Kerala High Court
Subash vs State Of Kerala on 8 January, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.MC.No.3931 OF 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
Crl.MC.No.3931 OF 2015
AGAINST THE JUDGMENT IN CP 10/2015 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II,NEYYATTINKARA
PETITIONER:
SUBASH, AGED 45 YEARS
S/O. KRISHNAN,KIZHAKKE PUTHEN VEEDU,
NEAR KANDAN SASTHA TEMPLE,
PUIGODU, CHENGAL VILLAGE
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
(CRIME NO 1425/2014 OF PARASALA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT
2 VISHNU,
S/O. SOMAN, DAS SADANAM, NELLIPAZHANJI,
CHENGAL VILLAGE, THIRUVANANTHAPURAM
R2 BY ADV. SRI.R.T.PRADEEP
SRI.SANTOSH PETER, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
08.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.3931 OF 2015 2
O R D E R
Dated this the 8th day of January 2021 The petitioner is the 2nd accused in C.P No.10/2015 on the file of the Judicial First Class Magistrate Court II, Neyyattinkara. The above case is taken on file by the learned Magistrate for the offences under Sections 294(b), 323, 324 r/w Section 34 IPC and Section 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act').
2. The prosecution case is that on 11.11.2014 at 11.15 am, the accused in furtherance of common intention attacked the informant with stick and called the caste name of the informant and thereby the accused committed the offences alleged. The incident in this case was happened on 11.11.2014. Annexure I FIR is registered alleging the offences punishable under Sections 323 and 324 r/w 34 IPC. Subsequently, after investigation the final report is filed in which the offences under Sections 294(b), 323 and 324 r/w 34 IPC and Section 3(1)(x) of the SC/ST Act are also alleged. This Crl.M.C is filed to quash the entire proceedings in C.P No.10/2015 pending before the committal court.
Crl.MC.No.3931 OF 2015 3
3. Heard the learned counsel for the petitioner, the counsel for the 2nd respondent and the learned Public Prosecutor.
4. The counsel for the petitioner submitted that even if the entire allegations are accepted, the offence under Section 3(1)(x) of the SC/ST Act is not attracted in this case. According to the counsel, the basic ingredients of Section 3(1)
(x) of SC/ST Act is not there evenif the entire allegations in Annexure 2 final report is accepted. The counsel also submitted that the allegations in Annexure 2 final report is that the incident happened in connection with a property dispute. According to the counsel, in such situation, in the light of the Apex Court judgment in Hitesh Verma v. State of Uttarakhand and others (AIR 2020 SC 5584), the prosecution against the petitioner is unsustainable. The counsel submitted that this is a false case foisted against the petitioner and hence the offences under Sections 294(b), 323 and 324 r/w 34 IPC is not prima facie made out. The counsel also submitted that to attract the offence under Section 3(1)(x) of the SC/ST Act, the prosecution has to establish that whoever not being a member of a Scheduled caste or Scheduled Tribe intentionally abuse a member of a Scheduled Crl.MC.No.3931 OF 2015 4 Caste or Scheduled Tribe by caste name in any place within public view. According to the counsel, as per Annexure 2 final report, the caste name which is alleged to be mentioned by the accused is "പറയനന്റെ മമമോനന". But it is an admitted case that the caste name of the defacto complainant is "Sambava".
5. The counsel for the 2nd respondent submitted that this petition under Section 482 Cr.P.C may not be entertained for the simple reason that this is a matter of evidence. According to the counsel, there is specific averments in the final report to the effect that the petitioner committed the offence under Section 3(1)(x) of the SC/ST Act. The counsel submitted that, if there is specific averments in the final report, this Court cannot quash the proceedings invoking the powers under Sections 482 Cr.P.C because it is a matter of evidence. The counsel relied the judgment of the Apex Court in Devendra Prasad Singh v. State of Bihar and another [(2019) 4 SCC 351], in which it is stated that the High Court has no jurisdiction to appreciate the statement of witnesses and record a finding that there are inconsistencies in their statement while exercising the power under Section 482 Cr.P.C to quash criminal proceedings. The counsel also relied the Crl.MC.No.3931 OF 2015 5 judgment of the Apex Court in Mohammed Alauddin Khan v. State of Bihar (2019(6) SCC 107) in which it is stated that the criminal proceedings cannot be quashed on the ground that there is civil dispute. According to the counsel, the name 'Sambava' is usually called to the persons in the lower caste and it is an insult if a person called like that. This is a matter of evidence. The counsel submitted that the defacto complainant was seriously assaulted by the petitioner and they sustained injuries also. From that itself, the intention of the petitioner is clear. The sum and substance of the submission of the 2nd respondent is that the contention raised by the petitioner is to be decided in a trial and this Court cannot consider the same in a petition under Section 482 Cr.P.C.
6. A perusal of Annexure 2 final report will show that the offences alleged against the petitioner and others are under Sections 294(b), 323 and 324 r/w 34 IPC and Section 3(1)(x) of SC/ST Act. As far as Section 294(b), 323 and 324 r/w 34 of IPC is concerned, there are specific averments in the final report. This Court cannot quash the proceedings against the petitioner for the offences under Sections 294(b), 323 and 324 r/w 34 IPC. This is a matter of evidence which is to be Crl.MC.No.3931 OF 2015 6 proved before the trial court.
