Delhi High Court
Praveen Kumar @ Prashant vs State & Anr on 28 April, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18.02.2020
Pronounced on: 28.04.2020
+ CRL.A. 817/2018
PRAVEEN KUMAR @ PRASHANT ..... Appellant
Through Mr.Kapil Modi, AR of appellant.
versus
STATE & ORS. ..... Respondents
Through Mr. Hirein Sharma, APP for State.
SI Laxman Kumar PS Fatehpur Beri.
Mr.Shiv Chopra, Adv. with Ms.Richa
Rebhan, Adv. for R-6.
Mr.Ansh Singh Luthra, Adv. for R-7
& 8.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
Crl. M.A.43246/2019, 2656/2020, 2791/2020 & 2794/2020
1. Allowed, subject to all just exceptions.
2. Applications are disposed of.
CRL.A. 817/2018 & Crl.M.A. 43245/2019, 2655/2020, 2790/2020 &
2793-94/2020
3. Present appeal is filed under section 14A of SC & ST (Prevention of
Atrocities) Act 1989 as amended by Act 2015 (hereinafter referred to as
„SC/ST Act‟) read with Article 227 of Constitution of India read with section
483 Cr.P.C. for setting aside the impugned order dated 02.08.2018 passed by
learned ASJ-02, Special Judge (South), Saket Court, New Delhi and for
registration of FIR in accordance with law.
4. Case of appellant is that he belongs to schedule caste category aged
23 years. He is an International Horse Riding Champion (Equitation) and
his goal is to represent India in Tokyo Olympic 2020 in Dressage. He has
won over 30 Medals in the International Development League Competitions.
However, over the last two years, he is being victim of atrocities inflicted
upon him by his 3 competitors (including their parents) namely; Ameera
Pasrich, Shivani & Amir Pasrich (parent of Ameera), Anush Aggarwala,
Priti Aggarwala (mother of Anush) & Shikha Mundkur. The alleged
accused persons belong to upper caste and rich families. They have
intentionally & knowingly caste abused and intimidated the appellant within
public view with intent to humiliate and shatter his self respect on several
occasions at his trainer Kapil Modi‟s farm. However, he kept silent out of
fear.
5. The issues raised in present appeal are as under:
a. Whether The Ld. ASJ has complied with the directions as directed by
this Court in disposing the appellant's application?
b. Whether the Ld. Special Judge has wilfully disobeyed the directions
of this Court qua the disposal of the appellant's application?
c. Whether the Ld. ASJ has erred by not ordering registration of FIR
after applying the test of Lalita Kumari and SC/ST Act under Rule 5
on the complaint dated 29.04.2018 of the appellant which prima facie
discloses atrocities which are non bailable offences under SC & ST
Act.
d. Whether the Ld. ASJ under section 156(3) Cr.P.C. is empowered to
ascertain the truthfulness of the allegations and the bonafide of the
complainant?
e. Whether the Ld. ASJ under section 156(3) Cr.P.C. is empowered to
appreciate and adjudicate on the veracity of the incriminating
documentary evidence of the "Alliance" chats wherein the accused
have themselves admitted to hatching a criminal conspiracy and acid
attacking the appellant?
6. Learned counsel appearing on behalf of the respondents have raised
strong preliminary objection on appearing of Mr.Kapil Modi who
representing the appellant. It was prayed that let this issue be decided first.
Accordingly, issue is being decided interalia:
7. Regarding the issues raised by the respondents, the appellant being
represented by Mr.Kapil Modi, in case of Dr. Subhash Kashinath Mahajan
(supra), on 01.10.2019 Ld. Attorney General's submissions were recorded
by Hon'ble the Supreme Court of India where he stated that the low
conviction rate under the Act is a failure of the criminal justice system and
not an abuse of law. The witnesses are pressurized in several manners and
don't support Dalits, biased mindset continues, complainant hardly musters
the courage. Further observed that SC/ST have been socially outcasts for
centuries. Eye witnesses don't support them, provisions have been made for
the protection of witnesses under the Act. The provisions of the Act are in
essence, concomitants covering various facets of Article 21 of the
Constitution of India.
8. Accordingly, Hon'ble Apex Court in the Review Judgment of
Kashinath Mahajan (supra) has held that there is no presumption of misuse
of the SC/ST Act and neither can it be presumed that members of elite class
don't misuse the law. SC/ST hardly muster the courage to lodge even an FIR
much less a false and, in case, FIR is found to be false, it may be due to the
faulty investigation. SC/ST cannot be treated as liars or crooks who would
lodge false reports to secure monetary benefits or take revenge.
9. Vide Appreciation Letter dated 25.03.2019 issued by National
Campaign on Dalit Human Rights, Mr. Kapil Modi's contribution have been
recognized along with International Dressage Development League for their
significant contribution in making the Olympic sport of Dressage accessible
to Dalits via the IDDL competition platform. It is further stated in said letter
that in India, Dalit men and boys are beaten and murdered for riding a horse.
The contribution of Mr Kapil Modi and the IDDL in achieving the
constitutional goal of equality for Dalit horse riders is greatly appreciated by
the NCDHR. Thus, Kapil Modi is appearing as representative of the
appellant. Further, Chapter IV-A Section 15A (12) which says that "it shall
be the right of the atrocity victims or their dependents, to take assistance
from the Non-Government Organisations, Social workers or advocates."
Thus, he (Kapil Modi) being social worker and appreciated by
aforementioned NGO, is representing appellant. Apart, from that he has
already appeared before the Division Bench of this Court in LPA No.
344/2019.
