I N T HE decision of a Single Judge Bench criminal case – Achal Singh and 3 others, Justice Birendra Kumar has held at the Rajasthan High Court, Jodhpur, on November 12, 2024, that in the judgment of the case – Kola Ram & Another v. State of Rajasthan-(1999) Cr.L.R. (Raj.) 401 that framing of charge after giving opportunity of hearing is an independent judicial act, hence mere taking of cognizance does not make it obligatory to frame charge. In other words, correctness of order of charge can be looked into inspite of order of cognizance on the same facts of the case. All the 4 appellants – Achal Singh Dungar Singh (65), his sons, Madan Singh alias Prem Singh (38), Damodar Singh (43) and Surendra Singh (40)- residents of Silavta Pada in Jaisalmer District are accused in the FIR registered with the Police Station Kotwali for the offences under sections 3 (1)(X) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)Act.

 

Through the impugned order of September 13, 2023, the charges were ordered to be framed for offences under sections 353, 332/34 of IPC as well as 3(1)(X) of SC and ST (Prevention of Atrocities) Act, 1989. The prosecution case is that on January 31, 2011, respondent-2 along with other officials had gone to identify the area of encroachment on the public land made by Achal Singh (Appellant1), when the informant was measuring the site, all the petitioners objected and allegedly uttered the words like “Bhangi, Neech, Bhikhari , Mangani” to the informant and others and they committed assault as well. After investigation, the Police found theallegation as untrue and submitted negative report but on protest petition, cognizance was taken and subsequently, charges were ordered to be framed. The counsel for the appellants submitted that ingredients of the offence under section 3(1)(x) is apparently not made out on bare perusal of the allegation in the FIR or Protest Petition which contains verbatim allegations made in the FIR. The counsel had also drawn attention of the Court to the relevant provisions of section 3 of the Act of 1989, which reads as follows: “3. Punishments for offences of atrocities – (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,-*** (x) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; ***” The counsel; further contended that there is no iota of evidence that the petitioners had knowledge about the caste of the Informant and others.

 

There is no material that the incident took place in the public view. Only prosecution party are said to have witnessed the incident. It is a case of flagrant abuse of the provisions of law because the incident did not take place for the reason that the appellants were intending to humiliate the informant and others for their being members of the SCs or STs, rather the incident took place for unfair measurements to decide any encroachment allegedly made by the appellants. The counsel for the respondents including the private respondent submitted that meticulous appreciation of evidence at the stage of framing of charge is not permissible. The considerations atboth the stages, that is taking of cognizance and framing of charge are the same, that is prima facie cognizable offences are disclosed on bare perusal of the material collected during investigation. The parameters at the conclusion of trial cannot be applied “at this stage” . On the other hand, the appellants’ counsel placed reliance on the judgments of the Supreme Court in the cases – Ramesh Chandra Vaishya v. the State of Uttar Pradesh & Another- (2023) Live Law (SC) 469, Dashrath Sahu V. State of Chhattisgarh decided on January 29, 2024 in Criminal Appeal 487/2024 (arising out of SLP (Cr.) 6367/2323) and the case of Kola Ram (Rajasthan HC). In the case of Ramesh Chandra Vaishya, the incident had taken place over the issue of drainage of water.

 

The altercation was alleged including abuse by caste name. As in the present case, in that case also the words used were not caste name, nor there is allegation that the petitioners were known to the caste of the public servants, who had gone to remove the public encroachments. Moreover, it is crystal clearon bare perusal of allegation thatthe petitioners were not intending to humiliate accused persons for the reason that they weremembers of SCs and STs ratherthe act of the petitioners was inprotest against the action of measurements being wronglydone by the public servants. In the Ramesh Chandra’s case, the SC had noticed that threewitnesses of the incident werethe complainant, his wife andtheir son. Neither the FIR nor the chargesheet referred to anyfifth individual, member of apublic at the place of occurrence. In the present case, only theinformant and its officials arewitnesses of the incident, noindependent witness has turnedup to support that he was witness of the incident. The Policeafter investigation, did not findthe allegation true, hence evidently, the offence under section 3(1)(x) of the Act of 1989 isnot made out and the appellantsdeserve discharge for the abovesaid offence. However, there is prima facieallegation that the appellants hadobstructed in the official discharge of public duty by therespondent and therefore, forthat act of the appellants, criminal prosecution would go on. Accordingly, the Rajasthan HighCourt has allowed the revisionand set aside the impugned orderto the extent of framing of chargeunder section 3(1)(x) of the Act of 1989 and discharged the appellants of the offence under section3(1)(x) of the Act of 1989.