Gujarat High Court
Minaben Laxminarayan Joshi vs State Of Gujarat on 5 May, 2023
R/CR.MA/7573/2014 CAV JUDGMENT DATED: 05/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7573 of 2014
With
R/CRIMINAL MISC.APPLICATION NO. 8137 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MINABEN LAXMINARAYAN JOSHI & 3 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR MAULIN G PANDYA(3999) for the Applicant(s) No. 1,2,3,4
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS E.SHAILAJA(2671) for the Respondent(s) No. 2
MR. K.M. ANTANI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 05/05/2023
COMMON CAV JUDGMENT
1. Since the challenge in both these applications are to the
selfsame FIR, those were heard analogously and are being
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disposed of by this common judgment and order.
2. At the outset, Mr. Sandip Patel, the learned counsel
appearing for the applicant-original accused No.1 in Criminal
Misc. Application No.8137 of 2014 submits that he does not
want to press the said application qua the applicant-accused
No.1 so far as the offence under the provisions of the Indian
Penal Code are concerned. Accordingly, Criminal Misc.
Application No.8137 of 2014 is disposed of as not pressed qua
the applicant-original accused No.1, namely, Laxminarayan @
Laxmikant Misarilal Joshi so far as the offence under the
provisions of the Indian Penal Code are concerned. The
investigation shall proceed further so far as the offence under
the Indian Penal Code are concerned.
3. For the sake of convenience, Criminal Misc. Application
No.7573 of 2014 is treated as the lead matter.
4. By this application Under Section 482 of the Code of
Criminal Procedure, 1973 (for short "the Code"), the
applicants-original accused Nos.2 to 5 seek to invoke the
inherent powers of this Court praying for quashing of the first
information report being C.R. No.I-146 of 2014 registered with
the Naranpura Police Station, Ahmedabad for the offence
punishable under Sections 354(A), 406, 420, 294(b), 506(1),
507 read with Section 114 of the Indian Penal Code and
Section 135(1) of the Gujarat Police Act as well as Section 3(1)
(x) of the Schedule Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short "the Act")
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5, The facts, giving rise to the present application may be
summarized as under;
5.1 On 15th May, 2014, the complainant lodged a complaint
alleging that almost two years ago, she read an advertisement
in the daily newspaper regarding the work of astrologer being
carried out by the accused No.1. Therefore, as the complainant
was not getting married, she went to the residence of accused
No.1, namely, Laxmikant M. Joshi to know about her future,
and upon discussion with him, the accused No.1 told her that
to get out from such problem, she has to perform some rituals,
for which, she has to pay Rs.3,00,000/- to the accused No.1.
Therefore, keeping trust upon him, the complainant paid the
said amount of Rs.3,00,000/- to the accused No.1 in
installments. However, despite making such payment, as she
could not get any result, she demanded back the said amount,
due to which, disputes have been cropped up between the
complainant and the accused No.1.
5.2 It is alleged in the complaint that on 14 th May, 2014, she
went to the house of the accused No.1 along with her friend,
and at that point of time, the accused No.1 started abusing her
by uttering words against her caste and also made an assault
upon her. At that time, the wife of the accused No.1 was also
there who was also abusing her. Thereafter, one another
person came there, who might be the son or the nephew of the
accused No.1, and he also started abusing her and threatened
to kill her. The accused No.1 also made a phone call to his
daughter and son-in-law. They also came there and all these
five accused persons, altogether, started abusing her and
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threatened to kill her.
5.3 Thereafter, the complainant went to the police station
and lodged a complaint against all the aforesaid accused
persons. The accused Nos.2 to 4 happen to be the wife, son,
daughter and son-in-law respectively of the original accused
No.1 who have filed the Criminal Misc. Application No.7573 of
2014, whereas the original accused No.1 has filed a separate
petition being Criminal Misc. Application No.8137 of 2014.
6. Learned advocate Mr. Maulin Pandya appearing for the
applicants in Criminal Misc. Application No.7573 of 2014 has
submitted that the first information report registered against
the applicants herein is absolutely illegal, frivolous, vexatious
and bogus one and filed with a view to abuse the criminal
machinery against the applicants. Mr. Pandya has further
submitted that if the allegations levelled against the accused
persons in the first information report are to be read with great
scrutiny, even though, prima facie, no case is made out
against the present applicants. Learned advocate Mr. Pandya
has read the entire complaint and vehemently submitted that
in the first portion of the FIR, the entire sequence of events of
incident and allegations are levelled against Laxmikant M.
