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CRL.M.C. 73/2015 and Crl. M.A. 308/2015
NIDOPAVITRA Petitioner
Through: Mr. Prashant Mendiratta, Advocates
Through: Ms. Rajdipa Behura, SPP for CBI with
Ms. Damini K., Advocates Mr. S.K. Sharma, Mr. Rahul Sharma and Mr. Prayas Aneja, Advocates for R-2 & 3
Mr. Rajender KUmar, Advocate for R-5
CBI Petitioner
Through: Ms. Rajdipa Behura, SPP for CBI with
Ms. Damini K., Advocates
Through: Mr. S.K. Sharma, Mr. Rahul Sharma and
Mr. Prayas Aneja, Advocates for R-2 & 3 Mr. Rajender Kumar, Advocate for R-4
13.09.2018 On 29.01.2014, an unfortunate incident took place in the area of
Lajpat Nagar, New Delhi. A young person named Nido Tania, a
2018:DHC:8593 native of the State of Arunachal Pradesh in the North-East of India had an altercation with one Farman, proprietor of Rajasthan Paneer
Bhandar, an outlet run from A-83, Lajpat Nagar-I, New Delhi. The altercation led to physical assault, it statedly having been settled for the time being upon intervention by some others, but later the injuries proving fatal for Nido Tania who died as a consequence on
30.01.2014.
The First Information Report (no.47/14) was registered on
31.01.2014 by police station Lajpat Nagar which, statedly on account ofpublic outcry, was made over for investigation to Central Bureau of
Investigation (CBI) which registered its own case, it being
RC/01(S)/14.
The investigation having been completed, report under Section
173 of the Code of Criminal Procedure, 1973 (Cr. PC) was submitted by CBI on 02.05.2014 seeking trial of the respondents on the charge for offence punishable under Section 304 Part-II read with Section 34 and 342 of Indian Penal Code, 1860 (IPC) and Section 3(l)(x) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short, "SC/ST Act") as it then stood. The offence under Section 3(l)(x) of SC/ST Act was invoked on the basis of allegations appearing in the evidence that the respondents, accused persons, who at the time of the altercation had used derogatory expression ''chinkf while questioning as to why the deceased and his associates, who were statedly present at the scene, had been allowed to be in Delhi and that they should be sent out ofthe city.
The trial court, while considering the question ofcharge in the
Sessions case (no.25/14), by order dated 25.09.2014, found prima facie case made out for putting the respondents on trial for the offence under Section 304 / 34 IPC, but declined to frame charge under
Section 3(1)(x) of SC/ST Act on the reasoning that there was no evidence to establish that the deceased belonged to a scheduled tribe and further that there was no evidence to show that the person who used the said expression loiew the caste ofthe person addressed.
Both CBI, and the first informant, have felt aggrieved by the above-said decision ofthe trial court declining to frame charge for the offence under Section 3(1)(x) of SC/ST Act and have come up by these petitions tothis court invoking the inherent power under Section
482 Cr. PC and the revisional jurisdiction under Section397 Cr. PC to assail the said decision.
All sides have been heard at length. The record has been perused.
The Special Public Prosecutor representing the CBI, as supplemented by the counsel for the first informant, referred, inter alia, to the supplementary statement dated 06.02.2014 of the witness
Lokum Lulu, also a native of Itanagar (Arunachal Pradesh) to the effect that the deceased and the persons accompanying him were members of a scheduled tribe ofthe State of Arunachal Pradesh.
The learned counsel for the petitioners referred to rulings of the
Supreme Court in Arumugam Servai vs. State ofTamilNadu, (2011) 6
CRL.M.C. 73/2015 «fe Cd. R. P. 248/2015 page3 of 5 see 405 and Manju Devi Vs. Onkarjit Singh Ahluwalia & Ors.,
ORDER
(2017) 13 see 439, their prime submission being that it is not necessary that the person addressed with the derogatory words or remarks should be a member of a scheduled caste or schedule tribe for the offence under Section3(l)(x) of SC/STAct to be constituted. Prior to its Amendment Act of 2015 w.e.f. 2016, the provision contained in Section 3(l)(x) of SC/ST Act read as under
whether the derogatory word ''chinki" relates to a scheduled caste or schedule tribe or not. At the hearing, it was conceded that there is no caste or tribe which has been notified by such name or description. The learned counsel for the CBI, sought to explain that the expression appears to have been coined so as to describe persons with physical features comparable to those from regions like China or Mongolia. She and the counsel for the first informant, thus, themselves, argued that the impugned expression rather than referring to a CRL.M.C. 73/2015 & Crl. R. P. 248/2015 A particular caste or tribe relates to aregion indicating regional-bias or prejudice. The use ofthe impugned expression is prima facie insulting and derogatory, it reflecting racial or regional bias. But its use, though objectionable, cannot be read as within the mischief of the provisions of the SC/ST Act in absence of it being shown to be "C connected to either ascheduled caste or ascheduled tribe. No case having been made out for charge to be framed of offence under Section 3(l)(x) ofthe SC/ST Act, dropping ofthe said offence from the prosecution by the learned additional sessions judge cannot be faulted. The petitions and the application filedtherewith are dismissed.