheduled Tribe or
\nsuch property belongs to such member, shall be punishable with imprisonment for
\nlife and with fine.”\n<\/p>\n
\t10. The investigation done in this case discloses that the gang rape was
\ncommitted when the victim was in the custody of the police personnel not on the
\nground that she belongs to a Scheduled Tribe, so as to insult the said Tribe.
\nBut this offence was committed since she was a young woman taking advantage that
\nshe was in their custody.  Therefore, there may not be any difficulty to
\nconclude that Sec.3(2)(v) of the Act cannot be invoked.”\n<\/p>\n
\t19. Similarly, in Dinesh alias Buddha v. State of Rajasthan<\/a> [(2006) 3
\nSupreme Court Cases 771], the Honourable Apex Court has observed as follows:\n<\/p>\n
\t“15. Sine qua non for application of Section 3(2)(v) is that an offence
\nmust have been committed against a person on the ground that such person is a
\nmember of the Scheduled Castes or the Scheduled Tribes.  In the instant case no
\nevidence has been led to establish this requirement.  It is not the case of the
\nprosecution that the rape was committed on the victim since she was a member of
\na Scheduled Caste.  In the absence of evidence to that effect, Section 3(2)(v)
\nhas no application.  Had Section 3(2)(v) of the Atrocities Act been applicable
\nthen by operation of law, the sentence would have been imprisonment for life and
\nfine.”\n<\/p>\n
\t20. Applying the said ratio to the facts of the present case, this Court
\nis of the opinion that it is crystal clear that the alleged occurrence has
\nhappened not because of the fact that the deceased belonged to the Scheduled
\nCaste, but in view of the alleged illicit relationship of the second petitioner
\nwith one Jayanthi, which was questioned by the deceased.\n<\/p>\n
\t21. The decisions relied on by the learned Counsel for the second
\nrespondent are not applicable to the present case on hand.\n<\/p>\n
\t22. As observed earlier, there is absolutely no material or evidence to
\nsubstantiate the charges framed against the petitioners under Section 3(2)(v) of
\nthe Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.\n<\/p>\n
\t23. Therefore, when the charges are not maintainable against the
\npetitioners, there is no useful purpose in   allowing the trial to be proceeded
\nwith insofar as the charge under Section 3(2)(v) of the Scheduled Castes and
\nScheduled Tribes (Prevention of Atrocities) Act, 1989 along with other alleged
\noffences.  Further, the charges framed by the Court being a judicial act, the
\nsame can be questioned and set aside if it is found that the said charges are
\nwithout any basis on the admitted facts of a particular case.\n<\/p>\n
\t24. Therefore, the proceedings in P.R.C.No.10 of 2009 pending on the file
\nof the learned Judicial Magistrate No.II, Thoothukudi, is quashed insofar as the
\ncharge regarding Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
\n(Prevention of Atrocities) Act, 1989, is concerned, against the petitioners\/A.1
\nto A.4.  It is made clear that the order passed by this Court is specifically
\nconfined to the above said charge alone and not pertaining to the other charges
\nwhich have not been challenged before this Court.\n<\/p>\n
\t25. In the result, this Criminal Original Petition is allowed to the
\nextent indicated above.  Consequently, the connected Miscellaneous Petitions are
\nclosed.\n<\/p>\n
rsb<\/p>\n
TO<\/p>\n
1.The Deputy Superintendent of Police,
\n  Thoothukudi Rural Sub Division,
\n  Thoothukudi District.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court, Madurai.\n<\/p>\n
3.The Judicial Magistrate No.II, Thoothukudi.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-74514","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of ... on 29 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mallaiah-muthu-mallaiah-vs-the-deputy-superintendent-of-on-29-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mallaiah @ Muthu Mallaiah vs The Deputy Superintendent Of ... on 29 April, 2010 - 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