Joshi, i.e, the original accused No.1. The role played by the
present applicants are mentioned in the second part of the first
information report, wherein, the allegations are to the effect
that they have supported the original accused No.1. They are
not, at all concerned with the earlier transactions whatsoever
took place between the complainant and the accused No.1. If
the entire allegations levelled against the applicants are to be
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read, they are vague and general in nature.
7. Mr. Pandya has further submitted that a bare perusal of
the complaint itself shows and suggests that nowhere in the
entire complaint, it is mentioned that the present applicants
have uttered any abusing words against the caste of the
complainant and, therefore, the contents of the FIR do not
suggest any case to be drawn under the provisions of the
Atrocities Act. Learned advocate Mr. Pandya has put reliance
upon the judgment in the case of Swaran Singh & Ors. vs.
State through Standing Counsel & Ors. reported in (2008)
8 SCC 435 and submitted that no case could be made out of
any offence of cheating, criminal breach of trust, outrage the
modesty of a woman etc. in the present case and to support
his submissions, he has also relied upon the judgment of this
Court in the case of Dharmendrabhai Nandubhai Patel vs.
State of Gujarat, reported in 2012(1) GLR 237.
8. Learned advocate Mr. Pandya has further submitted that
it is an undisputed fact that as per the case of the prosecution,
the so called incident has occurred in the house of the accused
No.1 and if the allegations levelled by the first informant
under the provisions of the Atrocities Act are accepted as true,
none of the ingredients to constitute the offence under Section
3(1)(x) of the Atrocities Act is satisfied.
9. Mr. Pandya has further submitted that at this juncture,
the true meaning and scope of the expression 'public view' is
required to be considered in its true spirit and proper
perspective. It is necessary that the derogatory and or the
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humiliating words to constitute an offence, should be uttered
in the presence of the independent persons. Learned advocate
Mr. Pandya has submitted that the first information report
does not disclose the fact that any other person was present at
the time when the alleged insult or intimidation by the
accused took place which was with an intent to humiliate her
in any public view. Learned advocate Mr. Pandya has further
submitted that if the entire body of the complaint is to be
read as a whole, it appears that nowhere in the entire
complaint, anything has been mentioned as regards the actual
utterances against the caste of the complainant by the
applicants herein. Thus, in the absence of any specific
mention as regards what kind of derogatory words were being
used by the accused persons which constitutes the offence
under the provisions of the Atrocities Act, the first information
report is required to be quashed and set aside.
10. Mr. Pandya has also submitted that to constitute the
offence under the Atrocities Act, it is mandatory requirement
on the part of the complainant to disclose in the body of the
complaint itself as to what kind of derogatory words were
being used against her caste and religion. He has further
submitted that if the offence under the Atrocities Act are
being registered only on the basis of the statements or
allegations of utterance of derogatory words against the caste
of anybody, then in that case, nobody in the Society would be
safe. Another aspect which is to be taken into consideration is
that such kind of incidents must take place at any place within
the public view. Mr. Pandya has submitted that herein in the
present case, as per the case of the prosecution, the so called
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incident had occurred in the house of the accused No.1 and the
complainant herself went to the house of the accused No.1. He
has also submitted that in the present case there is no
independent eyewitness, who had witnessed the said incident.
Therefore, he prays that there being merit in this application,
the same may be allowed and the impugned FIR may be
quashed and set aside.
11. Learned advocate Mr. Sandip Patel appearing for the
applicant-original accused No.1 in Criminal Misc. Application
No.8137 of 2014 has submitted that he is confining his
arguments pertaining to the Atrocities Act only. At this
juncture, he is not pressing for the rest of the sections of the
Indian Penal Code. Mr. Patel has submitted that in principle,
he has adopted the arguments canvassed by the learned
advocate appearing in Criminal Misc. Application No.7573 of
2014 in toto. However, to crystallize the position of law more
clear, he wants to make further submissions in supplement to
what has been submitted by learned advocate Mr. Pandya. He
has submitted that nowhere in the body of the complaint, any
accusations or allegations have been levelled against the
accused No.1 with regard to utterance of derogatory words
against the caste of the complainant. Further, the so called
incident took place within the four corners of the house which
was not viewed or seen by any public. He has submitted that,
therefore, when the incident is occurred at the place which was
not within the public view, in that event, the ingredients of
Section 3(1)(x) of the Atrocities Act would not be attracted in
the present case.
