Calcutta High Court (Appellete Side)

Dr. Pranab Basu vs The State Of West Bengal on 21 December, 2022

               IN THE HIGH COURT AT CALCUTTA
           CRIMINAL MISCELLANCEOUS JURISDICTION
                       APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi



                         CRM (A) 5894 of 2022

                           Dr. Pranab Basu
                                  VS.
                       The State of West Bengal


For the Petitioner : Mr. Shiv Shankar Banerjee,
               Ms. Sanchita Barman Roy, Advocates

For the de-facto
complainant         : Angsuman Chakraborty, Advocate


For the State       : Mr. Saswata Gopal Mukherji, ld. PP
                      Mr. Partha Pratim Das,
                Mrs. Manasi Roy, Advocates

Judgement on: December 21, 2022


DEBANGSU BASAK, J.:-

1.

Petitioner prays for anticipatory bail under Section 438 of the

Code of Criminal Procedure in connection with Garfa Police Station

CRM (A) 5894 of 2022

Case No. 82 of 2022 dated 13.04.2022 under Sections

498A/315/354C/506/34 of the Indian Penal Code read with Section 4

of the Dowry Prohibition Act, 1961 and Section 3 of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (which

corresponds to Special Case No. 16 of 2022).

2. Learned advocate appearing for the petitioner submits that the

petitioner and the de facto complainant are husband and wife by

relation. Both are Doctorates. There are matrimonial disputes. The

petitioner was falsely implicated. He submits that, the provisions of

the Scheduled Caste and Scheduled Tribe ( Prevention of Atrocities)

Act, 1989 are not attracted. He refers to the written complaint of the

de facto complainant dated April 13, 2022. He draws the attention of

the Court to the relevant portions of the contents of the written

complaint. He submits that, the incidents alleged in the written

complaint did not occur at a place within public view. He refers to

Section 3(1)(r) of the Act of 1989. He submits that, the insult and

intimidation to humiliate must occur at a place within public view. He

submits that, the contents of the written complaint do not disclose

that, the alleged insult or intimidation occurred at a place within public

view. In support of such contention, he relies upon judgments of the

Supreme Court reported in AIR 2011 SC 1905 [Asmathunnisa vs.

CRM (A) 5894 of 2022

State of AP] and AIROnline 2020 SC 812 [Hitesh Verma vs.

State of Uttarakhand]

3. Learned advocate appearing for the State refers to the materials

in the case diary. He submits that the police filed charge sheet.

4. Learned advocate appearing for the de facto complainant refers

to the various portions of the written complaint dated April 13, 2022.

He submits that the de facto complainant was insulted and intimidated

with regard to her caste at a place with public view. According to him

by reason of Section 18 of the Act of 1989 the present application is

not maintainable.

5. The Act of 1989 contains an embargo with regard to grant of

anticipatory bail in Section 18. Section 18 of the Act of 1989 is as

follows :-

"18. Section 438 of the Code not apply to persons committing an offence under the Act.- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."

6. The de facto complainant lodged a written complaint dated April

13, 2022 on the basis of which police registered an FIR, inter alia,

invoking the provisions of the Act of 1989.

CRM (A) 5894 of 2022

7. The allegations relate to insulting and demeaning the de facto

complainant with regard to her caste at a place within public view.

8. In the facts of the present case, it would be apposite to note the

provisions of Section 3(1)(r) of the Act of 1989. Section 3(1)(r) of the

Act of 1989 is as follows :-

"3(1)(r)-- intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."

9. There is a written complaint lodged by the de facto complainant

on April 13, 2022. The relevant portions of the contents in the written

complaint dated April 13, 2022 are as follows :-

"... ... To pressurise me into changing my surname they will often call me as "Ei Pod", "Ei Poundra" and further distorted it to mean a demeaning word in Bengali in public places.

... ... ... ... ... ...

I went to attend the "Shradh" and other "Asauch" ceremonies of Late Smt. Pratima Basu wife of Sri Rathin Kumar Basu, uncle of my father in-law, who is also the resident of my matrimonial home i.e., at 12, Joy Narayan Tarka Panchanan Lane, Narkeldanga, Kolkata-700011. During my stay over there, my parent in-law bullied and humiliated me at the insistence of my husband and insulted me in front of members of public at large like labourers, working maids, shop keepers and drivers and other invited guests including my mother regarding me belonging to SC community like "This is Bose 'paara'. I don't want to scheduled caste girl in our Bose 'paara', "Look around.

                     ...            ...       ...       ...   ...

                           CRM (A) 5894 of 2022

My father in-law used to make multiple casual visits in the localities of Narkeldanga and Rajabajar and not weak mask or follow proper sanitisation method of washing hands or feet with soap or sanitizers upon returning. When I insisted on following Covid protocol they tortured me and abused and chided me, "Scheduled caste girl like you should not teach the Boses of Bose 'paara' cleanliness", "Houses of you scheduled caste people are dirty like sty and you dare to preach us hygiene? etc. and asked me to leave the house and I was eventually forced to do so by the end of March 2020. Unable to take the abuse, I had even dialled from my phone the number of Narkeldanga police station on 25th March 2020 but my husband snatched away my phone before the call could get answered."

... ... ... ... ...

The husband continued his spree of abuses amongst the assembled guests of the pre-birthday party "You low caste people don't even know how to celebrate the birthday of an upper caste person like me", "Tor rank ki chilo, chance petis Jadavpure?. Such was the rancour of my husband that he kept running the solo swear words hurling show for quite a long duration amidst the assembled guest and my mother was present who besides me suffered deep insult and humiliation.... ... ..."

10. Provisions of Section 3(1)(r) were considered by the Supreme Court in Asmathunnisa (supra), which held as follows :-

"9. In this connection, learned counsel for the appellant has placed 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 sub-section(ii) and the other as defined under sub-section (x) of the said section. A combined

CRM (A) 5894 of 2022

reading of two sub-sections shows that under sub- section (ii) insult can be caused to a member of the Scheduled Caste or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in each 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 sub-section (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 sub-section (ii) of Section 3 of Act 3/1989. By avoiding the use the expression "within public view" in sub-section (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his premises or neighborhood 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 sub-section (ii) or would have used the expression "in any public place".

13. Insult contemplated under sub-section (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

CRM (A) 5894 of 2022

offence on the allegation 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."

11. The Supreme Court in Hitesh Verma (supra) held as follows : -

13. The offence under Section 3(1) (r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Schedule Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Schedule Case or Scheduled Tribe. The object of the Act is to improve the socio- economic conditions of the Scheduled Castes and the Schedules Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations and harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No. 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No. 2 is member of Scheduled Case.

14. Another key ingredient of the provision is insult or intimidation if "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh and Ors. v. State through Standing Counsel and Ors. The court had drawn distinction between the expression "public place" and "in any place within public view". It was

CRM (A) 5894 of 2022

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:

5 (2008) 8 SCC 435 : (2008 AIR SCW 5758)

"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 be private persons or private bodies."

12. In the facts of the present case, the written complaint dated

April 13, 2022 narrates incidents of insult over a period of time at

CRM (A) 5894 of 2022

different places. In internal page 2 of such complaint, the de facto

complainant claims that she was insulted with regard to her caste at

public places.

13. Since the written complaint contains allegations of violation of

the provisions of the Act of 1989 occurring in public places, we are of

the view that the provisions of Section 18 of the Act of 1989 stands in

the way of our exercising of powers under Section 438 of the Criminal

Procedure Code.

14. Consequently, CRM (A) 5894 of 2022 is dismissed as not