10. Moreover, under Section 32 of the Advocates Act, prescribed as
under:
"Notwithstanding anything contained in this chapter, any
court, authority or person may permit any person, not
enrolled as an advocate under this Act, to appear before
it or him in any particular case".
11. In Harishankar Rastogi vs. Girdhari Sharma: AIR 1978 SC 1019, it
is held that "a private person who is not an advocate, has no right to barge
into court and claim to argue for a party. He must get the prior permission
of the Court, for which the motion must come from the party himself. It is
open to the Court to grant or withhold permission in its discretion. In fact
the court may, even after grant of permission, withdraw it half-way through
if the representative proves himself reprehensible. The antecedents, the
relationship, the reasons for requisitioning the services of the private person
and a variety of other circumstances must be gathered before grant or
refusal of permission."
Undisputedly, Kapil Modi (AR) is trainer of appellant who appeared
in person in court and has reposed trust upon said Modi. He is a social
worker and has been recognized and appreciated by „National Campaign on
Dalit Human Rights‟. Moreover, this Court appreciates his assistance
rendered while maintaining decorum of the Court. Thus, in view of above, in
my considered opinion, he is competent to represent appellant who belongs
to scheduled caste.
12. Mr.Kapil Modi, Authorised Representative of the appellant submits
that Ld. MM on 06.07.2018 issued a contempt notice to ACP Pathania for
violating the directions of the Apex Court in Lalita Kumari vs. Govt. of
U.P.: (2014) 2 SCC 1 and Dr. Subhash Kashinath Mahajan vs. State of
Maharashtra: (2018) 6 SCC 454. The concerned MM on 12.07.2018
returned the victims application and it was consigned to Ld. ASJ on
18.07.2018. In the impugned order 02.08.2018, Ld. ASJ has not even
mentioned that a contempt notice was issued to the ACP by the concerned
court.
13. He also submits that the Apex court in Dr. Subhash Kashinath
Mahajan (supra) has given finite directions that a preliminary enquiry must
be conducted within 7 days as per the directions in Lalita Kumari (supra)
by a DSP rank officer. The relevant paragraph from the judgment is
extracted below:
"79. We are of the view that cases under the Atrocities
Act also fall in exceptional category where preliminary
inquiry must be held. Such inquiry must be time-bound
and should not exceed seven days in view of directions in
Lalita Kumari (supra)."
14. He submits that in the present case, a bogus preliminary enquiry was
conducted by the ACP over a period of around 59 days which is
corroborated by the ACP's submissions in ATR dated 18.06.2018. Inspite of
knowing the aforementioned facts, the Ld. ASJ has made the following
perverse finding in paragraph 23 of the impugned order:
''23 In this scenario, mere non-filing of action taken
report within 7 days could not be taken as the blatant
violation of the directions in Subhash Kashinath
Mahajan's case and furthermore merely on the basis of
delay, this report cannot be thrown away in present facts
and circumstances."
15. It is submitted that by not finding any illegality in the report is wilful
violations of the directions issued in case of Dr. Subhash Mahajan (supra),
thus Ld. ASJ is in wilful contempt of Article 141 of the Constitution of India
and in contempt of directions issued by Hon‟ble Supreme Court in case of
Dr. Subhash Mahajan (supra) whereby held as under:
"81. iv) To avoid false implication of an innocent, a
preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make out a
case under the Atrocities Act and that, the allegations are
not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be
actionable by way of disciplinary action as well as
contempt."
16. Accordingly, submits that in view of above directions, the
observations of learned ASJ are perverse in law. Further submitted that SI
S.K. Singh conducted a forced written interrogation of the appellant on
16.06.2018, whereas, only ACP/DSP rank officer is competent to conduct
inquiry as per SC/ST Act. Thus, it is not legal for the learned ASJ to assume
and record in order dated 05.06.2018 in CT case No.536/2018 that there is
no illegality in ACP Pathania to direct a Sub Inspector from conducting
interrogation. In cases of Dr.Subhash Mahajan (supra) and Lalita Kumari
(supra) there is no dictum of the Supreme Court for conducting written
interrogations. Accordingly, the victim had sent an email to Police and other
authorities against said illegal interrogations. If the forced interrogation of
the appellant on 16.06.2018 was legal then why did the ACP maliciously
concealed this fact from his ATRs dated 18.06.2018 and 09.07.2018 filed
before learned MM.
17. Mr.Kapil Modi/AR of appellant submits that it is perverse as per the
principle of natural justice for the Learned ASJ to dismiss the appellant‟s
application by relying heavily on the fake ATR's without first adjudicating
on the victim's complaint. Such an act, under the SC/ST Act, is an offence
punishable with minimum imprisonment of 1 year.
18. The appellant in his forced written interrogation of 16.06.2018 has
categorically stated the reason that he did not call the police immediately
after the incidents of atrocities inflicted upon him by the accused, because he
was scared. During his interrogation, SI S.K. Singh in order to shield the
accused Anush, Priti Agarwalla & Shivani Pasrich (former Miss India)
maliciously did not ask any questions qua atrocities inflicted by them upon
the victim in order to exonerate the accused by stating that victim has not
given any date or time as to when the atrocities were committed by the
accused Anush and Priti. To exonerate accused Shivani Pasrich, the police
filed a fake inspection report on 28.04.2018.
19. Para 111(vi)(e) of Lalita Kumari (supra) is relevant here and
extracted below:
"111) In view of the aforesaid discussion, we hold:
(vi) As to what type and In which cases preliminary
Inquiry Is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
(e) Cases where there is abnormal delay/latches in
initiating criminal prosecution, for example, over 3
months delay in reporting the matter without
satisfactorily explaining the reasons for delay."
