Karnataka High Court
Shekhar S/O Balakrishna Nelavade vs The State Of Karnataka on 21 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.102061/2021
BETWEEN
1. SHEKHAR S/O BALAKRISHNA NELAVADE,
AGE. 58 YEARS, OCC. HESCOME EMPLOYEE AND
CHAIRMAN OF GANDHIWADA CO-OPERATIVE
HOUSING SOCIETY LTD., HUBBALLI,
PRESENTLY-
R/O. PARASWADI KESHWAPUR,
HUBBALLI, DIST. DHARWAD.
2. SHRINIVAS S/O VENKATARAO CHARAKU,
AGE. 56 YEARS, OCC. RAILWAY EMPLOYEE
R/O. NEHRU NAGAR, HUBBALLI,
DIST. DHARWAD.
3. PRABHAKAR S/O RAMACHANDRA PAWAR,
AGE. 66 YEARS, OCC. SOCIAL WORKER
R/O. NEHRU NAGAR, HUBBALLI,
DIST. DHARWAD.
4. RAMESH S/O GOVINDSWAMI MODALIYAR,
AGE. 60 YEARS, OCC. PRIVATE SERVICE,
R/O. NEHRU NAGAR, HUBBALLI,
DIST. DHARWAD.
5. MURALIDHAR S/O. GOVINDAPPA RONAD,
AGE. 58 YEARS,
OCC. BUSINESS
2
R/O. NEHRU NAGAR, HUBBALLI,
DIST. DHARWAD.
...PETITIONERS
(BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
AND :
1. THE STATE OF KARNATAKA
REP. BY POLICE STATION
KESHWAPUR POLICE STATION
HUBLI, THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-580011.
2. CHANDRAKANT S/O KRISHNA YADAV
AGE. 52 YEARS, OCC. BUSINESS,
R/O. H.NO.368/1, 2ND CROSS,
RAM NAGAR, HUBBALLI,
DIST. DHARWAD-580020.
..RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C
SEEKING TO SET ASIDE THE ORDER DATED 21.09.2021
PASSED IN SPL.SC/ST. CASE NO.32/2018 ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS AND SPL. JUDGE,
DHARWAD AS PER ANNEXURE-A OR THE OFFENCES
PUNISHABLE U/S. 143, 147, 504, 506, 354 R/W SECTION 149
OF IPC R/W SECTION 3(1) (R) (S) AND 10 AND 11 OF SC/ST
(PREVENTION OF ATROCITIES ACT) AND ALLOW THE INTERIM
APPLICATION FILED U/S. 227 OF CR.P.C FILED BY THE
PETITIONERS AS PER ANNEXURE-N.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioners are before this Court calling in question the proceedings in Special SC/ST Case No.32/2018 registered for the offences punishable under Sections 143, 147, 504, 506 and 354 read with Section 149 of IPC read with Section 3 (1)(R)(S) and 10 and 11 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard Sri Shriharsh A.Neelopant, learned counsel appearing for the petitioners and Sri Ramesh Chigari, learned HCGP appearing for respondent No.1-State.
3. Brief facts leading to filing of the present petition as borne out from the pleadings are as follows :
The petitioners are members of Gandhiwada Co-
operative Housing Society Ltd., Hubballi. The 2nd respondent runs a school as a tenant in the premise owned by the Co-operative Society. Seeking eviction of the 2nd respondent who ran the school in the place belonging to the petitioners-co-operative Society had instituted civil 4 proceedings seeking such eviction. The said suit came to be decreed. The result of the decree of the suit was eviction of the 2nd respondent-complainant. On the strength of the order of competent Court and also taking Police protection, the petitioners broke open the lock of the school, which by then belonged to the petitioners in view of the decree granted by the Civil Court. Based upon the said incident, the 2nd respondent, who had lost the case against the petitioners before the Civil Court, registers a complaint for the offences punishable under the provisions of the atrocities Act alleging that the petitioners have hurled abused against the complainant either in a public or in a place of public view and have become violates of the provisions of the Act. Therefore, the offence is publishable thereunder.
4. The afore narrated facts are not in dispute. The petitioners did not have themselves indulged in the act of breaking open the lock of the school. But were executed the lawful orders passed by the competent Court. The 2nd 5 respondent having lost the case of eviction against the petitioners, in order to wreck vengeance without there being any semblance in evidence for invocation of the provisions of the Act registers the complaint. The somewhat similar circumstances, the Hon'ble Apex Court in the case of Hitesh Verma vs. State of Uttarakhand and Another, reported in (2020) 10 SCC 710 has held as follows :
"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 v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] . 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 6 offence since it is not in the public view (sic) [Ed. :
This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"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."] . 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. 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 7 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 in original)
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 [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] , 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 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding 8 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, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.
24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The appeal is disposed of in the above terms."
5. In the light of the Judgment of the Hon'ble Apex Court considering the very provisions of the Act. The backdrop as narrated herein above of the allegations levelled cannot be burst aside. Therefore, the proceedings instituted are without doubt one to wreck vengeance against the petitioners. In these circumstances, if the trial is permitted to continued that too for the offences alleged against the petitioners, it would be an abuse of the process of the law and result in miscarriage of justice.
6. The Trial Court which considered the discharge application of the petitioners has not considered these facts 9 and has erred in law in rejecting the discharge application of the petitioners. Therefore, the order of rejection of the discharge application of the petitioners is erroneous and unsustainable.
7. For the aforesaid reasons, the following :
ORDER
(i) The criminal petition is allowed.
(ii) The order rejecting the discharge application dated 21.09.2021 passed in Special SC/ST Case No.32/2018 by the II Additional District and Sessions and Special Judge, Dharwad stands quashed.
(iii)The entire proceedings initiated against the petitioners in Special SC/ST Case No.32/2018 by the II Additional District and Sessions and Special Judge, Dharwad stands quashed qua petitioners.
SD JUDGE CKK