Delhi High Court
Daya Bhatnagar And Ors. vs State on 1 January, 1800
Equivalent citations: 109(2004)DLT915
JUDGMENT S.K. Agarwal, J.
1. This reference has been made consequent upon a difference of opinion on the interpretation of the expression 'public view' in Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act or SC/ST Act'), in the Division Bench of this Court, consisting of Hon'ble Mr. Justice B.A. Khan and Hon'ble Mr. Justice V.S. Aggarwal (as His Lordship then was), while hearing the petition seeking quashing of the First Information Report (for short 'FIR') under Section 3(1)(x) of the Act against them. Brief resume of facts, necessary for appreciation of the controversy, are as follows:
2. Petitioners and complainants are neighbours residing in the same complex at Vikaspuri Extension, Delhi. On 14.3.2001 there was some dispute amongst them, which resulted in registration of two cross cases on 28.3.2001. One under Section 3(1)(x) of the Act against petitioners and other under Sections 354/34 of the Indian Penal Code, against the complainant and some witnesses of earlier case. Prosecution case is that on 14.3.2001 Babu Lal (since deceased) resident of flat No. 2-A, Vikaspuri lodged a report to the police complainant that at about 7.15 p.m. he was sitting in the adjoining flat No. 1A along with Rakesh Kumar, Dr. C.P. Kohli, Rakesh Nagpal, N. Kukreja and H.C. Saini residents of flat Nos. 1A to 6A, when Mrs. Veena Das, Madhu Srivastava and Prem Shankar Madan residents of flat Nos. 3D, 3C and 3B of Pocket-A (petitioners 9, 11 and 15), came there and called him "Chura Chamar Babu Lal Chura Chamar" (hereinafter 'the offending words') without any reason. This complaint was signed by Babu Lal, as well as four witnesses. On 15.3.2001 (next day), Babu Lal's wife Mrs. Meena Kumari lodged another report alleging that on 14.3.2001 at about 7.20 p.m., she was present at her flat, along with her children, when a group of 25-30 ladies came there and banged the door, saying "Churi Chamari come out of the house, you are not up to our standard and you cannot live in this block". She was humiliated and insulted on the basis of her caste; she became unwell and had to go to the doctor to take medicine. Surnames of fourteen ladies of that group were mentioned in the complaint, along with their respective flat numbers (petitioners 1 to 14). Babu Lal, thereafter sent reminders to the senior police officials on 15th and 20th March, 2001 praying for suitable action. On 28th and 29th March, 2001, he also sent a telegram and then a complaint to the Commissioner of Police, alleging that he was being pressurised to withdraw his complaint and was threatened of false implication in some cases.
3. On 19.3.2001, Mrs. Prabha Malhotra, Veena Das, Anita Gupta and Madhu Srivastava (petitioner Nos. 6, 9, 10 and 11) had also given a report to the police, alleging that on 14.3.2001 they had gone to the house of Babu Lal, for collecting monthly subscription, as he was not paying the same for the past few months; Babu Lal came out in underwear and at his asking they went inside the house where they found Mr. Kohli, Nagpal and Saini (three of the witnesses mentioned in Babu Lal's complaint, referred above), taking liquor. It is alleged that Babu Lal held Veena Das from her blouse, laughed and started pulling her towards him; when Mrs. Srivastava came to her rescue, Nagpal pushed her towards him saying "it was a good piece'; Kohli then pushed Prabha Malhotra and started kissing the complainant.
4. On the above three reports, on 28.3.2001, two cases were registered at Police Station Tilak Nagar. The first case under Section 3(i)(x) of the Act on the reports of Babu Lal dated 14.3.2001 and his wife Meena Kumari dated 15.3.2001 against the petitioners vide FIR No. 14/2001 which is sought to be quashed and the second under Sections 354/34, IPC on the report of petitioners 6, 9 and 11 against Babu Lal and the witnesses mentioned in his complaint vide FIR No. 144/2001. Fifteen petitioners by a joint petition sought quashing of FIR No. 143/2001 under Section 3(i)(x) of the Act praying that ingredients of the offence are not made out and registration of FIR is an abuse of the powers vested in the police.
5. Hon'ble Justice V.S. Aggarwal (as His Lordship then was) after exhaustively dealing with facts and the law referred to the meaning of the words "public" and "view" as explained in Corpus Jurisdiction Secumdum, Black's Law Dictionary (6th edition) page 1568, Stroud's Judicial Dictionary of Words and Phrases (6th Edition Volume 3) and observed that the expression "public view" does not necessarily mean that large number of persons should be present to constitute public; and that even when one or two members of the public hear and view the offending words being used, offence would be made out, provided other ingredients of section are satisfied. It was held:
"......In other words, it is patent that, therefore, to bring a matter within the scope and ambit of expression "public view" firstly the words must be uttered at a place which is within public view and it is unnecessary that the number of public persons herein should be more than one. Even if one or two members of the public hear and view, as the case may be, the same and the other ingredients of section are satisfied, the case would fall within the ambit of said provision."