7. As far as Section 3(1)(x) of SC/ST Act is concerned, the point to be decided is whether the offences is prima facie made out in this case. Section 3(1)(x) of SC/ST Act is extracted hereunder:
"3. Punishments for offences of atrocities -
(1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe-
xxxxx xxxxx xxxxx
(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; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
8. The Apex Court considered the ingredients of the above offence in Hitesh Verma's case (supra). The relevant portion of the judgment of the Apex Court is extracted hereunder:
"8. Against the backdrop of these facts, it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under:
Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, Crl.MC.No.3931 OF 2015 7 indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.
2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them.
When the Scheduled Castes and the Scheduled Tribes try to preserve their self- respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non- Scheduled Tribes has, therefore, become necessary.
9. The long title of the Act is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Crl.MC.No.3931 OF 2015 8 Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
10. The Act was enacted to improve the social economic conditions of the vulnerable Sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined Under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable Section of the society for the reason that they belong to a particular community.
11. It may be stated that the charge-sheet filed is for an offence Under Section 3(1)(x) of the Act. The said Section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under:
3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
12. The basic ingredients of the offence Under Section 3(1)(r) of the Act can be classified as "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view".
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 Crl.MC.No.3931 OF 2015 9 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 No. 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 No. 2 is member of Scheduled Caste.
14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh and Ors. v. State through Standing Counsel and Ors. MANU/SC/7954/2008 : (2008) 8 SCC 435. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an 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, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:
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 "chamar") 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.Crl.MC.No.3931 OF 2015 10
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 view" with the expression "public place". 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.
15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge- sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.
16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per Respondent No. 2 herself. Due to dispute, Appellant and others were not permitting Respondent No. 2 to cultivate the Crl.MC.No.3931 OF 2015 11 land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe." (emphasis supplied)
9. In the light of the above judgment of the Apex Court, the basic ingredients of the offence under Section 3(1)
(x) of the SC/ST Act is as follows:
"i) Intentionally insults or intimidates.
ii) This should be with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."
10. It is an admitted fact that the caste of the defacto complainant in this case is Sambava. A perusal of the final report will show that the allegation in the final report is that the petitioner called the defacto complainant in the following manner:
"എടമോ പറയനന്റെ മമമോനന തമോമയമോളളി നളിനന്നെ കമോണളിച്ചു തരമോനമടമോ"
11. "Parayan" is a separate caste, of course, this caste also is a scheduled caste. A perusal of Section 3(1)(x) of the SC/ST Act will show that, to attract the offence, a person not being a member of a Scheduled Caste or Scheduled Tribe should intentionally insults or intimidates with intent to Crl.MC.No.3931 OF 2015 12 humiliate a member of a Scheduled caste or Scheduled Tribe in any place within public view. Therefore, the main ingredients to attract the offence is intentionally insults or intimidate with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. The admitted case is that there was some property dispute between the families of the petitioner and the defacto complainant. That is the motive alleged in this case. A reading of Annexure 2 final report will show that the intention of the petitioner is to assault the accused and not to insult or intimidate him because he belongs to Scheduled Caste or Scheduled Tribe. This conclusion is strengthened because the first information statement in this case was given by the 2nd respondent after about four days from the date of incident. The alleged incident happened on 11.11.2014 and the first information statement which is a signed statement was given on 15.11.2014. When the first information statement was given, the 2 nd respondent has no case that the petitioner intentionally insults or intimidate him with intent to humiliate him because he belongs to Scheduled Caste or Scheduled Tribe. If that is the case, according to me, prima facie Section 3(1)(x) of the SC/ST Act is not attracted. Therefore, according to me, the continuation of the Crl.MC.No.3931 OF 2015 13 proceedings against the petitioner under Section 3(1)(x) of the SC/ST Act is an abuse of process of law. But I make it clear that the offence under Section 294(b), 323 and 324 r/w 34 IPC is prima facie made out in this case. The petitioner has to face trial before the lower court for the same in accordance to law. The trial court will conduct the trial untramelled by any observation in this case. Therefore, this Criminal Miscellaneous case is allowed in part.
I) The prosecution against the petitioner under Section 3(1)(x) of SC/ST Act based on Annexure 2 final report is quashed.
ii) The prosecution under Sections 294(b), 323 and 324 r/w 34 IPC will sustain and the lower court will proceed with the trial in accordance to law.
iii) What remains now is only an offence triable by the Magistrate Court. Therefore, the learned Magistrate will try to dispose of the case as expeditiously as possible.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab Crl.MC.No.3931 OF 2015 14 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE P1 COPY OF THE FIRST INFORMATION REPORT ALONG WITH FIRST INFORMATION STATEMENT IN CRIME NO 1425/14 OF PARASALA POLICE STATION ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 1425/2014 OF PARASALA POLICE STATION RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE ab