THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL PETITION No.2058 of 2018
ORDER:-
This Criminal Petition, under Section 482 of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C."), is filed to
quash the Proceedings in SC ST Sessions Case No.152 of
2017 pending against the petitioner on the file of the learned
Special Judge for Trial of Cases under SCs and STs (POA)
Act-cum-X Additional District & Sessions Judge, East
Godavari District, Rajamahendravaram for the offences
punishable under Sections 353, 354, 509 IPC and under
Sections 3(1) (r) (s) (w) (i) (ii) and 3(2) (va) of SCs and STs
(POA) Act (for short „the Act, 1989).
2. Brief facts of the case, as per the charge sheet, are
as follows;
The de facto complainant (L.W.1) is working as a part
time Sweeper on contract basis in the office of Gram
Panchayat, Anaparthi and she belongs to SC-Relli
Community. Nandi Kumari (L.W.2) is also working as
Sweeper in the same Gram Panchayat along with the de facto
complainant and that she belongs to SC-Madiga by Caste. On
15.4.2017, both of them were deputed to clean the drainage
canal running from Panchayat Office to Varthaka Sangham
Kalyana Mandapam in Anaparthi. In the said process of
cleaning they have reached drain canal running in front of the
house of the accused. While they were attending the work, the
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accused came out from his house in rash manner and
obstructed them from discharging their duty by shouting
"PUDIKA THEEYATANIKI LEDU, NEE AMMA DRAIN
ANUKUNTUNNAVA, PAKI MUNDALLARA, MADIGA
LANJALLARA". When the de facto complainant continuing her
work, he pushed her by placing his hands on her chest by
shouting „NEEKU CHEPITHE ARTHAMU KAADA" and also
abused her and he also abused Nandi Kumari (L.W.2) in filthy
language. Then they both returned to Panchayat Office and
after discussing with their colleague Sweepers in the
Panchayat office, the de facto complainant lodged report by
9.00 p.m., on that night with the police.
Basing on the report given by the de facto complainant,
the Additional Sub-Inspector of Police, Anaparthi Police
Station, registered the case in Crime No.71 of 2017 for the
offences under Sections 353, 354, 509 IPC and under
Sections 3(1) (r) (s) (w) (i) (ii) and 3(2) (va) of the Act, 1989 and
issued FIR. The Deputy Superintendent of Police, SC ST Cell-
II, East Godavari District, Kakinada had taken up the
investigation on the instructions of the Superintendent of
Police, East Godavari District. In the course of investigation,
he visited the scene of offence, examined the witnesses,
prepared scene observation report in the presence of
mediators and also obtained Caste Certificates of the victims,
who are the de facto complainant and Nandi Kumari (L.W.2)
to the effect that the de facto complainant belongs to SC-Relli
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Caste and Nandi Kumari (L.W.2) belongs to SC-Madiga Caste
and on completion of investigation, filed the charge sheet.
3. Heard the learned counsel for the petitioner and the
learned Additional Public Prosecutor appearing for the 1 st
respondent. Though the notice was served on the 2nd
respondent, none appeared on his behalf.
4. Learned counsel for the petitioner contended that the
incident did not take place within the public view and that
the report was lodged with abnormal delay of about 12 hours
and the same was also after due deliberations and as an
afterthought and it was at the instance of Executive Officer,
Gram Panchayat, who developed grudge against the
petitioner/accused since he was questioned by the petitioner
about his illegal acts etc., In view of the same, continuation of
further proceedings before the Court below would be nothing
but abuse of process of Court. Learned counsel for the
petitioner further contended that on perusal of Section 161
Cr.P.C. statements, it is clear that none of them is eye witness
to the alleged incident and as such the alleged incident if true
has not taken place within the view of the public.
5. Learned Additional Public Prosecutor contended that the
averments in the charge sheet show that there are
accusations against the petitioner and the statements of
witnesses recorded under Section 161 Cr.P.C., prima facie
make out a case against the petitioner and that whether the
offences took place in the public view or not being question of
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fact, the same has to be decided only after full fledged trial,
but not at this initial stage.
6. Admittedly, the incident said to be taken place during
morning hours and it was in front of the house of the
petitioner. It is alleged that the accused had voluntarily
picked up quarrel and obstructed duties of the de facto
complainant and Nandi Kumari (L.W.2.) On perusal of the
charge sheet as well as the statements of the witnesses
recorded and other record, they go to show that the victims
are belonging to Scheduled Caste and according to them their
modesty was also outraged and the petitioner abused them
touching their caste name.
7. Section 3 of the Act, 1989 reads as follows;
Section 3. Punishments for offences atrocities
1[(1) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,--
(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;
(s) abuses any member of a Scheduled Caste or a
Scheduled Tribe by caste name in any place within
public view;
(w) (i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing that
she belongs to a Scheduled Caste or a Scheduled
Tribe, when such act of touching is of a sexual
nature and is without the recipients consent;
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(ii) uses words, acts or gestures of a sexual nature
towards a woman belonging to a Scheduled Caste or
a Scheduled Tribe, knowing that she belongs to a
Scheduled Caste or a Scheduled Tribe.