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12. Mr. Patel has submitted that even for the sake or
arguments, without admitting it, if the allegations levelled by
the first informant are accepted as true, even though none of
the ingredients found in the complaint which would ultimately
constitute the offence punishable under Section 3(1)(x) of the
Act. It is submitted that continuance of the prosecution will
amount to gross abuse of the process of law, more particularly,
the provisions of the Atrocities Act which are meant for
laudable object. He, therefore, prays that the proceedings, so
far as the offence under the provisions of the Atrocities Act are
concerned, be quashed.
13. Learned advocate Ms. E. Shailaja appearing on behalf of
the original complainant has vociferously submitted that the
incident had occurred in the first room of the house of the
accused No.1 and the said house is situated in the Society.
Therefore, it could be said to be part of the premises which can
be viewed by the public and construed as a public place and,
therefore, offence under Section 3(1)(x) of the Act could be
said to have been committed by the accused persons in the
'public view'. She has further submitted that although at the
time, when the Atrocities Act was brought into force, it
required the acts on the part of the accused to have been
committed within public view, yet taking into consideration the
change scenario, and the attempts being made by the
people belonging to the upper caste and community to abuse
the members of the Schedule Castes and Schedule Tribes in
the private place, the provision comprising of under Section
3(1)(x) has to be harmoniously construed and the expression
'public view' appearing in the said provision of law should not
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be understood to have a restricted meaning. According to
learned advocate, considering the same, the drawing room of
the accused No.1 where the first informant was abused by the
applicants-accused in the presence of her friend, should be
construed as the place 'within the public view'. She, therefore,
prays that this Court may not quash the proceedings in
exercise of the inherent powers under Section 482 of the
Cr.P.C.
14. Learned AGP Mr. K.M. Antani appearing for the State has
submitted that a bare perusal of the complaint, prima facie,
shows that the ingredients of the provisions of the Atrocities
Act are found out in the body of the complaint. The allegations
levelled against the accused persons are grave in nature, and
it appears from the same that a prima facie case could be
said to have been made out against the accused persons. He
has further submitted that immediately after registration of the
complaint, within no time, present petitions are being
preferred by the accused persons and obtained stay of the
investigation. Therefore, just to bring the true and correct
picture, at least, the investigation is required to be carried out
and for that purpose, without considering the present
applications, the Investigating Machinery may be given free
hands to conduct the inquiry and the applicants are required
to be put to trial for the offence punishable under the
provisions of the Atrocities Act and, therefore, he prays that
the present applications may be rejected.
15. Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
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only question that falls for my consideration is whether the
prosecution against the applicants should be quashed.
16. Before adverting to the rival submissions, I would like to
quote Section 3(1)(x) of the Atrocities Act, which reads thus;
"Section3(1)(x) - intentionally insults or intimidates
with intent to humiliate a member of a Schedule
Caste or a Schedule Tribe in any place within public
view."
17. Thus, a plain reading of the above provision would
indicate that the ingredients of the said provision would be
attracted only when a person, intentionally insults or
intimidates with intent to humiliate any member of a Schedule
Caste or a Schedule Tribes in any place within public view,
which is not there in the present case.
18. Now let me quote with profit few decisions of the Apex
Court as well as of this High Court on the issue involved in the
present case.
19. In the case of Dhiren Prafulbhai Shah vs. State of
Gujarat, reported in 2016-GLR-4-2785, this Court, in paras-
20,21, 22 and 23 held thus;
"20. What is the true meaning and scope of the
expression "public view" used in Section 3(1)
(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,
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friends, associates or otherwise connected with the
complainant? These are questions which require
determination.
21. The 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 a sevenjudge Bench decision of the
Supreme Court in Bengal Immunity Co. Ltd. Vs.
State of Bihar, AIR 1955 SC 661; and Directorate of
Enforcement Vs. Deepak Mahajan, AIR 1994 SC
1775.
22. It is also well settled that FIR can be quashed, if
the allegations taken in entirely at their face value,
primafacie 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
Vs. Bhajan Lal, 1992 Suppl. (1) SCC 335, and several
other judgments.
23. Basic ingredients for the offence under Clause
(x) of Subsection (1) of Section 3 of the Act,
revealed through the bare reading of this section
are as follows:
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(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."
