Calcutta High Court (Appellete Side)
Parimal Maity @ Parimal Maiti & Anr vs State Of West Bengal on 24 February, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA CRIMINAL MISCELLANEOUS JURISDICTION APPELLATE SIDE Present:
Hon'ble Mr. Justice Joymalya Bagchi C.R.M. 16138 of 2013 Parimal Maity @ Parimal Maiti & Anr.
Vs.
State of West Bengal
For the petitioners : Mr. Navanil De, Adv.
For the State : Mr. Ayan Bhattacharyya, Adv.
Heard on : 24.02.2014
Judgement on : 24.02.2014
Joymalya Bagchi, J. : This reference has been made in the light of divergence of opinion between two Hon'ble Judges of this Court on the issue of maintainability of the instant application for anticipatory bail in view of the statutory bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to the Act of 1989).
Point of difference :‐ Banerjee, J while holding that the application was not maintainable opined as follows :‐ "In the instant case, in the complaint it is alleged that the incident took place outside the house of the complainant, which appears to be a place within public view. Whether the incident actually occurred at the place alleged or at any other place outside public view is a matter of investigation. It is not open to a Court deciding an application under Section 438 of the Indian Penal Code to indulge in critical analysis of the evidence on record. It is immaterial that the contents of the GD entry are not before us since investigation has been ordered under Section 156(3) of the Cr.P.C of a complaint in writing, which we have perused. In deciding an application under Section 438, for anticipatory bail, the scope for appreciation of evidence and analysis of materials on record is limited. This Court is not to indulge in critical analysis of the materials on record.
In view of specific bar of Section 18 of the 1989 Act, I am not inclined to entertain the application for anticipatory bail."
On the other hand, Chatterjee, J. differed as follows:
"I respectfully differ with my Learned Senior as to her observation. I have taken note of Section 3 Sub‐clause (x) and also Section 18 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. I have also taken note of the decision of the Apex Court as reported in (2012)3 Supreme Court Cases (Cri) 1062.
As per Section 3(x) of the said Act such offence must be committed within public view. I have gone through the case diary. There is no statement of any outsider to convince this Court even prima facie, that they heard such insulting languages used by the accused persons. Nor there is any whisper in the F.I.R. as to who was present in the house when the alleged derogatory remarks were uttered.
Unfortunately in the case diary there is also no mention regarding contents of the G.D. entry No. 113 dated 03‐10‐2012 of Moyna Police Station. This G.D. entry is the earlier piece of information and this Court would have got real picture of the crime had it been before us.
Thus it is my considered view that no prima facie case of any offence has been made out in respect of Section 3(I)(x) of the said Act and accordingly, I am of the view that this is not a fit case to reject the prayer for anticipatory bail."
Hence, the point for difference is whether in the factual matrix of the instant case the statutory bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is attracted or not. Opinion :‐ Section 18 of the Act of 1989 reads as follows :‐ "18. Section 438 of the Code not to apply to persons committing an offence under the Act.‐ Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."
While interpreting the aforesaid statutory bar in entertaining application for anticipatory bail with regard to offences under the said Act, the Apex Court in Vilas Pandurang Pawar and Anr. vs. State of Maharashtra & Ors., reported in (2012)3 SCC (Cri) 1062, held as follows:‐ "Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Schedule Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence." (emphasis supplied) The aforesaid ratio makes it patently clear that in the event of specific averment in the First Information Report with regard to insult or intimidation by the accused with the intent to humiliate by calling with caste name of the aggrieved person, the statutory bar is attracted. It is impermissible for the Court in such cases to critically examine such allegations by evaluating the materials on record.
The First Information Report in the instant case categorically states that the accused persons came in front of the house of the victim and abused them in filthy language and also insulted them by calling their caste name, namely, 'Dhopa' in order to humiliate them.
Chatterjee, J in His Lordship's differing opinion had entered into an analysis of the aforesaid allegations and had come to a finding that no offence under section 3(i)(x) of the Act of 1989 is made out as there is no statement of any outsider recorded during investigation that they heard such insult/intimidation being uttered by the petitioners and that there is no material to show as to who were present at the time of commission of the alleged offence in the house of the defacto‐complainant. Reference has also been made to non‐production of an earlier general diary relating to the alleged incident.
With utmost humility, I am unable to concur with such opinion of Chatterjee, J.
