IMPORTANT POINT
Discharge of accused – Only prima facie case is to be seen, no strict standard of proof while evaluating material to ascertain whether there is a prima facie case against accused is not to be applied.

JUDGMENT

Present appeal is filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the Atrocities Act’ hereinafter) challenging the judgment and order passed below Exhibit 12 in Atrocity Case No.05 of 2022 by the learned Special Judge (Atrocities) Chhota Udepur at Bodeli, dated 20.09.2023, whereby the application preferred by the present applicant-original accused No.8 seeking discharge was partly rejected.

2. It is the case of the applicant that one FIR came to be lodged with the Sankheda Police Station, District Chhota Udepur being C.R.No. 11184009220776 of 2022, for the offences punishable under Sections 379(A), 143, 323, 147 and 149 of the Indian Penal Code, 1860 and Sections 3(1)(R), 3(2)(Va) of the Atrocities Act. It is alleged in the FIR that 16 accused who were named in the FIR have by creating the unlawful assembly assaulted on the complainant, his wife and son as well as one witness Ajaysinh Raj Solanki and had stolen the chain.

3. On setting criminal law in motion, the investigation was carried out and the FIR was culminated into the chargesheet, which was filed before the Competent Court for the aforesaid sections.

4. On filing the chargesheet, the application under Section 227 of the Code of Criminal Procedure, 1973 was preferred below Exhibit 12 by the present applicant, who is accused No.8 seeking the discharge from the alleged offences. Learned trial Court, has partly allowed the aforesaid application and discharged the applicant from the Sections 3(1)(R) of the Atrocities Act and rejected the application qua the other offences. Being aggrieved and dissatisfied with the aforesaid judgment and order dated 20.09.2023, present appeal is preferred.

5. Heard the learned advocate Mr.A.V.Nair for the appellant, learned APP Ms.Monali Bhatt for respondent No.1State and learned advocate Mr.Vijay Nangesh for the respondent No.2.

6. Learned advocate Mr.Nair submits that there was no any evidence, which is collected showing the involvement of the present applicant. It is the case of the prosecution that the applicant was standing along with the other accused, but that would not attract the provisions of Section 149 of the Code of Criminal Procedure, 1973. Learned advocate Mr.Nair submits that when the complainant reached to the place of offence, the scuffle was already started, therefore, it cannot be said that, with a view to that, unlawful assembly was form with common object.

6.1. Learned advocate Mr.Nair submits that even there is no overt act attributed to the present applicant and only allegation made in the FIR is that he was present along with the other accused and instigated to the other accused by saying “maaro...maaro”. Learned advocate Mr.Nair submits that even the ingredients of the Atrocities Act are also not satisfied as there was no any intention on the part of the applicant to commit an offence with a view that complainant is belonging to the particular caste.

6.2. Learned advocate Mr.Nair has relied on the decisions rendered by the Apex Court in case of Vishnu Kumar Shukla and others vs. State of Uttar Pradsh and other (Criminal Appeal No.3618 of 2018), Shashikant Sharma and ors vs. State of Uttar Pradesh and anr. (Arising from Criminal Appeal No.5323 of 2023), and in the case of Tribhuvan Nath vs. State, (Delhi) rendered by the High Court of Delhi and submits that there was no any iota of evidence collected during investigation showing the active participation of the applicant in the offence. By making the aforesaid submissions, the learned advocate Mr.Nair prays to allow this application and discharge the applicant accused from the charges.

7. Considering the submissions made by the learned advocate Mr.Nair for the applicant and the chargesheet papers which is the part of the compilation, this Court deems it fit to consider allegation made in the FIR, which is as under:

7.1. It is the case of the complainant, namely, Manojbhai @ Manojbhai Nathabhai Sola