KALAM AND 4 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                   CRIMINAL APPEAL No. - 3966 of 2023

Kalam And 4 Others
                                                            .....Appellant(s)
                                   Versus

State of U.P. and Another
                                                          .....Respondent(s)

Counsel for Appellant(s)                    :   Shashi Dhar Shukla
Counsel for Respondent(s)                   :   G.A.

Court No. - 93
                      HON'BLE SANTOSH RAI, J.

1. As per office report dated 17.05.2023, notice has already been served
upon O.P. No.2 personally.

2. Despite service of notice, none appeared on behalf of O.P. No.2.

3. Heard Shri Shashi Dhar Shukla, learned counsel for the appellants and
learned AGA for the State.

4. The present criminal appeal has been filed by the appellants with a
prayer to set aside the summoning order dated 26.02.2021 passed by
Special Judge, SC/ST Act, Basti in Complaint Case No.26 of 2020 (Pappu
vs. Kalam and others) under Sections 147, 323, 427, 504 and 506 IPC and
Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, P.S.- Kaptanganj, District- Basti. He further prays to
stay the proceedings in the aforesaid case.

5. Learned counsel for the appellants submits that the impugned
summoning order dated 26.02.2021 passed by the learned Additional
Special Judge (SC/ST Act), Basti in Complaint Case No. 26 of 2020 is
illegal and unsustainable. It is submitted that the application under
Section 156(3) Cr.P.C. was treated as a complaint on 17.01.2020,
followed by recording of the complainant’s statement under Section 200
Cr.P.C. and statements of witnesses under Section 202 Cr.P.C.; however,
the learned court below summoned the appellants without properly
appreciating the material on record and without recording adequate
satisfaction. It is further submitted that the dispute between the parties is
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essentially a land dispute, the parties being residents of the same village,
and the allegations, including the alleged caste-related abuse, are false and
motivated. No offence under Sections 147, 323, 427, 504, 506 IPC and
Section 3(1)(r) SC/ST Act is made out against the appellants. The
impugned order was passed arbitrarily, without proper application of
judicial mind, and without recording satisfaction regarding service of
summons. The appellants have no criminal antecedents and have been
falsely implicated due to the existing land dispute. Accordingly, the
summoning order deserves to be quashed and further proceedings stayed.

6. Learned AGA submits that the complaint discloses specific allegations
against the appellants and the learned court below, after considering the
complaint, the statement under Section 200 Cr.P.C. and the statements of
witnesses under Section 202 Cr.P.C., has rightly summoned them. The
contention that the case arises out of a land dispute is a matter of defence
and cannot be examined in detail at the stage of summoning. It is further
submitted that the appellants have an adequate opportunity to establish
their defence during trial and that the impugned summoning order does
not suffer from any jurisdictional or legal infirmity warranting
interference. The appeal, therefore, deserves to be dismissed and the
proceedings before the court below be permitted to continue.

7. In the application under Section 156(3) Cr.P.C., allegations were made
against Kalam, Chotkan, Karim, Ajmal, Imran, Noor Afsa and Sufia
Khatun. The application was subsequently treated as a complaint,
whereafter the statements of the complainant and witnesses were recorded
under Sections 200 and 202 Cr.P.C. It is submitted that although
paragraph 3 of the complaint refers to an incident allegedly involving two
police personnel, said to have assaulted the victim with a belt at the
instance of previous village chief Banne @ Aejaz Ahmed after taking
Rs.10,000/-, there is no reliable medical evidence or injury report on
record connecting the appellants with any injury. Moreover, in his
statement under Section 200 Cr.P.C., the complainant has nowhere stated
that the appellants actually caused him any injury. At best, the allegation
is of instigation and use of vulgar language, including the word “chamar.”
It is further submitted that the material on record indicates that the dispute
essentially arose out of the demolition of a wall allegedly constructed by
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the complainant, giving rise to allegations of mischief. However, neither
the complaint nor the statements under Sections 200 and 202 Cr.P.C.
contain any specific allegation that the alleged caste-related word was
used with the intention to insult or humiliate the victim on account of his
belonging to the SC/ST community. Thus, the necessary ingredients of
the offence under Section 3(1)(r) of the SC/ST Act are absent. Thus, the
sole basis of the incident is the demolition of wall and not the caste of the
victim, who belong to the SC/ST community. Accordingly, no material to
establish the offence under Section 323 IPC or the requisite caste-based
intention under Section 3(1)(r) of the SC/ST Act, and therefore the
summoning order, to that extent, is unsustainable.

8. In the case of Swaran Singh vs State (2008) 8 SCC 435, the Hon'ble
Apex Court drew a clear distinction between the expressions "public
place" and "any place within public view." A private place may still be a
place within public view if the incident is visible to members of the
public. Conversely, merely because an incident occurs in a public
building does not automatically satisfy the requirement if it is not within
public view. The Supreme Court held that words such as "Chamar",
though originally denoting a caste, may amount to an offence if used as a
casteist abuse with intent to humiliate a member of the Scheduled Castes.
The Court emphasized that words should be understood in their popular
and social meaning, not merely their etymological meaning. For attracting
Section 3(1)(x) (now Sections 3(1)(r) and 3(1)(s)), there must be
intentional insult or intimidation; and intent to humiliate the victim
because he or she belongs to a Scheduled Caste or Scheduled Tribe. Mere
abuse or quarrel, without the requisite intention contemplated by the Act,
is insufficient. The Court reiterated that criminal proceedings should
continue only where the allegations disclose a prima facie offence against
the particular accused. Proceedings may be quashed where the FIR does
not disclose the essential ingredients against an accused.