20. Mr.Modi submits that as per the above directions, the victim has
stated that he did not report the atrocities inflicted upon him immediately
because of fear. In context of directions in para 111 (vi) (e) of Lalita
Kumari (supra) recently in PS Fathepur Beri a woman filed a rape
complaint against Godman Daati Maharaj stating that she was raped by him
two years ago and because of fear, she did not report the complaint earlier.
The SHO who refused to receive the appellant‟s complaint on 29.04.2018,
but immediately registers FIR on the woman's complaint and the case is
being investigated by the crime branch.
21. He further submits that in the present case, the appellant, just because
belongs from a poor schedule caste family, the police refuses to accept the
reason for delay in filing the complaint by the victim and in order to shield
the accused, branded the complaint of the victim as malafide and motivated
and shockingly the learned ASJ believed this fake ATR and ignored over
200 pages of documentary evidence and averments which prove the guilt of
the accused police officers and the offenders filed in Annexure-3, 4 colly for
reasons best known to him.
22. Further submitted that coordinate bench of this Court in W.P.(C)
No.7868/2018 (filed by appellant and his trainer) on 30.07.2018 has directed
the DSPCA not to conduct any inspections based on the false complaints of
the accused at the premises of Kapil Modi. The whatsapp chat records of
"Alliance" was the crucial evidence placed by the appellant on record to
expose the execution of the criminal conspiracy of the accused to steal his
horses.
23. Another coordinate bench of this Court in W.P.(Crl.) on 30.07.2018
has issued notices on the FIR quashing petition filed by the victim's trainer
(Kapil Modi). The planning of this fake FIR has been exposed in the chat
records of "Alliance" group wherein the accused have admitted to the
conspiracy of framing the petitioner's trainer with the goal of extortion.
However, Ld. ASJ, for reasons best known to him, has found no prima facie
criminality in the said chat records of "Alliance" wherein the accused have
admitted to their criminal plans of acid attacking the appellant and the
accused have already executed their plans which are mentioned in these
chats.
24. The Apex court in several judgments has held that a Judge should
actively find out the truth by separating the grain from the chaff. Ld. ASJ
has quoted the Apex court judgment of Ramdev Food Products vs. State of
Gujarat: 2015 (6) SCC 439 wherein held that "the magistrate must apply
his judicial mind".
25. Now question arises, in the context of entire averments made from
paragraph 6 to 14 of this appeal, whether the learned ASJ applied his
judicial mind while dismissing the appellant‟s application.
26. In Khurram Rauf Khan vs. State of U.P. & Anr. dated 14.12.2014
the High Court of Allahabad observed as under:
"..Para-3: It is contended that the impugned order is
illegal because the learned Magistrate had tried to assess
the truthfulness of the allegations for which he was not
legally permitted and has recorded the finding on the
basis of the allegations made in application under section
156 (3) Cr.P.C. prima facie cognizable offence is not
made out, the finding is perverse. It is against the
evidence present on the record because on the basis of
the allegations made in the application under section 156
(3) Cr.P.C. prima facie cognizable offence is made out.
Learned A.G.A. opposed the contention of the petitioner
by submitting that the learned Magistrate has passed a
reasoned order.
"Para-4: From perusal of the application under section
156 (3) Cr.P.C., it appears that on the basis of the
allegations made therein, prima facie cognizable offence
is made out and from the perusal of the impugned order,
it appears that the learned Magistrate had tried to assess
the truthfulness of the allegations and he had scrutinised
the allegations for which he was not legally empowered.
As such the impugned order is set aside."
[Emphasis supplied]
27. A Three Judge bench of Hon'ble Supreme Court in the case of
National Campaign on Dalit Human Rights & Ors. vs. Union of India &
Ors.: (2017) 2 SCC 432 in [W.P.(C) No. 140 of 2006] held as under:
''12. We have carefully examined the material on record
and we are of the opinion that there has been a failure on
the part of the concerned authorities in complying with
the provisions of the Act and Rules. The laudable object
with which the Act had been made is defeated by the
indifferent attitude of the authorities. . .................
The constitutional goal of equality for all the citizens of
this country can be achieved only when the rights of the
Scheduled Castes and Scheduled Tribes are protected.
The abundant material on record proves that the
authorities concerned are guilty of not enforcing the
provisions of the Act. The travails of the members of the
Scheduled Castes and the Scheduled Tribes continue
unabated. We are satisfied that the Central Government
and State Governments should be directed to strictly
enforce the provisions of the Act and we do so."
28. On the other hand, counsel on behalf of respondent No.5 submitted
that she is young girl, aged about 21 years and at the time of complaint, she
was aged about 18-19 years. Appellant has wrongly, illegally and malafidely
filed the present complaint and proceedings with a view to defame
respondent No.5 and as a counter-blast to FIR No.134/2018 dated
21.04.2018 registered at Police Station Fatehpur Beri, New Delhi against
Kapil Modi (AR of the appellant herein).
29. Similarly, two more students of Kapil Modi also filed a complaint
against him which culminated into FIR No.135/2018 dated 21.04.2018.
Present appeal has been filed, however, at the instance and behest of Kapil
Modi. On 17.07.2017, respondent No.5 and her father had entered into an
agreement with Kapil Modi and in accordance with said agreement,
respondent No.5 paid total amount of Rs.31 lakhs to him. The said amount
was paid with the understanding that respondent No.5 would be trained and
secured valuable riding rights over a warm blood horse called World Vision.