20. In the case of Thakor Dashrathji Babuji vs. State of
Gujarat, reported in 2022-JX(Guj.)0-924, this Court has held
thus;
"11. The expression 'any place within public view'
has been clarified in the judgment at paragraph-14
of the decision in the case of Hitesh Verma Vs. State
of Uttarakhand & Anr., reported in (2020) 10 SCC
710, referring to the case of Swaran Singh & Ors. Vs.
State, Through Standing Counsel & Ors., reported in
(2008) 8 SCC 435, it has been observed as under:
"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 & Ors. v. State through Standing
Counsel & Ors. 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
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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.
12. In the case of Swaran Singh (supra), the Hon'ble
Apex Court has noted the distinction of the
expression 'public place', not being found in Section
3(1)(r), but instead, there has been use of the
expression 'not any place within public view'.
Section 3(1) is substituted by Act No.1 of 2016 with
effect from 26.1.2016.
13. In the case of Hitesh Verma (supra), while
referring the case of Swaran Singh (supra), the
distinction between a 'public place' and 'in any
place within public view', has been expounded,
which becomes applicable in the facts of the
present case, which clarifies that utterance of the
words is not in presence of any member of the
public nor in the society within public view, the
alleged incident is alleged to have taken place at
the turning near house no.8. Hence, Section 3(1)(r)
would not be applicable to the facts of the case,
equally would be true for the FIR bearing CR no.I-
195/2017, where there is no allegation that any
such abuse was even in any place or any public
view. The whole allegation is that the applicant had
abused him on phone. Hence, to that case too,
Section 3(1)(r) would not be made applicable."
21. In the case of Hitesh Varma vs. The State of
Uttrakhand & Anr., Criminal Appeal No.707 of 2020, the
Supreme Court has held as under;
"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
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come up for consideration before this Court in the
judgment reported as Swaran Singh & Ors. v. State
through Standing Counsel & Ors. 5 . 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. 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
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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 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."
22. The SC/ST Act was enacted with a laudable object to
protect vulnerable section of the society. Subclauses (I) to (xv)
of Section 3(1) of the Act enumerated various kinds of
atrocities that might be perpetrated against Scheduled
Castes and Scheduled Tribes, which constitute an offence.
However, Subclause(x) is the only clause where even offending
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"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 Castes 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(1)(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.
23. The plain reading of the F.I.R. filed by the first
informant undoubtedly prima facie discloses various
accusations against the first informant by the applicants in the
name of the Schedule Castes and Schedule Tribes. It also
prima facie discloses abuses having been uttered by the
applicants and addressed to the first informant in the presence
of her friend. However, as rightly submitted by the learned
advocate for the applicant, the F.I.R. nowhere discloses those
accusations having been made in a place within the "public
view". The expression "within public view" has specific
meaning and in order to attract the provisions of law under
Section3(1)(x) of the Atrocities Act, the acts amounting to
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insult or humiliation to the member of Schedule Castes or
Schedule Tribes should be visible and audible to the public.
Otherwise, it would not amount to an offence under the said
provision of law. Considering the same and also the
allegations in the F.I.R which relate to the acts of the
applicants-accused in the drawing room of the house of the
accused No.1, and in the absence of any stranger, can hardly
be said to be accusations by the applicant to the first
informant "within the public view". On this count itself, the
applicant is justified in contending that there was no case for
recording the F.I.R. under the provisions of law comprised
under Section3(1)(x) of the Atrocities Act.
24. So far as the contention of the learned advocate
appearing for the first informant regarding the interpretation
to be given to the expression "within public view" cannot be
accepted. In fact, to construe the said expression in the
manner the learned advocate appearing for the first informant
wants me to construe, the same would virtually amount to
legislate upon the said provision in the statute and that is
beyond the scope of the powers of the Court. That falls entirely
within the domain of the legislature. Therefore, the said
contention is required to be rejected and, hence, rejected.
25. I am well supported in my view by two decisions of the
Supreme Court (i) Asmathunnisa Vs. State of A.P. reported
in 2011 Cri.L.J. 2594; and (ii) Swaran Singh and Ors Vs.
State through Standing Consel and Anr. Reported in 2008
Cri.L.J. 4369.
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26. In the case of Asmathunnisa (Supra), the
Supreme Court considered the question whether in the
absence of real aggrieved person present at that point of
time, when the offence is alleged to have occurred,
could it be said that such person was insulted "within public
view". The Supreme Court took notice of the Kerala High Court
decision in Para9, which reads as under:
9. In this connection, learned counsel for the
appellant has placed reliance on a judgment of
the Kerala High Court in E. Krishnan Nayanar
v. Dr. M.A. Kuttappan and others, 1997 Cri LJ 2036.