3 (2) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,--
[(va) commits any offence specified in the Schedule,
against a person or property, knowing that such
person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such
member, shall be punishable with such punishment
as specified under the Indian Penal Code (45 of
1860) for such offences and shall also be liable to
fine;]
8. Learned counsel for the petitioner has relied upon the
judgment of Delhi High Court in Ms. Gayatri @ Apurna
Singh vs State1 (W.P.(CRL) 3083 of 2016), wherein it is
held
"40. Daya Bhatnagar (supra) was a decision
rendered by the learned Single Judge on a
reference being made to him on account of a
difference of opinion between two learned
Judges constituting the Division Bench. The
learned Single Judge S.K. Aggarwal, J.
concurred with the view of B.A. Khan, J and disagreed with the view of V.S. Aggarwal, J. S.K. Aggarwal, J. approved the following observation of B.A. Khan, J. in his opinion:
12017(6) AD (Delhi) 14 6 "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"." (emphasis supplied)
41. S.K. Aggarwal, J. proceeded to examine the meaning of the expression "public view" used in section 3(1)(x) of the SC/ST Act. He referred to the meaning of the word "public" found in legal dictionaries, and also referred to the Statement of Object and Reasons of the SC/ST Act. After analyzing the provisions of the SC/ST Act and in particular sub-clause
(x) of section 3(1) of the said Act - which makes "utterances punishable", he observed:
"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 7 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 8 of 'public view' within the meaning of the expression used."
42. In Daya Bhatnagar (supra), the majority view taken by the Court was that to attract the offence under Section 3(1)(x) of the SC/ST Act the place where the offending action takes place should be within public view that does not mean that the place should be a public place. It could well be a private place, provided the utterance was made within public view. "Public view" is understood to mean a place where public persons are present" howsoever small in number they may be. Public persons are independent and impartial persons who are not interested in any of the parties. The same has been explained to mean persons not having any kind of close relationship or association with the complainant. Such persons are as good as strangers who do not have any liking for the complainant through any close relationship or any business commercial or other vested interest and who are not participating members with him in any way."
9. In the very same judgment, it is also held that another essential requirement for the above offence to be attracted is there must be intentional insult or intimidation with intention to humiliate should take place in any place within public view.
910. The facts therein are that the accused seems to have abused a particular caste on social network sites/face book.
The reporter of the crime who belonged to that caste, gave report, stating that updating bad words against his caste amounts to insult and the same is unacceptable for him and so gave report. Therefore, in the said facts and circumstances commenting a caste in internet without aiming a particular individual who is a member of that caste, is held, would not amount to an offence punishable under the Act, 1989. It is also held therein that the insult faced by a member of the Scheduled Caste or Scheduled Tribe must have been made with the intention, against that member. It is also held therein that the derogatory utterance made in generalized terms in a public gathering even in the name of the Caste would not attract an offence under Section 3(1) (x) of the Act, 1989. Therefore, the Delhi High Court quashed the FIR as well as proceedings against the petitioner therein in respect of the offence under Section 3(1) (x) of the Act, 1989.
11. Thus, the above said judgment may not be applicable to the facts and circumstances of the present case at its threshold. Evidence is to be let in by the prosecution as the utterances said to be made by the accused are against an individual and it is in public place which is a street in village, where Nandi Kumari (L.W.2) was also present.
12. Learned counsel for the petitioner also placed reliance on the judgment of the Hon‟ble Supreme Court in Union 10 Public Service Commission Vs. Dr. Jamuna Kurup and others in Civil Appeal No.2294-2320 of 2008, dated 21.2.2008 and contended that the de facto complainant/victim is only a part time employee of Gram Panchayat and hence she will not come within the meaning of Public Servant and as such 353 IPC is not attracted.
13. Section 353 IPC deals with punishment for assaulting or using criminal force to deter public servant from discharging his duty. The judgment referred supra relating to recruitment of contractual employment by Municipal Corporation and whether that servant would be regarded as Government Servant or not?. Here in this case, it is not the Government Servant but it is Public Servant if was obstructed from discharging his duty, Section 353 IPC would attract or not is a disputed question of fact and the same can be established after full fledged trial. Therefore the judgment relied upon for the petitioner is not of much helpful.
14. At this juncture, this Court has to look into the contents of the complaint, Section 161 Cr.P.C. statements and the charge-sheet. On perusal of the allegations in the charge sheet, it prima facie discloses that specific accusations are made as against the petitioner. At this stage, this Court would not be in a position to ascertain truth or otherwise of the said accusations. The defences that are sought to be raised are all being questions of fact, they have to be established in the course of trial. This Court is conscious of the fact that under 11 Section 482 Cr.P.C., the Court is primarily concerned with the accusations that are made in the charge-sheet and other material available on record, but cannot make a roving enquiry about the truthfulness or falsity of the same.
15. In view of the same, this is premature for this Court to interfere in the proceedings in SC ST Sessions Case No.152 of 2017 pending on the file of the learned Special Judge for Trial of Cases under SCs and STs (POA) Act-cum-X Additional District & Sessions Judge, East Godavari District, Rajamahendravaram. Hence the Criminal Petition is liable to be dismissed.
16. Accordingly, the Criminal Petition is dismissed.
Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
_________________________________ JUSTICE K. SREENIVASA REDDY Date:10.08.2022 GR 12 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL PETITION No.2058 of 2018 Date: 10.08.2022 GR 13