However, on 03.04.2018, said respondent and her father filed a complaint
with Police Station Fatehpur Beri, New Delhi, bringing out the illegal acts
committed by Kapil Modi. As respondent No.5 was cheated and suffered
numerous indignities at the hands of Kapil Modi, on 15.04.2018, respondent
No.5 (and also respondent Nos.3, 6, 7 and 8) submitted detailed complaints
dated 14.04.2018, on the basis of which an FIR No.134 dated 21.04.2018 for
the offences punishable under Sections 354-A/509 IPC was registered at
Police Station Fatehpur Beri, New Delhi against Kapil Modi. Insofar as it
concerned the case of respondent No.5, subsequently in the course of
investigations, Section 420 IPC has been added. Similarly, on the complaint
filed by respondent No.6, an FIR No.135 dated 21.04.2018 was registered
against Kapil Modi. However, to wreck vengeance, Kapil Modi filed a
complaint against respondent No.5 and other private respondents wherein he
relied upon certain redacted printouts of a purported chat of WhatsApp
group called 'Alliance' but full chat was never filed by said Authorised
Representative, because said Modi knew that his complaint dated
22.04.2018 was bogus, therefore, he through present appellant filed a fresh
complaint purportedly dated 29.04.2018 addressed to the S.H.O., P.S.
Fatehpur Beri, New Delhi making allegations against respondent No.5 and
other respondents. Thereafter, filed an application by appellant seeking
directions under Section 156(3) Cr.P.C, however, same was dismissed by
learned Additional Sessions Judge, South District, Saket, New Delhi vide
order dated 02.08.2018 holding as under:
"16. The principle issue before this court whether there is
sufficient material before this court warranting a
direction to concerned SHO U/s 156(3) Cr.P.C. to
register FIR. Apex Court in Dr. SubhaSh Kashinath
Mahajan (supra) after analysing the judgment of Lalita
Kumari in para 79 mandated that a preliminary inquiry
must be held in cases under SC/ST Act and also given
directions in para 83 (iv) as under:
"To avoid false implication of an innocent, a
preliminary enquiry may be conducted by the asp
concerned to find out whether the allegations make
out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.
17. The ACP Rajender Pathania, Competent officer to
inquire into SC/ST complaints filed Action Taken Report
before the Hon'ble High Court and thereafter before the
court of Ld. MM on 09.07.2018 whereupon he found the
allegations under SC/ST Act are vague and, not
substantiated, and concluded that, the present complaint
seem to be filed as an afterthought to counter criminal
cases filed against Mr. Kapil Modi. It is also pertinent to
mention here that the complainant also filed a petition u/s
4 SC/ST Act before this court against special
Commissioner, Southern Range, SHO PS Fatehpur Beri
and the concerned Ld.MM South for not taking action
over the complaint of the complainant, and this court vide
order dated 05.06.2016 dismissed the said complaint, and
as per the record filed by the complainant, the said order
is under challenge before the Hon'ble High Court
through criminal Appeal No. 667/2018 and now is listed
for 25.07.2018.
18. Apex court in case titled 'Ramdev Food Products Vs.
State of Gujarat, 2015 (6) SCC 429, held that the
directions u/s 156(3) Cr.P.C. to be issued by the
Magistrate only after due application of mind. Therefore,
the direction under section 156(3) Cr.P.C is not
mechanical act and this court has to see the entire
material in its true perspective. This view is also
mandated by Dr. Subhash Kashinath Mahajan case in
which the apex court held that to avoid false implication
of an incident, a preliminary inquiry to be conducted by
DSP to find out whether the allegations make out a case
under the Atrocities Act and allegations are not frivolous
or motivated. Therefore, before making any order under
this section, this court has not only to see whether a case
is made out under SC/ST Act but also the fact that
allegations should not be frivolous or motivated.
..........
21. As per those messages, there is a whatsapp message
of Shikha dated 10.03.2018 in that group that she feer
like throwing acid on Prashant, in these messages they
have shown anguish against Kapil and Prashant and also
used the word "faggot (homo sexual male)" against
Prashant. There is nothing in these whatsapp chatting
that they have anything to do with the caste of the
complainant Prashant @ Praveen Kumar. There is
nothing as per this whatsapp record which is the only
documentary evidence relied by the complainant
showing the interactions of the accused, that the
complainant is treated badly because of his caste or
there are caste remarks against him. The word used
„faggot' cannot be termed as a caste remark.
Furthermore, these conversations are not directly with
the complainant. There is no conspiracy appears from
these messages to kill Kapil or to throw acid over the
present complainant though the group members appears
to be sharing their anguish against Kapil Modi or the
complainant. No offence whatsoever appears to have
been committed on the basis of this documentary
evidence i.e. whatsapp messages.
22. Now it is pertinent to peruse complaint date
22.04.2018 in the background of whatsapp messages. The
whatsapp messages is the basis of this complaint,
however as discussed from whatapp messages, it cannot
be inferred that there is any conspiracy to kill Kapil Modi
or to throw acid on complainant. In this complaint dated
22.04.2018 Mr. Kapil Modi raised a plea of harassment
of scheduled caste student Prashant. However, from the
whatsapp messages it cannot be inferred that the anguish,
against Prashant was because of his caste. There is no
allegations of caste remarks in complaint dated
22.04.2018, however later on vide complaint dated
29.04.2018, the allegations were made against Anush
Aggarwala that he had called the accused with caste
remarks and faggot but no date and context mentioned,
thereafter again allegations against Preeti Aggarwala
that she made caste remarks against the complainant,
however in these allegations, there is no date or context
mentioned. Furthermore, there is an allegation against
Ameer Pasrich that on 17th December he made a caste
remark however that appears to be vague in context of
the fact that the complainant himself is an accomplished
International Horse riding champion. The allegations
of 28th January that Shikha and Ameera abused him on
28th January when he was riding on the horse by stating
"you bloody mother fucking faggot". This allegation
also do not contain any caste remarks. Therefore, from
the documents of the complainant fired along with the
application /complaint u/s 156(3) Cr.P.C, the
categorical and clear allegations showing offences
under SC/ST Act, conspicuously missing. The
allegations of plot to kill or the conspiracy of acid attack
is also vague and do not appear to be made out at all on
the face of it. The Action Taken Report in the nature of
preliminary report as mandated by the apex court in Dr.