The relevant paragraphs of this judgment are paras
12, 13 and 18. The said paragraphs read as under:
"12. A reading of Section 3 shows that two kinds of
insults against the member of Scheduled Castes or
Scheduled Tribes are made punishable one as
defined under subsection (ii) and the other as
defined under subsection (x) of the said section. A
combined reading of the two subsections shows
that under subsection (ii) insult can be caused to a
member of the Scheduled Castes or
Scheduled Tribes by dumping excreta, waste
matter, carcasses or any other obnoxious substance
in his premises or neighbourhood, and to cause such
insult, the dumping of excreta etc. need not
necessarily be done in the presence of the person
insulted and whereas under subsection (x) insult can
be caused to the person insulted only if he is
present in view of the expression "in any place
within public view". The words "within public
view", in my opinion, are referable only to the
person insulted and not to the person who insulted
him as the said expression is conspicuously absent
in subsection (ii) of Section 3 of Act 3/1989. By
avoiding to use the expression "within public
view" in subsection (ii), the Legislature, I
feel, has created two different kinds of offences an
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insult caused to a member of the Scheduled
Castes or Scheduled Tribes, even in his
absence, by dumping excreta etc. in his premises
or neighbourhood and an insult by words caused to
a member of the Scheduled Castes or Scheduled
Tribes "within public view" which means at the time
of the alleged insult the person insulted must be
present as the expression "within public view"
indicates or otherwise the Legislature would have
avoided the use of the said expression which it
avoided in subsection (ii) or would have used the
expression "in any public place".
13. Insult contemplated under subsection (ii) is
different from the insult contemplated under sub-
section (x) as in the former a member of the
Scheduled Castes or Scheduled Tribes gets insulted
by the physical act and whereas in the latter he gets
insulted in public view by the words uttered by the
wrongdoer for which he must be present at the
place.
xxx xxx xxx
18. As stated by me earlier the words used in sub-
section (x) are not "in public place", but "within
public view" which means the public must view the
person being insulted for which he must be present
and no offence on the allegations under the said
section gets attracted. In my view, the entire
allegations contained in the complaint even if taken
to be true do not make out any offence against the
petitioner."
27. In Para10, the Supreme Court reached to the
following conclusion, which in my opinion clinches the issue in
hand. Para10 reads as under:
"10. The aforesaid paragraphs clearly mean that the
words used are "in any place but within public view",
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which means that the public must view the person
being insulted for which he must be present and no
offence on the allegations under the said section
gets attracted if the person is not present."
28. As clarified by me the issue was little different before the
Supreme Court, but the ratio that is discernable is that the
"insult" if any, must be viewed by the "public".
29. The legal position would become more clear considering
the ratio of the decision in the case of Swaran Singh Case
(Supra).
30. In Swaran Singh's Case (Supra) the facts are that the
complainant was working as a car driver under one Shri Umesh
Gupta. He belonged to the Khatik caste. He used to stand near
the car parked at the gate. His grievance was that every
now and then Smt. Simran Kaur and her daughter
while passing through used to abuse him by his caste. On
10.12.2014, in the morning while he was cleaning the car, both
the mother and the daughter threw dirty water on him and
abused him on his caste which was witnessed by the guard of
the apartment and one another driver. While drawing
distinction between public place and a place within public view,
the Apex Court held as follows:
31. I may quote the observations made in Paras-27 and 28 as
under;
"27. Learned counsel then contended that
the alleged act was not committed in a
public place and hence does not come
within the purview of section 3(1)(x) of the Act. In
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this connection it may be noted that the aforesaid
provision does not use the expression 'public place',
but instead the expression used is 'in any place
within public view'. In our opinion there is a
clear distinction between the two expressions.
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
or the municipality (or other local body) or gaon
sabha or an instrumentality of the State, and not by
private persons or private bodies."
32. Ultimately, in Para34, the Supreme Court concluded by
observing as under:
"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,
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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."
33. I may also quote the judgment of the Supreme Court in
the case of 'Gorige Pentaiah v. State of Andhra Pradesh and
others reported in (2008) 12 SCC 531: (2008 AIR SCW 6901).
