Ashwani Kumar vs State & Anr.
2009 Latest Caselaw 28 Del

                   "REPORTABLE"
*            HIGH COURT OF DELHI AT NEW DELHI

+            Writ Petition (Crl.) No. 1593/2006 and
             Crl.M.A. No. 6859/2006

                                Date of decision: 9.01.2009

#     ASHWANI KUMAR                     ...... PETITIONER

!                   Through : Mr. Hitender Kapur, Advocate


                             Versus


$     STATE & ANR.                      .....RESPONDENTS

^                   Through : Ms. Mukta Gupta, Standing
                              Counsel.
                              Mr. Vipin Kumar Gupta, Adv.
                              for R-2 with respondent No. 2
                              in person.
%

      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?         Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                Yes

                           JUDGMENT

ARUNA SURESH, J.

1. This writ petition has been filed by petitioner;

Ashwani Kumar seeking quashing of FIR No.

266/2006 under Section 3(1)(x) of the Scheduled

Caste and Scheduled Tribe (Prevention of

Atrocities) Act 1989 (hereinafter referred to as

SC/ST Act) registered at Police Station Tilak Marg.

2. Petitioner was working as Manager with North

Zone Railway Employees, CTC Society Ltd., Baroda

House, whereas complainant Amit Chauhan was

working as assistant with the said society.

Petitioner had come to know that there was some

misappropriation of funds and fraud in the

organization as the LIC premium of Rs. 50/- paid by

the members of the society was never paid to the

Life Insurance Corporation of India (LIC) on

account of insurance. Petitioner filed complaints

with LIC and other agencies and because of these

complaints, Chairman Anil Kumar Rajpal, North

Zone Railways Employees, Baroda House was

unhappy as he apprehended being caught for fraud

during investigation of the said complaints.

Petitioner was suspended from service on

21.12.2005 by the Chairman and petitioner filed a

suit against suspension order on 23.1.2006. In the

said case the Chairman was issued notice for

appearance on 1.2.2006. The said suit is pending

adjudication.

3. In brief, the case of the prosecution is that on

2.2.2006 complainant Amit Chauhan made a

complaint alleging that on 27.1.2006 at about

11.15 AM he had gone to the upper floor of the

offices, when intercom no. 27 installed in the office

cabin of the petitioner started ringing and since the

door was open, complainant entered the office

cabin of the petitioner to receive the phone. Upon

questioning by the petitioner, complainant replied

that he had entered the cabin to receive the phone

as nobody was there, on which petitioner started

abusing him saying ―Pata Nahin Is Karyaliya Mein

Kahan - Kahan Se Chure Bharti Kar Liye Saale

Bina Puchche Mere Cebin Mein Ghus Aate Hain‖

(from where-where Chure have been employed

saale entered into my cabin without my

permission) and pushed the complainant out of the

cabin. This alleged act of lewdness was done and

the offending words were spoken by the petitioner

when Sh. Subhash Chander, Sh. Umesh Sharma,

Sh. Kishore Kumar, Sh. Ajay Kumar, Smt. Sonia

and Sh. Kishan Kumar were sitting in the office.

After preliminary enquiry FIR No. 266/2006 under

Section 3(1)(x) of SC/ST Act was registered against

the petitioner on 4.7.2006.

4. Petitioner has sought quashing of the FIR on the

following grounds:

(1) The FIR does not contain the ingredients

contained in Section 3(1)(x) of the SC/ST Act

i.e. the FIR does not disclose that the

petitioner was aware that complainant

belonged to Scheduled Caste/Scheduled

Tribe. Even the FIR does not disclose that

complainant belonged to Scheduled

Caste/Scheduled Tribe.

(2) Complainant alleged that the offence took

place inside the cabin and as such the

incident did not take place within the ambit of

public view as required under the provisions

of Section 3(1)(x) of the SC/ST Act.

(3) The present FIR is an abuse of process of law

as the same has been filed by the complainant

to take revenge against the petitioner on

behest of the Chairman of the organization,

where the petitioner and complainant

worked.

(4) There is a delay in filing of the complaint

dated 2.2.2006 as the alleged date of

occurrence of the incident being 27.1.2006.