Subhash Kashinath Mahajan case, also suggest that the
allegations are vague and the entire complaints are found
to be counterblast to the FIRs lodged by the alleged
accused side against Kapil Modi. Ld. Counsel for the
complainant submitted that at this stage the court cannot
see the credibility of the complaint. There is no dispute to
this proposition, however the apex court has clearly
mandated that this court has to see at this stage whether
any case is made out or whether the allegations are
frivolous or motivated.
(emphasis supplied)"
30. Learned counsel appearing on behalf of respondent no.6 submits the
only apparent alleged violations repeatedly cited are in respect of the case of
Lalita Kumar (supra) which call for an investigation within 7 days. It is
alleged that such requirement was not complied with. However, the list of
dates itself is unclear about the date of filing of the police complaint by the
complainant, the petition itself reflect that some complaint was investigated
by the police as per the allegations filed with the petition which resulted in
the first order dated 05.06.2018 passed by learned Additional Sessions
Judge-02 (South), Saket Courts, New Delhi.
31. The two complainants were duly considered by the Ld. Special Judge
and finding was arrived at that in the facts of the case no offence is made out
under the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
32. Counsel for the respondent no.6 further submitted that the appellant
filed W.P. (C) 1864/2015 seeking registration of an FIR and same was
disposed of vide order dated 18.06.2018 by this Court by issuing directions
to the Ld. Metropolitan Magistrate to dispose of the matter in accordance
with law.
33. It is further submitted that respondent no.6 got registered FIR No.135
against Kapil Modi, who is the Authorized Representative appearing on
behalf of appellant in the present case. The contents of the FIR includes
reference to various wrongful actions committed by the AR of appellant
herein, which require investigation. The said FIR was originally registered
by the police under Section 354-A and 509 IPC. True facts of the case
required careful consideration of matters that had been placed before the
Trial Court and thus were the subject of an application under Section 156 (3)
in a court monitored proceedings. It was during the course of the hearing of
said application, the learned MM, vide order dated 24.04.2019 added the
offence of cheating under Section 420 during the police investigation. The
complaint filed by the respondent no.6 shows how the Authorized
Representative of the appellant has cheated and enticed the said respondent
to use his Academy (Called the Olympic Riding and Equestrian Academy or
"OREA" hereinafter referred to as "OREA" or the "ACADEMY" for short)
and was misled to believe that she had a lifetime opportunity for chasing her
dreams to reach the Asian/Olympics games. Thus, the litigations initiated
by the appellant herein, who is an employee and student of Mr. Kapil Modi,
are an evasive action against the present respondent through false cases.
34. Moreover, Section 15(A) and (12) of the SC/ST Act provide that
victim can be assisted by a social worker and Kapil Modi, AR of appellant
in the said case is not doing an act of social work or assistance to the alleged
victim as per the Act. On the contrary, Mr. Modi along with the appellant is
clearly misusing the provisions of the Act to fulfil his own self interest and
ill motive. Thus, it is nothing but an attempt to pressurize the young females
i.e. respondent nos.4 to 6 to withdraw two FIR‟s filed against Mr. Modi
which in depth explain the acts of sexual harassment and outraging modesty,
cheating, animal cruelty etc. committed by Mr. Modi.
35. It is further submitted on behalf of respondent no.6 that whatsapp chat
records cannot be commented upon until the same can be proved in
accordance with law. The appellant has relied upon the alleged chats
mentioned in writ petition filed by AR for quashing of FIR Nos. 134/2018
and 135/2018 filed against him under Section 354-A and 509 IPC. The chats
have been repeatedly adduced in each case filed by the appellant or
Authorized Representative in his individual capacity. The said alleged chats
are in his own version of whatsapp chats, all of which are not authentic, bear
liberal commentary and redaction/removed of anything unsuitable or
inconvenient to the appellant and his Authorized Representative. The chats
referred to are mostly false, redacted, altered and are not a subject matter to
the present appeal. True electronic record can only be appreciated if and
when same is available as a while and once proven as such in accordance
with law.
36. Counsel for the respondent no.8 submits that Mr. Rajender Pathania,
ACP, being the competent officer to enquire into the complaint filed under
SC & ST Act, has enquired and only thereafter learned Court below vide
order 09.07.2018 found the allegations under SC/ST Act are vague and not
substantiated, and also considered that complaint seems to have been filed as
an afterthought to counter criminal cases against Mr. Kapil Modi. In case of
Ramdev Food Products Vs. State of Gujarat: 2015 (6) SCC 439, whereby
the Hon‟ble Supreme Court held that directions under Section 156(3)
Cr.P.C. to be issued by the Magistrate only after due application of mind.