The relevant paragraph of this judgment is as under:
"6. .. According to the basic ingredients of Section
3(1)(x) of the Act, the complainant ought to have
alleged that the appellant-accused was not a
member of the Scheduled Caste or a Scheduled
Tribe and he (Respondent 3) was intentionally
insulted or intimidated by the accused with
intent to humiliate in a place within public view. In
the entire complaint, nowhere it is mentioned that
the appellantaccused was not a member of the
Scheduled Caste or a Scheduled Tribe and he
intentionally insulted or intimidated with
intent to humiliate Respondent 3 in a place within
public view. When the basic ingredients of the
offence are missing in the complaint, then
permitting such a complaint to continue and to
compel the appellant to face the rigmarole of
the criminal trial would be totally unjustified leading
to abuse of process of law."
34. The powers possessed by the High Court under Section
482 of the Code are very wide and the very plenitude of the
power requires great caution in its exercise. The Court must
be careful to see that its decision in exercise of this power is
based upon sound principles. The inherent power should not
be exercised to stifle a legitimate prosecution.
35. In the case of State of Karnataka vs. L. Muniswamy,
reported in (1977) 2 SCC 699, it is observed by the Apex Court
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that the wholesome power under Section 482 of the Cr.P.C.
entitles the High Court to quash a proceeding when it comes to
the conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of
justice require that the proceeding ought to be quashed. The
High Courts have been invested with inherent powers, both in
civil and criminal matters, to achieve a salutary public purpose.
The Court proceedings ought not to be permitted to
degenerate into a weapon of harassment or persecution. The
Court observed in this case that ends of justice are higher
than the ends of mere law though justice must be
administered according to laws made by the legislature and
this case has been followed in a large number of subsequent
cases of this Court and other Courts.
36. It appears that so far as the applicants in the Criminal
Misc. Application No.7573 of 2014 are concerned, the
allegations levelled against them are in the second part of the
complaint, and as per the said allegations, they came into
picture subsequently, i.e, when the complainant went to the
house of the accused No.1 for demanding back her money
and they are not at all concerned with the earlier transactions
whatsoever took place between the complainant and the
accused No.1. It also appears that nowhere in the complaint,
there is any single allegation against them so far as the
offence under Sections 406, 420 etc. of IPC are concerned. It
is found out from the record that in the body of the complaint,
the complainant has not mentioned anything about her caste
or community. Secondly, it is imperative on the part of the
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complainant to mention, in the operative part of the complaint,
that she belongs to a particular caste, community or religion
and the said fact was within the knowledge of the accused
persons and with an intent to insult or humiliate her, certain
words/phrases have been used by the accused persons.
Nowhere in the entire body of the complaint, the complainant
has made any kind of accusation/allegation against the
applicants herein about the specific role played by them.
Whatever sequence of events of the incident narrated in the
complaint are vague and general in nature. Nowhere in the
entire body of the complaint, specific role played and actions
taken by a particular accused is mentioned. The complaint is
conspicuously silent about the specific role played by the
individual accused, and in that event, in the absence of any
specific role attributed to any of the accused in the entire body
of the complaint which would attract the provisions of the
Indian Penal Code as well as the Atrocities Act, I do not find it
proper to allow the investigation to continue against the
present applicants-accused. Therefore, I am of the opinion
that the impugned complaint is required to be quashed and set
aside. Hence, I pass the following order
ORDER
(i) The Criminal Misc. Application No.7573 of 2014 is allowed. The First Information Report being C.R. No.I-146 of 2014 registered with the Naranpura Police Station, Ahmedabad is hereby quashed and set aside qua the applicants-original accused Nos.2 to 5 only. All consequential proceedings Page 24 of 25 Downloaded on : Fri May 05 21:07:55 IST 2023 R/CR.MA/7573/2014 CAV JUDGMENT DATED: 05/05/2023 pursuant thereto shall stand terminated.
(ii) The Criminal Misc. Application No.8137 of 2014 is allowed in part. The First Information Report being C.R. No.146 of 2014 registered with the Naranpura Police Station, Ahmedabad so far as Section 3(1)(x) of the Atrocities Act is concerned, is hereby quashed. I clarify that this shall not come in the way of the Investigating Agency so far as the other offences under the Indian Penal Code are concerned. The investigation shall proceed further in accordance with law against the applicant- original accused No.1 so far as the offence under the provisions of the Indian Penal Code are concerned, and the same shall be completed at the earliest and an appropriate report shall be filed before the competent court so far as the original accused No.1 is concerned.
(iii) Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(DIVYESH A. JOSHI,J) VAHID Page 25 of 25 Downloaded on : Fri May 05 21:07:55 IST 2023