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Nirbhay Singh Son of Late Shri Himmat Singh v. State of Rajasthan

Rajasthan HC1 Jun 2023CRLAS/787/2021

Case brief

AI extract

What is this about?

The High Court set aside the trial court's order of cognizance under the SC/ST (POA) Act against a government driver. The court held the proceeding was bad in law due to lack of prosecution sanction and insufficient evidence of casteist slurs, discharging the appellant.

What did the court decide?

Order of cognizance dated 30.01.2020 set aside; complaint dismissed; appellant discharged.

Nirbhay Singh Son of Late Shri Himmat Singh Vs State of… — Caste Atrocities | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal No. 787/2021

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Nirbhay Singh Son Of Late Shri Himmat Singh, R/o Village Pidawali, Tehsil Bayana, District Bharatpur, Government Jeep, Driver, At Present Working At Police Station Atalband, District Bharatpur

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----Appellant

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Versus

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State Of Rajasthan, Through P.p

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Tarachand Pohiya Son Of Shri Biharilal, R/o Vijaynagar Colony, Heeradas, Police Station Atalband, District Bharatpur (Raj)

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----Respondents

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For Appellant(s) : Mr. Madan Lal Sharma For Respondent(s) : Mr. B.L. Nasuna, Dy.G.A. Mr. Anshul Sharma

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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RESERVED ON 26/05/2023 PRONOUNCED ON 01/06/2023

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This appeal is preferred aggrieved from order of cognizance dated 30.01.2020 in Complaint Case No.37/2020 passed by learned Special Judge, SC/ST (POA) Act, Cases, Bharatpur whereby on complaint of complainant-respondent no.2 learned trial court had proceeded to take cognizance against appellant under Section 504 IPC and Sections 3(1)(r), 3(1)(s) SC/ST (POA) Act.

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Learned counsel for the appellant submitted that appellant is an innocent person and he had been falsely implicated in the case. He further submitted that appellant is a Jeep vehicle driver of

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[CRLAS-787/2021]

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(2 of 5)

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police station on said day when a relative of respondent no.2 was produced in criminal case before the Magistrate. The relatives of said accused quarreled with police team wherein respondent no.2 was also present and when they were asked to remain calm and follow the procedure but due to so called heated exchange a complaint was filed at belated stage by complainant as he was a practicing advocate before the District Courts. He further submitted that when the matter was sent for an in inquiry under Section 202 Cr.P.C. then after inquiry it was found that abusive language or casteist slur were not used by appellant but learned trial court without application of mind just under the pressure of respondent no.2, who is a practicing lawyer in Bharatpur and due to prejudice against appellant proceeded to take cognizance. He further submitted that not a single iota of evidence is available on record. Further, appellant is a government servant and without proper sanction cognizance was taken so it is bad in eye of law.

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Aforesaid contentions were opposed by learned counsel for the complainant and he submitted that during heated exchange appellant had used caste slur and abusive language against complainant-respondent, which is an offence. He further submitted that sufficient material is available before the court to proceed against appellant, therefore, no illegality was committed by the trial court.

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Heard learned counsel for the appellant and learned counsel for the respondent along with learned Public Prosecutor. Perused the material available on record.

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Admittedly, appellant is a policeman serving as a driver in Bharatpur police. A perusal of complaint filed as (Annexure-1)

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[CRLAS-787/2021]

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clearly indicated that on 17.04.2019 when Vinod Singh S/o Ratan Singh Jatav after arrest was produced under Section 151 Cr.P.C. before the Executive Magistrate then the complainant on receipt of phone from police went to submit bail and bonds then only this heated verbal exchange were said to take place between complainant and appellant. The admitted fact clearly indicated that besides appellant one more head constable and constable were also present there but learned trial court had failed to appreciate the fact that to arrive at a just conclusion it was necessary to examine them under Section 202 Cr.P.C. It appears that the entire incident had taken place when appellant was discharging his official duty, therefore, unless it is proved that appellant had committed aforesaid act and same was not part of duty on that particular time then only Section 197 Cr.P.C. is not attracted but herein learned trial court neither mentioned the fact that Section 197 Cr.P.C. is attracted or not, nor proceeded for obtaining prosecution sanction as provided under Section 197 Cr.P.C. Therefore, the order of learned trial court on this ground itself is bad in eye of law for this purpose, we can rely upon judgment of Hon’ble Supreme Court in the case of D. Devaraja Vs. Owais Sabeer Hussain reported in (2020) 7 SCC 695.

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As regard to fact of case is concerned respondentcomplainant is an advocate and the incident as alleged was for 17.04.2019, if any such alter or verbal heated exchange had taken place then same is required to be reported immediately to the Magistrate concerned before whom a relative of respondentcomplainant was produced by the police. In case, if complainant desired to file a complaint then earliest occasion was to file a

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(4 of 5) [CRLAS-787/2021]

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complaint before senior officer of police including S.P. and I.G. available at headquarter but this complaint was filed on 20.04.2019 after a delay of almost 3 days. In para 4 of complaint it was reported that complainant had sent complaint by registered post but a copy of same is required to be produced and learned trial court without asking for a report under Section 210 of Cr.P.C. proceeded to initiate action on this complaint, therefore, the reasons assigned by complainant for delay in such a matter not appears to be justified particularly on the fact that accused or the individual which was produced before the Magistrate was a close relative of complainant.

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It was alleged that appellant on enquiry was made aware that complainant is brother of the person who was in custody of police so appellant was aware that complainant is a member of SC/ST community. In this regard, the principle of law laid down by Hon’ble Supreme Court in the case of Hitesh Verma Vs. State of Uttarakhand and Anr. reported in (2020) 10 SCC 710 clearly indicated that knowledge and public view is must to establish the fact but herein in this case it was not so and learned trial court on the basis of fact in the complaint followed by statement of complainant along with report under Section 202 Cr.P.C. proceeded to take cognizance whereas in report under Section 202 Cr.P.C. only it was mentioned that there was verbal heated exchange but no evidence of use of caste slur or abusive language was found, therefore, on the basis of facts itself learned trial court had committed a serious error in taking cognizance.

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Hence, the order of cognizance passed by learned trial court not only suffers from illegality but it is also procedurally and

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[CRLAS-787/2021]

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factually not in accordance with record and law, hence, same is liable to be interfered.

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Therefore, in view of aforesaid discussions present appeal under Section 14-A of SC/ST (POA) Act, whereby order of cognizance dated 30.01.2020 was challenged, is hereby allowed and order of cognizance dated 30.01.2020 is hereby set aside. The complaint is dismissed and appellant is discharged.

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Misc. application(s), if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/76

Nirbhay Singh Son of Late Shri Himmat Singh v. State of Rajasthan

Case brief

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Nirbhay Singh Son of Late Shri Himmat Singh v. State of Rajasthan

Case brief

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