6. The learned Judge thereafter found that in the report of Meena Kumari wife of Babu Lal, basic ingredient of "public view" for the offence under Section 3(i)(x) of the Act is not made out as the offending words were not used, in the presence of any public person and her complaint is liable to be quashed. But, on the report of Babu Lal it was held that the offending words were used in the presence of four persons, named in the complaint, therefore, requirement that the offending words should be used within "public view" is satisfied and the Trial Court was directed to proceed with the trial.
7. However, Hon'ble Justice B.A. Khan while interpreting the expression "public view" in Section 3(i)(x) of the Act went a step further. Learned Judge after referring to the principles governing interpretation of statutes as laid down by the Supreme Court in RMD Chamarbaugwalla v. Union of India, and Commissioner of Income-tax, Orissa v. N.C. Budharaja and Company and Anr., , held that the report of Babu Lal is also liable to be quashed, inter alia, on. the grounds; (i) that persons present with Babu Lal were his associates, friends, participating members and were not independent persons so as to constitute "public" within the meaning of Section 3(i)(x) of the Act, particulary when these four witnesses are accused in the counter FIR No. 144/2001; and (ii) that even otherwise, Babu Lal's complaint would not survive after his death as it would be farcical to allow it to continue and to subject the accused to rough and tumble of protracted Court process which could amount to its abuse and result in miscarriage of justice.
8. On the above difference of opinion, the learned Court framed the following two questions and placed the matter before Hon'ble the Chief Justice for an appropriate reference under the Rules:
"(1) What is the correct and real meaning of expression "public view" occurring in Section 3(i)(x) of SC/ST (POA) Act, 1989 and whether it would include the view of the accused in a counter FIR?
(2) Whether FIR No. 143/2001 arising out of complaint of Babu Lal (deceased) would survive or was to be quashed?"
9. I have heard learned Counsel for the parties and have been taken through the record. Mr. D.C. Mathur and Mr. S.S. Gandhi, Senior Advocates and Mr. Sushil Bajaj, learned Counsel appearing in the connected petitions also rendered valuable assistance.
10. What is the true meaning and scope of the expression "public view" used in Section 3(i)(x) of the Act? Is it necessary that the derogatory or humiliating words to constitute an offence, should be uttered in the presence of the independent persons? Or would it be sufficient, if these are used, in the presence of any one or two members of the public, whether they are relatives, friends, associates or otherwise connected with the complainant? These are questions which require determination.
11. Law with regard to the interpretation of the statute is well settled by several authoritative pronouncements of the Supreme Court. While interpreting any statute, the aspects which need consideration are (i) what was the law applicable before the Act was passed; (ii) what was the mischief or the defect for which the law earlier did not provide; (iii) what was the remedy the Legislature provided; and (iv) the reason for the remedy. The Court is required to adopt a construction which suppresses the mischief and advances the remedy and to add force, life, cure and remedy pitfalls, if any, according to the true intent of the makers of the Act. For this, reference may be made to seven-Judge Bench decision of the Supreme Court in Bengal Immunity Co. Ltd. v. State of Bihar, ; and Directorate of Enforcement v. Deepak Mahajan, .
12. It is also well settled that FIR can be quashed, if the allegations taken in entirety at their face value, prima-facie do not constitute any offence; if the allegations are absurd or inherently improbable, if there is any legal bar to the institution of such proceedings; and if the criminal proceeding is manifestly attended with mala fide and/or maliciously instituted with ulterior motive for wreaking vengeance, etc. In this regard reference may be made to the principles laid down by the Supreme Court in State of Haryana v. Bhajan Lal, 1992 Suppl. (1) SCC 335, and several other judgments.
13. It would be helpful to re-call the procedure required to be adopted where the Judges of the Court of appeal are equally divided. It is provided in Section 392, Cr.P.C. The Supreme Court in Union of India v. B.N. Ananthapadamanabhiah, , while approving the law laid down in its earlier decision in Hethubha v. State of Gujarat, , laid down that the third Judge could not only deal with the difference between the two learned Judges but could also deal with the whole case. The same principle would apply here.
14. Now, the state is reached to reproduce Section 3(i)(x) of the Act, containing the words 'public view', which call for an interpretation. It reads:
"3. Punishments for offences of atrocities--
(1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,--
(i) to (ix). xxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
(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:
(xi to (xv) xxxxxxxxxxx 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.