Therefore, the direction under the aforesaid act is not mechanical act and
this Court has to see the entire material in its true perspective. This view is
also mandated by „Dr. Subhash Kashinath Mahajan‟ case in which the
Hon‟ble Supreme Court held that to avoid false implication of an incident,
a preliminary enquiry to be conducted by DSP to find out whether the
allegations make out a case under the Atrocities Act and allegations are not
frivolous or motivated.
37. It is further submitted that the word used „Faggot‟ in the whatsapp
chat cannot be termed as a caste remark. Further, these conversions are not
directly with the complainant. There is no conspiracy appears from these
messages to kill Kapil or throw acid over the appellant/complainant. No
offence whatsoever appears to have been committed on the basis of
whatsapp messages. Moreover, there are no allegations of caste remarks in
complaint dated 22.04.2018, however, later on vide complaint dated
29.04.2018, the allegations were made against Anush Agarwalla (respondent
no.7) that he had called the appellant with caste remarks as „Faggot‟, but no
date and context has been mentioned. Allegations against Priti Agarwalla
(respondent no.8) are that she had made caste remarks against the
complainant, however, in these allegations also, there is no date or context
mentioned. Furthermore, there is an allegation against Ameer Pasrich
(respondent no.3) that on 17th December, he made a caste remark. However,
that appears to be vague in context of the fact that the complainant himself is
an accomplished International Horse Riding Champion. The allegations of
28th January that Shikha (respondent no.6) and Ameera (respondent no.5)
abused him on 28th January when he was residing on the horse by stating
"you bloody mother fucking faggot". These allegations does not contain any
caste remarks. Therefore, from the documents of the complainant filed along
with the application under Section 156(3) Cr.P.C., the categorical and clear
allegations showing offences under SC/ST Act, conspicuously missing.
Thus, the present appeal deserves to be dismissed.
38. Learned counsel for respondents submitted that from the above
sequence of events, it is absolutely clear that the present complaint has been
got filed by Authorised Representative of appellant, only as a counterblast to
complaint filed by respondent No.5 and other respondents against
Authorised Representative, who had outraged the modesty and cheated the
young women with a view to falsely implicate them.
39. In the present appeal, the appellant has sought to invoke Section 3[1]
(r) & (s) of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 against respondents. The said Section reads and
provides as under:-
"(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;"
40. It is argued that in the facts and circumstances of the case, said
Section is not applicable inasmuch as there are no allegations of any kind
whatsoever of the purported/alleged in statements having been made in
public view or at a public place, which is an essential ingredient of the
Section. Public view has been defined to mean that the statement ought to
have been made in the presence of strangers i.e. persons who are not
interested in complainant or accused persons. However, in the present case,
when appellant appeared before the Police Authorities, he clearly and
categorically refused to give details of the witnesses, in whose presence
alleged remarks were made. In this regard, appellant when asked by the
police to give names of the witnesses, he stated as under:-
"Q7 Tell us in detail about the person who was present at
that time?
A7: The name of the witnesses will be given in the Court.
Q8: According to your complaint, on 28th Jan., Ameera
and Shikha used inappropriate words for you. Tell us in
detail what happened that day?
A8: I have mentioned everything in the complaint. 1 don't
remember but both girls were present at the farm on 28 th
Jan."
41. It is submitted that in the complaint, there is no whisper of any public
witness being present or the statements having been made in public view.
The appellant in application under Section 156(3) Cr.P.C. had sought to
name three witnesses in support of his claim:-
i. Complainant himself,
ii. Mr.Kapil Modi,
iii. Naval Commander Kuldeepak Mittal and
iv. Any other witness with permission of Court.
42. Learned counsel for respondents further submitted that though not
named in the original complaint dated 29.04.2019 and later, as an after-
thought in an attempt to fill up lacunae named in application under Section
156(3) Cr.P.C., the said persons are totally interested persons inasmuch as
Mr.Kapil Modi is the Authorised Representative of appellant and is also
representing appellant in the present case. Admittedly appellant, as per
appeal, is a student of Mr.Kapil Modi and thus, is an interested witness and
cannot be considered as an independent witness. Similarly, another named
witness, namely Naval Commander Kuldeepak Mittal, is also an interested
person inasmuch as his son was undergoing training with Mr.Kapil Modi, at
whose instance, present complaint has been filed and who is representing the
complainant. The appellant has sought to name himself as a witness and
statement of complainant himself cannot be considered as a statement of the
witness. The aforesaid witnesses are totally interested persons and their
statements cannot be looked into for any purpose whatsoever.
43. To strengthen his arguments, learned counsel for respondents have
relied upon the case of State vs. Om Prakash Rana & Ors.: 2014(1) JCC
657 whereby held that if names of witnesses are not provided at the first
instance and are belatedly provided, the same cannot be looked into as the
same are after-thought.
44. It is further submitted that in case, complaint lacks or is wanting in
any of the essential ingredients, the lacunae or deficiency cannot be filled-up
by obtaining additional complaint or supplementary statement. In case of
State vs. Om Prakash Rana & Ors. (supra), it is observed as under:
"10. In the present case, the original complaint lodged by
the complainant does not mention in whose presence the
offending words were used by the respondents/accused
persons. There is also nothing on record to show that the
respondents/accused persons were having the knowledge
that the complainant was a member of SC/ST community.
There is nothing on record to show that the offending
words were used in full public view. The names of
alleged witnesses are not mentioned in the complaint
dated 18.7.2012. The witnesses i.e. Meenakshi and Durga
Dutt have alleged themselves to be the eye witnesses. But
their names have not been stated by the complainant in
her complaint, the supplementary statement dated
27.8.2012 of the complainant giving the names of
alleged witnesses can't fill up the lacuna. There is also
delay of 3 days in lodging the FIR. The delay is also not
explained. The basic ingredients of Section 3(x) of the
SC/ST Act are missing in the present case. There is no
illegality in the impugned order which calls for
interference of this court."
