ASHOK KUMAR SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Learned counsel for the appellants submitted that the offences alleged against the appellants are bailable except allegation of offence punishable under SC/ST (POA) Act. As per Section 3 (1) (r) and (s) it is a condition precedent that intentional insult or intimidation and abusing any member of a Scheduled Caste or Scheduled Tribe by caste should take place within public view.

(2.) In the instant matter, neither there is an evidence as to what words were actually used to abuse or intimidate the victim, nor there is evidence that such words were used in public view therefore, no charge for an offence under Section 3(1) (r) and (s) are made out. Rest of the case of the prosecution is pertaining to offence under Section 509 IPC. Therefore, in the present matter appellants be enlarged on bail under Section 438 Cr. P. C. In support, he cited judgment dated 03.08.2007 passed in S. B. Criminal Appeal No. 827/2017 Dr. Pratap Middha v. State of Rajasthan and Asmathunnisa v. State of A. P. AIR 2011 Supreme Court 1905.

(3.) Per contra, learned Public Prosecutor taken me through statement of witnesses recorded by police under Section 161 Cr. P. C., wherein, the witnesses have stated that in the locality on road the incident took place whereupon the witnesses also came out of their houses and saw the incident. Witnesses include one Arun Kumar Tiwari, an independent witness, has stated that appellant was hurling abuses saying that he belongs to lower Caste (Neech Jaat) and have polluted the environment of the locality etc. It is not a case of 'zero' evidence for offence punishable under SC/ST (POA) Act. Hence, as per Section 18 of SC/ST (POA) Act, benefit of Section 438 Cr. P.C , 1973 should not be extended to the appellants.