(2) xxx xxx xxx"
15. Basic ingredients for the offence under Clause (x) of Sub-section (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; (b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present. I find myself in agreement with the following observations of learned brother Mr. Justice. B.A. Khan while expounding the ingredients of the offence:
>"If the accused does not know that the person whom he was intentionally insulting or intimidating or humiliating is a member of SC or ST, an offence under this section would not be constituted. Similarly, if he does not do all this at any place within "public view", the offence would not be made out. Therefore, to attract an offence under Section 3(i)(x), an accused must know that victim belongs to SC/ST caste and he must intentionally insult, intimidate and humiliate him/her at a place within "public view". The place need not be a public place. It could be even at a private place provided the utterance was made within "public view"."
16. The difficulty only is as of what is the true and correct import of the expression "public view" which is used by the Legislature in contra distinction to the expression "private view". The 'view' here means sight or vision and hearing. Only meaning of the word "public" is left to be found in the context in which it is used.
17. The expression "public" is a poli-morphus word, which assumes different colours in different context. Judges and jurists have so far not found it possible to work out a complete logical definition of the words "public" universally applicable to all situations. Corpus Jurisdiction (page 844) defines "public" as under:
"PUBLIC AS A NOUN does not have a fixed or definite meaning; it is a convertible terms.
In one sense, the "public" is everybody; and accordingly "public" has been defined or employed as meaning the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or country; the people; the whole body politic; the whole body politic, or all the citizens of the state.
In another sense the word does not mean all the people, or most of the people, nor very many of the people of a place, but so many of them as contradistinguishes them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighborhood.
'B. As an adjective--1. In General. It is said to be very difficult, if not impossibly to frame a definition for the word "public" that is simpler or clearer than the word itself; a convertible term, used variously, depending for its meaning upon the subjects to which it is applied. It has two proper meanings."
18. The SC/ST Act was enacted as the laws like the Protection of Civil Rights Act, 1955 and provisions of the Indian Penal Code was found inadequate to arrest the commission of atrocities against members of Scheduled Castes and Scheduled Tribes. A special legislation to check and deter crimes committed by non-Scheduled Castes and Scheduled Tribe members thus became necessary. The statement of objects and reasons of the Act reads:
"Despite various measures to improve the socio-economic 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, 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 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 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 the mass, killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes."
19. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub-clauses (i) to (xv) of Section 3(i) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The Legislature required 'intention' as an essential ingredient for the offence of Insult', "intimidation' and "humiliation' of a member of the Scheduled Casts or Scheduled Tribe in any place within "public view'. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(i)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded. I am again in agreement with the interpretation put on the expression "public view" by learned brother Mr. Justice B.A. Khan. The relevant portion of his judgment reads as under:
"I accordingly hold that expression within 'public view' occurring in Section 3(i)(x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used."
20. In the light of the above discussion, one part of the first question under reference, namely, "What is the correct and real meaning of expression "public view" occurring in Section 3(i)(x) of SC/ST (POA) Act, 1989," stands answered.
21. The second part of the above question; "whether it would include the view of the accused in the counter FIR?" still remains to be addressed. In my considered view a witness cannot be termed to be 'interested', 'biased' or 'partial' merely because he is made an accused in the counter FIR, unless attending circumstances, prima facie, suggest the same, like simultaneous lodging of cross FIRs, where both the parties are injured or where there is previous enmity or other strong motive for false implication. Lodging FIR against the complainant or the witnesses of the offence under Section 3(i)(x) of the Act, at the belated stage would not be enough. Otherwise whenever an offence is alleged to have been committed under Section 3(i)(x) of the Act, the accused would be always eager to get a counter FIR registered against the complainant or the witnesses by hook or by crook, to defeat the earlier FIR against him. This cannot be permitted in law.
22. The above interpretation finds support from the following decisions of this Court in (i) Surinder Nath and Anr. v. State of Delhi and Anr., (Crl.W. No. 687/ 2001), decided on 26.7.2002. Petitioner was working as an accounts officer. On the report of two employees of the same department, FIR under Section 3(i)(x) of the Act was registered. The employees alleged that when they approached the petitioner for sanction for withdrawal of money from their Provident Fund account; he and the Superintendent working under him refused to entertain their application, on the ground that the same was not forwarded by the concerned office in charge; when they raised objection, petitioner allegedly used humiliating words 'Chamar Ki Bachi' against them. On these facts, it was held that ingredient of the offence was not made out, as it was not committed in "public view". The Division Bench held that the FIR was liable to be quashed; (ii) In Ram Nath Sachdeva v. Government of NCT of Delhi, , the complainant along with one Shashi Pal went to the house of accused persons where the offending words were allegedly used. The FIR was quashed. It was held that alleged offending words were not used in the "public view". (Justice V.S. Aggarwal, however, found himself in disagreement with this view); and (iii) In Mukesh Kumar Saini and Ors. v. State (Delhi Administration), , there was a fight between the two groups while one Mukesh was being dragged, he alleged that the accused person uttered humiliating words. It was held that neighbours had not arrived by then, therefore, ingredient of 'public view' were not made out and bail was granted.