(5) Allegations mentioned in the FIR are

implausible and false as the petitioner was

suspended from service on 21.12.2005 and

had handed over charge of the office cabin to

the officer as directed in suspension letter.

During the course of suspension petitioner

could not have entered the office.

(6) Under Section 3(1)(x) it is mandatory that the

alleged insult or intimidation should be done

with an intent to humiliate, by the person

against whom the complaint has been lodged.

However, no such averment is contained in

the FIR.

5. Mr. Hitender Kapur, learned counsel for the

petitioner, has argued that ingredients of Section

3(1)(x) of the SC/ST Act are not made out in the

present case as petitioner did not know that

complainant belonged to Scheduled Caste/

Scheduled Tribe on the date of the alleged

incident and the complainant obtained and

produced the scheduled caste certificate only after

the registration of the FIR; and that petitioner had

no intention to offend the complainant nor he was

present in the cabin at the time of alleged incident.

It is further argued that there was no occasion for

the petitioner to use the offending words as

narrated in the FIR with a view to insult or

intimidate or with an intention to humiliate the

complainant. It is also emphasized by the counsel

for the petitioner that as per the FIR itself the

incident had allegedly taken place in the cabin of

the petitioner and in front of the persons named in

the FIR as witnesses who were sitting in the office

at the relevant time, therefore, it could not be said

that the offending words were used at the place

within public view. It is further submitted that

petitioner has been falsely implicated in this case

because he had made complaints against the

Chairman of North Zone Railway Employees and

others for misappropriating the funds and

committing fraud in the organization by not

depositing the LIC premium paid by the members

of the society to the LIC on account of insurance.

It is also argued that petitioner was involved by the

complainant in a number of other cases with a view

to pressurize the petitioner to withdraw his

complaint filed against the Chairman for offence of

cheating, fraud and misappropriation etc. in which

the investigating agency have already filed closure

reports. Learned counsel for the petitioner has

referred to:

1. Mukesh Kumar Saini v. State (Delhi administration) - 2001 Cr.L.J. 4587.

2. Daya Bhatnagar & Ors. v. State - 2004 (2) JCC 1136.

3. Smt. Deepa Bajwa v. State - 2004 (3) JCC 1754.

6. Before examining the question whether on the

allegations made in the FIR prima facie any offence

under Section 3(1)(x) is made out against the

petitioner, it is necessary to examine provisions of

Section 3(1)(x) of SC/ST Act. It reads:

―3. Punishments for offences of atrocities.-- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --

(i) to (ix) ....

(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.‖

Thus the basic ingredients for making an offence

under Section 3(1)(x) of SC/ST Act are:

a. There must be an intentional insult or

intimidation;

b. Insult must be with intent to humiliate

SC/ST member by a non SC/ST member.

c. This insult must have been done in any

place within public view.

7. The expression ‗intentional insult or intimidation

with intention to humiliate' contained in the

aforesaid Section makes it crystal clear that

mensrea is an essential ingredient of the offence

and it must be established that accused had the

knowledge that the victim was an SC/ST member

and the offence was committed for that very

reason. If a person is merely called by caste, it

would not attract the provisions of SC/ST Act.

There should be specific accusation of calling the

person by caste with an intention to humiliate

against the accused. Provisions contained in this

Section are penal in nature and therefore, have to

be given a strict interpretation. In case any of the

ingredients are found to be missing or lacking, it

would not constitute an offence under SC/ST Act.

8. In Mukesh Kumar Saini and others v. State

(Delhi Administration) - (supra), wherein

accused had uttered humiliating words to the

complainant and his brother and FIR under Section

3(1)(x) of SC/ST Act was registered. The Court

observed that as per the FIR, humiliating words

were uttered by the accused while brother of the

complainant was being dragged inside before the

arrival of the neighbours, these words could not

have been said to have been uttered in the public

view and ingredients of the offence under Section

3(1)(x) of the SC/ST Act were not made out. This

Court interpreted Section 3(1)(x) of SC/ST Act as

below:

―7. The basic ingredients of the offence under Clause (x) of sub- section (1) of Section 3 of the SC/ST Act are: (a) that there must be an ―intentional insult‖ or ―intimidation‖ with ―intend‖ to humiliate SC/ST member by a non-SC/ST member; (b) and that insult must have been done in any place within the ―Public view‖. The use of expression ―intentional insult or intimidation‖ with ―intention‖ to humiliate, makes it abundantly clear that the mens rea is an essential ingredient of the offence and it must also be established that the accused had the knowledge that the victim is the SC/ST and that the offence was committed for that reason. Merely calling a person by caste would not attract the provisions of this Act. There must be specific accusation alleged against each of the accused. Section 34 of the Indian Penal Code cannot be pressed into service. Omnibus statement that all the accused persons uttered allegedly humiliating words may not be enough. This being a penal

provision has to be given a strict interpretation. If any of the ingredients is found lacking, it would not constitute the offence.......‖

9. Proposition of law thus is clear. Simply because

Section 3(1)(x) of SC/ST Act finds mention in the

FIR by itself cannot be a ground to conclude that

prima facie an offence under the alone said Section

of SC/ST Act has been made out. Judicial scrutiny

of the documents in such like cases is permissible

to evaluate whether the material relied upon by the

prosecution revealed the existence of basic

ingredients of the offence or not. For that limited

purpose, the Court can sift and weigh the material

placed before it, before examining the question

whether on the allegations made in the FIR, prima

facie any offence under Section 3(1)(x) of SC/ST

act is made out.

10. In the present case, alleged occurrence took place

when the complainant went inside the cabin of the

petitioner to attend phone call to which petitioner

objected and when complainant tried to explain

why he had entered the cabin, humiliating and

offending words were used by the petitioner.

Under these circumstances, prima facie it cannot

be said that petitioner had any intention to

humiliate, insult or intimidate the complainant.

11. Learned counsel for the petitioner has pointed out

that even the Scheduled Caste certificate was

obtained by the petitioner after registration of the

FIR and at the time of alleged occurrence

petitioner was not in the know that complainant

was a SC/ST member. As per the status report

filed by respondent No. 1, the caste certificate was

placed on record on 17.7.2006 and statement of

the witnesses were recorded thereafter and the

chargesheet was filed on 30.8.2006. The incident

had taken place on 27.1.2006 and FIR was

registered on 4.7.2006 i.e. after about 5-6 months

of the incident.

12. In the FIR there is no mention of the fact that

complainant was an SC/ST member and this fact

was known to the petitioner at the time of

commission of the offence. At the time of

registration of the FIR, complaint must disclose

essential ingredients of the offence and in case a

complaint lacks or is wanting in any of the

essential ingredients, the lacuna or deficiency

cannot be filled up by obtaining additional

complaint or supplementary statement of the

witnesses and thereafter proceed to register an

FIR. If such a latitude is allowed, it would create

undue advantage as well as opportunity for

unscrupulous complainants to nail others by hook

or by crook, inspite of the fact that their initial

complaint did not make out the offence as

complained of. This would also encourage misuse

of process of law. First narration of facts in the

FIR is always an important factor for adjudicating

as to whether an accused has committed an

offence.

13. Status report filed by respondent No. 1, as pointed

out above, shows that complaint was kept pending

as ingredients of offence under Section 3(1)(x) of

the Act were not complete and after obtaining the

legal opinion and after holding enquiry and

recording of supplementary statements of the

complainant and other witnesses in which they

stated that petitioner had knowledge about the

complainant being SC/ST member, the FIR in

question was registered.

14. In Smt. Deepa Bajwa v. State & Ors. - (Supra)

under such like circumstances, it was observed:

―6. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of.

Such a course would be utter abuse of the process of law.

First version as disclosed in a complaint is always important

for adjudicating as to whether an accused has committed or not an offence.‖

15. Under these circumstances, enquiry conducted by

the Investigating Officer and the statements

subsequently recorded by him to the effect that

petitioner knew that complainant was an SC/ST

member was, probably with a view to falsely

implicate the petitioner in this case, might be on

behest of Chairman; Anil Kumar Rajpal, North

Zone Railways Employees, CTC Society. False

implication of the petitioner in other cases by the

complainant wherein closure reports have been

filed also indicates that this complaint was filed by

the complainant with a view to falsely implicate the

petitioner by subsequently alleging that petitioner

knew that he was an SC/ST member.