45. In case of Kusum Lata vs. State & Others: 2016(4) AD (Delhi) 362,
it is has held as under:-
"18. The question as to what is the correct and real
meaning of the expression public view occurring in
Section 3(1) (x) of the Act came up for consideration
before this Court in Daya Bhatnagarv and others v. State,
109 (2004) DLT 915, which was a case where reference
was made consequent upon the difference of opinion on
the interpretation of the expression "public view" in this
section while hearing the petition seeking quashing of the
First Information Report under Section 3(1) (x) of the Act
against them. In that case, petitioner and the complainant
were neighbours and were residing in the same complex
at Vikas Puri, Delhi. Some disputes arose amongst them
which resulted in registration of the two cross cases - one
under Section 3(1) (x) of the Act and other under Section
354/34 IPC.
19. Hon'ble Justice V.S. Aggarwal (as His Lordship then
was) after exhaustively dealing with facts and the law
referred to the meaning of the words "public and "view"
as explained in Corpus Jurisdiction Secumdum, Black's
Law Dictionary (6th edition) page 1568, Stroud's Judicial
Dictionary of Words and Phrases (6th Edition Volume 3)
observed that the expression "public view" does not
necessarily mean that large number of persons should be
present to constitute public; and that even when one or
two members of the public hear and view the offending
words being used, offence would be made out, provided
other ingredients of section are satisfied. It was held:
"....In other words, it is patent that, therefore, to
bring a matter within the scope and ambit of
expression "public view" firstly the words must be
uttered at a place which is within public view and it
is unnecessary that the number of public persons
herein should be more than one. Even if one or two
members of the public hear and view, as the case
may be, the same and the other ingredients of
section are satisfied, the case would fall within the
ambit of said provision."
20. However, Hon'ble Justice B.A. Khan while
interpreting the expression "public view" in Section
3(1)(x) of the Act went a step further. Learned Judge after
referring to the principles governing interpretation of
statutes as laid down by the Supreme Court in RMD
Chamarbaugwalla v. Union of India [1957] 1 SCR 930
and Commissioner of Income-tax, Orissa V. N.C.
Budharaja and Company and Anr. AIR 1993 SC 2529
held that the report of Babu Lal is liable to be quashed as
persons present with Babu Lal were his associates,
friends, participating members and were not independent
persons so as to constitute "public" within the meaning of
Section 3(1)(x) of the Act.
21. .....
"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 of 'public view' within the
meaning of the expression used."
20. In the light of the above discussion, one part of
the first question under reference, namely, "What is
the correct and real meaning of expression "public
view" occurring in Section 3(i)(x) of SC/ST (POA)
Act, 1989," stands answered."
46. This Court in the case titled as Ms. Gayatri @ Apuma Singh vs. State
& Anr.: 2017(6) AD (Delhi) 14 has held as under:-
"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."
47. Learned counsel for respondents further submitted that appellant
seeks to invoke Section 3[1] (za) (B) of SC/ST Act. However, the said
Section is also not applicable inasmuch as complainant was not on horse on
a wedding procession. The said Section reads and provides as under:-
"(B) mounting or riding bicycles or motor cycles or
wearing footwear or new clothes in public places or
taking out wedding procession, or mounting a horse or
any other vehicle during wedding processions;"
48. Thus, the allegations in complaint do not make out any ground for
invoking said Section and therefore, said Section is also not applicable. In
the present case, there is no allegation of any kind whatsoever that any of the
accused persons has obstructed or prevented complainant from mounting
horse during wedding procession or that complainant has been prevented
from mounting horse at all. Thus, ingredients of Section [1] (za)(B) of
SC/ST Act are also not made out. Further, no offence is made out inasmuch
as the Apex Court has categorically laid down that for an offence under
provisions of the Act, it is necessary that accused person ought to have
stated that he/she belongs to a higher caste. However, no such statement was
made in the present case. The Supreme Court in the case titled as Darshan
Singh Saini Vs. Sohan Singh & Another: 2015 (14) SCC 570 in this regard
has held as under:-
"72. Insofar as the connected appeal filed by the
respondent - Sohan Singh is concerned, who claims that
charges be framed against Darshan Singh Saini and his
father Beli Ram, under the provisions of the Scheduled
Castes and Scheduled Tribes (Atrocities and Prevention)
Act, we are of the view that the High Court was fully
justified in rejecting the aforesaid prayer, on account of
the fact that Sohan Singh did not indicate in his
complaint dated 24-01-2008, and also in the statement
made by him, before the Judicial Magistrate, First
Class, Nalagarh, that the appellant Darshan Singh
Saini belongs to an upper caste. We, therefore, find no
justification in interfering with the impugned order, on
this score also."
49. While concluding arguments, learned counsel for respondents
submitted that essential ingredients of none of the Sections of the Act are
made out, none of the grounds specifically points out any legal infirmity
similar to the ones pointed out above. The nature of the nexus between the
appellant and the Authorised Representative is apparent from the majority of
documents filed unconnected to the Act or to any alleged violations thereof
demonstrating oblique motives, hence, present appeal deserves to be
dismissed.
50. I have heard learned counsel/representative for the parties and perused
the material available on record.