23. Applying the above principles to the facts at hand, here there is nothing to even prima facie show that the four witnesses mentioned in the complaint had any business, or commercial, or any other link with complainant. Or that they had other vested interest, so as to deprive them of the status of being independent persons within the meaning of the expression "public view". From the mere fact that witnesses were present at the house of the complainant when the offending words were allegedly used, by itself, is not enough to conclude that they were complainant's associates or not independent persons. No such presumption can be raised. This could be probed during investigation, and can be shown during the trial. It may be recalled at the risk of repetition that on 14.3.2001, after the incident, police reached the spot. When the FIR was lodged by Babu Lal, it was also signed by four other persons, who are witnesses. Babu Lal sent several reminders to the police apprehending that he was being threatened of false involvement in some case, if he does not withdraw his complaint. Mrs. Prabha Malhotra, Mrs. Veena Das, Mrs. Anita Gupta and Mrs. Madhu Srivastava, (petitioner Nos. 6, 9, 10 and 11) respectively, submitted a complaint to the police for the first time, on 19.3.200 alleging that on 14.3.2001 (five days earlier), the complainant Babu Lal and the witnesses in the earlier case had outraged their modesty and a counter case under Sections 354/34, IPC was registered by the police on this complaint only on 28.3.2001. Thus, neither this delayed FIR nor the mere presence of these witnesses at the house of Babu Lal, prima facie, are enough, to categorize them as interested and biased, so as to exclude them from being the 'public', within the meaning of the expression "public view" under Section 3(i)(x) of the Act.
24. The other ground on which FIR lodged by Babu Lal (deceased), has been ordered to be quashed by learned brother Justice A.B. Khan, finds its roots in the second question under reference: "whether FIR No. 143/2001 arising out of complaint of Babu Lal (deceased) would survive or was to be quashed?" Petitioners and complainant are living in the same complex. It appears that there was some quarrel amongst them on 14.3.2001. Police was called and Babu Lal lodged the report. It was argued that Babu Lal, unfortunately, died in an accident in the same complex. True, the primary evidence in the case would have been his statement, which would not be available during trial. But there are four other witnesses mentioned in the complaint itself, namely Dr. C.P. Kohli, Rakesh Nagpal, N.N. Kukreja and H.C. Saini. After investigation challan has been filed and cognizance has been taken. The question as to what value can be attached to their statements cannot be gone into at this stage and no case is made out for quashing the FIR on this ground as well.
25. To conclude, I am in complete agreement with the interpretation put by Hon'ble Mr. Justice B.A. Khan to the expression "public view" in Section 3(i)(x) of the Act. But, with great respect to the learned brother Justice Khan, I have not been able to persuade myself to agree to the conclusion reached by him on facts. "Public view" envisages that public persons present there should be independent, impartial and not having any commercial or business relationship, or other linkage with the complainant. It would also not include persons who have any previous enmity or motive to falsely implicate the accused persons. However, merely because a witness, who is otherwise neutral or impartial and who happens to be present at the house of the victim, by itself, cannot be disqualified. Again, lodging of the counter FIR by the accused against witnesses of the earlier case would not ipso facto deprive them of their status as neutral witnesses, unless the attending circumstances suggest otherwise, like simultaneous lodging of cross FIRs where both parties are injured. Further, FIR also cannot be quashed because the complainant has died. Here the prosecution case is based not only on his statement but also the statement of four other persons. In short, each case would depend on its own facts and no strait-jacket formula of universal application can be laid down. In view of the above, no case for quashing of the FIR, at this stage, is made out and the matter should be left to be dealt with by the Trial Court where the challan has been filed and cognizance taken. More so, when on the report of some of the petitioners, in the counter case under Sections 354/34, IPC challan against the witnesses has also been filed.
26. No other point was urged. For the foregoing reasons, the petition for quashing the FIR is liable to be dismissed. The reference stands answered accordingly. Any observation made herein, would not affect merits of the case during trial in any manner.
27. Let the matter be placed before the appropriate Bench, subject to the orders of the Hon'ble the Chief Justice, for further orders on 13th February, 2004.