Section 3(1)(x) of the Act of 1989 reads as follows :‐
3. Punishments for offences atrocities.‐ (1)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,‐ xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view"
Essential ingredients of the aforesaid offence may therefore be summarized as follows :
(a) The accused is not a member of a Scheduled Caste or Scheduled Tribe;
(b) The accused intentionally insults or intimidates a member of a Scheduled Caste or Scheduled Tribe;
(c) Such act is committed with the intention to humiliate the victim;
and
(d) at a place within public view.
Mr. De, learned counsel appearing for the petitioners strenuously argued that the alleged insult or intimidation in the instant case was not held out in a place within public view as no material has been collected in the course of investigation that any outsider had heard such insult/intimidation. He accordingly, submitted that the allegations in the First Information Report did not disclose the aforesaid offence and therefore the application for anticipatory bail was maintainable.
Mr. Bhattacharyya, learned counsel appearing for the State, on the other hand, submitted that the uncontroverted allegations in the First Information Report disclosed the ingredients of the aforesaid offence. He submitted referring to the FIR that the alleged incident occurred in front of the house of the defacto‐ complainant. Therefore, it brooks no controversy that the insult/intimidation was held out by the accused persons in a place within public view. He relied on a number of authorities in support of such contention.
In Swaran Singh & Ors. Vs. State, (2008) AIR SCW 5758 the Apex Court while dealing with the aforesaid offence interpretated the expression " in any place within public view". as follows :‐ "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a `Chamarʹ) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression `place within public viewʹ with the expression `public placeʹ. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies." (emphasis supplied) In the self‐same report the Apex Court however proceeded to quash the first information report in respect of one of the accused namely, Swaran Singh, on the premise that the offensive words were not used by the said accused within public view. The Court held as follows :
"34. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant no.1."
One can therefore conclude that an accused can be said to have committed the aforesaid offence if the insult/intimidation is made in a place within public view or even if the same is made inside a private building some members of the public were present at the place of occurrence when the offence was committed.
In the instant case, the uncontroverted allegations in the first information report show that the offence was committed in front of the house of the defacto‐ complainant. Hence, there cannot be any iota of doubt that the offence was committed in a place within public view.
It is nobody's case that the insult/intimidation was made within the confines of a private building or room which was not exposed to public view.
If that is so, then the question as to whether such insult/intimidation was made in presence of any member of the public i.e. outsiders become irrelevant. Such circumstance assumes importance only when the alleged insult/intimidation is held out in the confines of a private building or room and not open to public view. Such is not the case here.
Accordingly, it is erroneous to hold that the ingredients of the aforesaid offence is not disclosed in the facts of the case as the materials collected in the course of investigation do not show that outsiders had heard such insult/intimidation.
It is pertinent to mention that materials collected in the course of investigation including the caste certificate of the victim show that the latter is a member of the scheduled caste community while the petitioners do not belong to any such caste or tribe.
Mere absence of such a fact in the first information report (which is not expected to be an encyclopedia) is no ground to hold that the offence punishable under section 3(1)(x) of the Act of 1989 is not disclosed particularly when the same has transpired in the course of investigation. [see. Ashabai Machindra Adhagale Vs. State of Maharashtra & Ors. (2009) 2 SCC (Cri.) 20] There is a gulf of difference in examining the issue of demur or bar on the maintainability of a plea and the justification to grant the same. While examining the bar as to maintainability of a plea for anticipatory bail under the Act of 1989, the Court is to confine itself to a bare inspection of the uncontroverted allegations in the first information report and/or materials collected in the course of investigation to prima facie satisfy itself as to whether the ingredients of the offence are disclosed or not. At that stage it is beyond the scope of the Court to go into a critical analysis of the truthfulness or reliability of such allegations either by seeking corroboration from independent witnesses or by comparing it with a purported earlier statement of the defacto‐complainant. While such enquiry may be relevant while examining the justification to grant the relief, it is wholly impermissible in determining the issue of maintainability of the application in the light of the statutory bar under law.
Conclusion:‐ For the aforesaid reasons, I am humbly concur with the view of Banerjee, J, that the instant application for anticipatory bail is not maintainable in view of the statutory bar under Section 18 of the Act of 1989. The application is, accordingly, dismissed as not maintainable.
Case diary be returned.
(Joymalya Bagchi, J.) P.A. to J. Bagchi. J.