51. It is alleged in complaint dated 29.04.2018 that complainant/appellant
belongs to Scheduled Caste. He is an „International Horse Riding Champion
(Equitation)‟ and his goal is to represent India in Tokyo Olympic 2020 in
Dressage. He has won over 30 Medals in the "International Development
League Competitions". However, over the last two years, he is being victim
of atrocities inflicted upon him by his 3(three) competitors (including their
parents) namely; Ameera Pasrich, Shivani & Amir Pasrich (parents of
Ameera), Anush Aggarwala, Priti Aggarwala (mother of Anush) and Shikha
Mundkur. They have intentionally and knowingly caste abused and
intimidated the appellant within public view with the intention to humiliate
and shatter his self-respect on several occasions at his trainer Kapil Modi‟s
farm. However, he kept silent out of fear.
52. The case put before this Court is that learned Special Judge has erred
by not ordering registration of FIR while applying the test of Lalita Kumari
(supra) and SC/ST Act and Rule-5 on the complaint dated 29.04.2018 which
prima facie discloses atrocities which are non-bailable offences under SC/ST
Act. Further, learned Judge is not empowered to ascertain the truthfulness
of the allegations and bonafide of the complaint. Moreover, learned Special
Judge has no jurisdiction to appreciate and adjudicate on the veracity of the
incriminating documentary evidence of the „Alliance‟ chats wherein the
accused have themselves admitted to hatching a criminal conspiracy and
acid attacking the complainant/appellant.
53. On the issue of jurisdiction, in Ramdev Food Products (supra), the
Hon‟ble Supreme Court held that the Magistrate must apply its judicial mind
while issuing directions under section 156(3) Cr.P.C. to register FIR.
Moreover, in case of Khurram Rauf Khan (supra), High Court of
Allahabad has observed that learned Magistrate had tried to assess the
truthfulness of the allegations and had scrutinised the allegations for which
he was not legally empowered.
54. However, it is trite that the Magistrate has to go through the entire
complaint and if prima facie cognizable case is made out, he is empowered
to direct the police to register FIR. However, if there is no case made out,
he may dismiss the application filed under section 156(3) Cr.P.C. with
liberty to lead evidence under section 200 Cr.P.C.
55. In the case in hand, vide impugned order dated 02.08.2018, learned
Special Judge has observed that as per messages, there is a whatsapp
message of Shikha dated 10.03.2018 that she fear like throwing acid on
Prashant (appellant herein). In these messages, group persons have shown
anguish against Kapil Modi and Prashant/appellant and also used the word
"faggot (homo sexual male)" against Prashant. There is nothing in these
whatsapp chatting that they have anything to do with the caste of
complainant Prashant @ Praveen Kumar. The word used „faggot‟ cannot be
termed as caste remark. Furthermore, these conversations are not directly
with the complainant.
56. It is pertinent to mention here that on the one hand, learned Judge has
recorded that there is a whatsapp message of Shikha dated 10.03.2018 in
„Alliance‟ group that she fear like throwing acid on Prashant; on the other
hand learned Judge records that there is no conspiracy appears from these
messages to kill Kapil Modi or to throw acid over the present complainant.
Thus, observed that no offence whatever appears to have been committed on
the basis of this documentary evidence i.e. whatsapp messages. Moreover,
there are no allegations of caste remarks in complaint dated 22.04.2018,
however, later on vide complaint dated 29.04.2018, the allegations were
made against Anush Aggarwala that he had called the complainant with
caste remarks and „faggot‟ but no date and context mentioned. Thereafter,
again allegations against Preeti Aggarwala that she made caste remarks
against the complainant, however, in these allegations, there is no date or
context mentioned. Furthermore, there is an allegation against Ameer
Pasrich that on 17th December, he made a caste remarks, however, that
appears to be vague in context of the fact that the complainant himself is an
accomplished „International Horse Riding Champion‟. The allegations of
28.01.2018 that Shikha and Ameera abused him when he was riding on the
horse by stating, "you bloody mother fucking faggot". Thus, opined that no
case is made out.
57. Despite above allegations, learned Special Judge opined that from the
documents filed by complainant along with application under section 156(3)
Cr.P.C., the categorical and clear allegations showing offences under section
SC/ST Act, conspicuously missing. Further opined that allegations of plot
to kill or the conspiracy of acid attack is also vague and do not appear to be
made out on the face of it.
58. It is pertinent to mention here that learned Special Judge agreed to the
contention of learned counsel for complainant that at this stage, the Court
cannot see the credibility of the complaint.
59. It is not in dispute that when appellant appeared before the police
authorities, during enquiry, he refused to give details of the witnesses, in
whose presence alleged caste remarks were made. However, he stated that
names of the witnesses will be given in the Court, else he mentioned in the
complaint. Moreover, appellant in application under section 156(3) Cr.P.C.
had sought to name two witnesses, in addition himself, as under:
i. Kapil Modi;
ii. Naval Commander Kuldeepak Mittal; and
iii. Any other witness with permission of the court.
60. But the fact remains that above-named two witnesses have not been
examined during enquiry. Thus, it could not be established whether caste
remarks were made in public view which is pre-condition as per SC/ST Act.
61. Accordingly, to meet the end of justice, this Court hereby directs the
SHO of Police Station Fatehpur Beri to register FIR on the complaint made
by appellant and after investigation file report as per law.
62. However, no coercive steps shall be taken against the alleged accused
persons.
63. Accordingly, impugned order dated 02.08.2018 passed by learned
Special Judge is hereby set-aside.
64. In view of above, present appeal is allowed and disposed of.
65. This order be transmitted to the learned counsel/representative of the
parties.
66. Pending applications stand also disposed of.
(SURESH KUMAR KAIT)
JUDGE
APRIL 28, 2020
ab/rk/ms