16. Now it is to be seen if the words uttered by the

petitioner were within ‗public view'. ‗Public view'

does not necessarily mean that there should be

large number of persons present at the time of the

incident. Even few members of the public can hear

and view the offending words being used and in

that case also the offence would be made out,

provided other ingredients of the section are

satisfied.

17. Expression ―public‖ is a poli-morphus word which

has different meanings, which is used as noun or as

an adjective. As noun, ―public‖ means a body of

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 politics, or all the citizens of the

state. In other words, the word public 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.

Therefore, public means inhabitants of a particular

place, may be all or few or the people of the

neighbourhood. As an adjective, ‗public' would

have meaning upon the subjects to which it is

applied. SC/ST Act has been enacted with a view

to protect a weaker section of the society from

various kinds of atrocities that might be

perpetrated against SC/STs which find

enumeration in Section 3 of the SC/ST Act as

constituting an offence. Court has to keep in mind

that offence under the SC/ST Act are quite grave

and provide stringent punishment and therefore,

stronger proof is required. Court has to adopt an

interpretation which suppresses or evades the

mischief which might have been played and

advances the object of the Act. Therefore, ‗public

view' appearing in Section 3(1)(x) of SC/ST Act has

to be interpreted to mean the presence of the

public persons, however small may be, and those

persons are 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 have to be

excluded from the definition of ‗public view'.

18. In Daya Bhatnagar & Ors. v. State (supra) while

in agreement with the interpretation put on the

expression ―public view‖ by B.A. Khan, J., in the

said case on reference for interpretation of the

expression ―public view‖ appearing in Section

3(1)(x) of SC/ST Act by the Division Bench, while

hearing the petition seeking quashing of the FIR

registered under Section 3(1)(x) of the Act against

the petitioners in the said case Sh. S.K. Aggarwal,

J. reproduced the relevant portion of the views of

B.A. Khan, J., in his order which reads:

―I accordingly hold that expression within ‗public view' occurring in Section 3(1)(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.‖

19. In the reference public view was also further

interpreted to mean:

――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.‖

20. In the present case, witnesses named in the FIR

are employees of North Zone Railways Employees,

CTC Society and were allegedly sitting in the

office. They being employees of the Society were

subordinates to the Chairperson Anil Kumar Rajpal

and therefore, can be termed as interested

witnesses. Besides, the cabin was made of glass,

though as stated it was open from the top. The fact

remains that the alleged offending/humiliating

words used by the petitioner while addressing the

complainant could not have been heard or viewed

by any of these witnesses, cabin being a closed

space. Also, the petitioner had already handed

over the keys of the Almirah etc. to Sh. U.S. Bhalla,

the branch Manager, in compliance with the

suspension order. The petitioner was under

suspension at the relevant time and as per the

attendance register, his presence was not marked

in the attendance registered for the said day.

Under these circumstances, when petitioner denies

his presence at the spot and denies the incident

having taken place, possibility of his false

implication in this case by the complainant cannot

be ruled out. The fact that complainant had

previously got registered two FIRs against the

petitioner and the parties were inimical to each

other before the registration of the FIR can also be

a reason for false implication of the petitioner in

this case.

21. Essential ingredients of Section 3(1)(x) of SC/ST

Act are not made out from the narration of the

incident in the FIR and the complaint lacks

material particulars. The prosecution cannot be

allowed to fill in lacuna or deficiency by obtaining

additional complaint or supplementary statement

and thereafter proceed to register an FIR against

the petitioner. Since complaint lacks essential

ingredients to make out an offence under Section

3(1)(x) of SC/ST Act, it is a fit case for the Court to

exercise its power under Article 226 of the

Constitution of India read with Section 482 Cr.P.C.

and quash the FIR and the proceedings initiated in

consequence thereof.

22. Hence, Petition is allowed. FIR No. 266/2006 under

Section 3(1)(x) of SC/ST Act Police Station Tilak

Marg is hereby quashed.

Attested copy of the order be sent to the Trial

Court as well as to the State.

( ARUNA SURESH ) JUDGE January 09, 2009 jk