9. In Gorige Pentaiah vs state of AP & Ors 2009 Cri.L.J. 350, Honble
Apex court held "when the basic ingredients of the offence are missing in
the complaint, then permitting such complaint to continue and to compel
the appellant to face the rigmarole of the criminal trial would be totally
unjustified leading to abuse of process of law." In the case of Hitesh
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Verma vs. State of Uttarakhand (2020) 10 SCC 710, the Hon'ble Suprme
Court held that 'a dispute that arose inside the private house of a
complainant over the possession of the land without the presence of
independent public witnesses, does not satisfy the statutory threshold of
Section 3(1)(r).

10. In the case of Shajan Skraria vs. State of Kerala and another, 2024
SCC Online SC 2249, the Hon'ble Apex Court by quoting the cases of
Hitesh Verma (Supra) has held as under:

     "13. The offence under Section 3(1)(r) of the Act would indicate the
     ingredient of intentional insult and intimidation with an intent to
     humiliate a member of a Scheduled Caste or a Scheduled Tribe. All
     insults or intimidations to a person will not be an offence under the Act
     unless such insult or intimidation is on account of victim belonging to
     Scheduled Caste or Scheduled Tribe. The object of the Act is to improve
     the socio-economic conditions of the Scheduled Castes and the Scheduled
     Tribes as they are denied number of civil rights. Thus, an offence under
     the Act would be made out when a member of the vulnerable section of
     the society is subjected to indignities, humiliations and harassment. The
     assertion of title over the land by either of the parties is not due to either
     the indignities, humiliations or harassment. Every citizen has a right to
     avail their remedies in accordance with law. Therefore, if the appellant or
     his family members have invoked jurisdiction of the civil court, or that
     Respondent 2 has invoked the jurisdiction of the civil court, then the
     parties are availing their remedies in accordance with the procedure
     established by law. Such action is not for the reason that Respondent 2 is
     a member of Scheduled Caste."

     In Khuman Singh v. State of M.P., (2020) 18 SCC 763

     "15. As held by the Supreme Court, the offence must be such so as to
     attract the offence under Section 3(2)(v) of the Act. The offence must have
     been committed against the person on the ground that such person is a
     member of Scheduled Caste and Scheduled Tribe. Thus, the dictum as laid
     aforesaid is that the offence under Section 3(1)(r) of the Act, 1989 is not
     established merely on the fact that the complainant is a member of a
     Scheduled Caste or a Scheduled Tribe, unless there is an intention to
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     humiliate such a member for the reason that he belongs to such
     community. In other words, it is not the purport of the Act, 1989 that
     every act of intentional insult or intimidation meted by a person who is
     not a member of a Scheduled Caste or Scheduled Tribe to a person who
     belongs to a Scheduled Caste or Scheduled Tribe would attract Section
     3(1)(r) of the Act, 1989 merely because it is committed against a person
     who happens to be a member of a Scheduled Caste or Scheduled Tribe.
     On the contrary, Section 3(1)(r) of the Act, 1989 is attracted where the
     reason for the intentional insult or intimidation is that the person who is
     subjected to it belongs to a Scheduled Caste or Scheduled Tribe. I say so
     because the object behind the enactment of the Act, 1989 was to provide
     stringent provisions for punishment of offences which are targeted
     towards persons belonging to the SC/ST communities for the reason of
     their caste status."

11. Accordingly, having bestowed anxious consideration to the rival
submissions and upon a careful scrutiny of the entire material available on
record, this Court is of the considered opinion that the prosecution has
failed to disclose even a prima facie case attracting the provisions of
Section 323 IPC and Section 3(1)(r) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act. The material collected
during inquiry does not indicate that the alleged words or conduct were
actuated by the caste of the informant or were intended to intentionally
insult or humiliate the informant on the ground that he belonged to a
Scheduled Caste or Scheduled Tribe. Equally absent is any material to
establish that the alleged occurrence took place in a place within "public
view", which is a sine qua non for constituting the offence under the
aforesaid provisions, as explained by the Hon'ble Supreme Court in
Swaran Singh (supra) further reaffirmed in Hitesh Verma & Shajan
Skaria (supra).

12. For the reasons recorded hereinabove, this Court is of the considered
opinion that the essential ingredients constituting the offence under
Section 323 IPC and Section 3(1)(r) of the SC/ST Act are conspicuously
absent from the material collected during investigation, and the
continuance of proceedings for the said offences would amount to an
abuse of the process of law. Consequently, the appeal under Section 14-A
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                                    of the SC/ST Act succeeds in part.

                                    13. Consequently, the summoning order dated 26.02.2021 passed by
                                    Special Judge, SC/ST Act, Basti in Complaint Case No.26 of 2020 (Pappu
                                    vs. Kalam and others) under Sections 147, 323, 427, 504 and 506 IPC and
                                    Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention
                                    of Atrocities) Act, P.S.- Kaptanganj, District- Basti, is modified to the
                                    extent that the appellants stand discharged of the offences punishable
                                    under Section 323 IPC and Section 3(1)(r) of the SC/ST Act.

                                    14. However, sufficient evidence is available on record to proceed against
                                    the appellants under Sections 147, 427, 504 and 506 IPC. Accordingly,
                                    the proceedings against the appellants under the provisions of
                                    Sections 147, 427, 504 and 506 IPC shall continue and be concluded
                                    expeditiously in accordance with law. The trial court shall proceed
                                    uninfluenced by any observation made herein on the merits of the case.

                                    15. With the above observation, the appeal is partly allowed.

                                    16. Registrar (Compliance) is directed to serve a copy of this order by
                                    FAX/e-mail to the court concerned through District & Sessions Judge,
                                    Basti within three days.



                                                                                             (Santosh Rai,J.)
                                    September 9, 2026
                                    Ankit.




Digitally signed by :-
ANKIT VISHWAKARMA
High Court of Judicature at Allahabad