Shekhar S/O Balakrishna Nelavade vs The State Of Karnataka
2022 Latest Caselaw 2840 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 21ST DAY OF FEBRUARY 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.102061/2021

BETWEEN

1.   SHEKHAR S/O BALAKRISHNA NELAVADE,
     AGE. 58 YEARS, OCC. HESCOME EMPLOYEE AND
     CHAIRMAN OF GANDHIWADA CO-OPERATIVE
     HOUSING SOCIETY LTD., HUBBALLI,
     PRESENTLY-
     R/O. PARASWADI KESHWAPUR,
     HUBBALLI, DIST. DHARWAD.

2.   SHRINIVAS S/O VENKATARAO CHARAKU,
     AGE. 56 YEARS, OCC. RAILWAY EMPLOYEE
     R/O. NEHRU NAGAR, HUBBALLI,
     DIST. DHARWAD.

3.   PRABHAKAR S/O RAMACHANDRA PAWAR,
     AGE. 66 YEARS, OCC. SOCIAL WORKER
     R/O. NEHRU NAGAR, HUBBALLI,
     DIST. DHARWAD.

4.   RAMESH S/O GOVINDSWAMI MODALIYAR,
     AGE. 60 YEARS, OCC. PRIVATE SERVICE,
     R/O. NEHRU NAGAR, HUBBALLI,
     DIST. DHARWAD.

5.   MURALIDHAR S/O. GOVINDAPPA RONAD,
     AGE. 58 YEARS,
     OCC. BUSINESS
                            2




     R/O. NEHRU NAGAR, HUBBALLI,
     DIST. DHARWAD.
                                         ...PETITIONERS
     (BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE)

AND :

1.   THE STATE OF KARNATAKA
     REP. BY POLICE STATION
     KESHWAPUR POLICE STATION
     HUBLI, THROUGH PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA,
     DHARWAD-580011.

2.   CHANDRAKANT S/O KRISHNA YADAV
     AGE. 52 YEARS, OCC. BUSINESS,
     R/O. H.NO.368/1, 2ND CROSS,
     RAM NAGAR, HUBBALLI,
     DIST. DHARWAD-580020.
                                          ..RESPONDENTS
     (BY SRI RAMESH CHIGARI, HCGP)


     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C
SEEKING TO SET ASIDE THE ORDER DATED 21.09.2021
PASSED IN SPL.SC/ST. CASE NO.32/2018 ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS AND SPL. JUDGE,
DHARWAD    AS   PER   ANNEXURE-A     OR   THE   OFFENCES
PUNISHABLE U/S. 143, 147, 504, 506, 354 R/W SECTION 149
OF IPC R/W SECTION 3(1) (R) (S) AND 10 AND 11 OF SC/ST
(PREVENTION OF ATROCITIES ACT) AND ALLOW THE INTERIM
APPLICATION FILED U/S. 227 OF CR.P.C FILED BY THE
PETITIONERS AS PER ANNEXURE-N.
     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                 3




                            ORDER

The petitioners are before this Court calling in

question the proceedings in Special SC/ST Case

No.32/2018 registered for the offences punishable under

Sections 143, 147, 504, 506 and 354 read with Section

149 of IPC read with Section 3 (1)(R)(S) and 10 and 11 of

the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989.

2. Heard Sri Shriharsh A.Neelopant, learned counsel

appearing for the petitioners and Sri Ramesh Chigari,

learned HCGP appearing for respondent No.1-State.

3. Brief facts leading to filing of the present petition

as borne out from the pleadings are as follows :

The petitioners are members of Gandhiwada Co-

operative Housing Society Ltd., Hubballi. The 2nd

respondent runs a school as a tenant in the premise owned

by the Co-operative Society. Seeking eviction of the 2nd

respondent who ran the school in the place belonging to

the petitioners-co-operative Society had instituted civil

proceedings seeking such eviction. The said suit came to

be decreed. The result of the decree of the suit was

eviction of the 2nd respondent-complainant. On the

strength of the order of competent Court and also taking

Police protection, the petitioners broke open the lock of the

school, which by then belonged to the petitioners in view of

the decree granted by the Civil Court. Based upon the said

incident, the 2nd respondent, who had lost the case against

the petitioners before the Civil Court, registers a complaint

for the offences punishable under the provisions of the

atrocities Act alleging that the petitioners have hurled

abused against the complainant either in a public or in a

place of public view and have become violates of the

provisions of the Act. Therefore, the offence is publishable

thereunder.

4. The afore narrated facts are not in dispute. The

petitioners did not have themselves indulged in the act of

breaking open the lock of the school. But were executed

the lawful orders passed by the competent Court. The 2nd

respondent having lost the case of eviction against the

petitioners, in order to wreck vengeance without there

being any semblance in evidence for invocation of the

provisions of the Act registers the complaint. The

somewhat similar circumstances, the Hon'ble Apex Court

in the case of Hitesh Verma vs. State of Uttarakhand and

Another, reported in (2020) 10 SCC 710 has held as

follows :

"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an

offence since it is not in the public view (sic) [Ed. :

This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"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."] . The Court held as under :

"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government

or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."

(emphasis in original)

15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge- sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] , it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.

16. There is a dispute about the possession of the land which is the subject-matter of civil dispute between the parties as per Respondent 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding

possession of property pending before the civil court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The appeal is disposed of in the above terms."

5. In the light of the Judgment of the Hon'ble Apex

Court considering the very provisions of the Act. The

backdrop as narrated herein above of the allegations

levelled cannot be burst aside. Therefore, the proceedings

instituted are without doubt one to wreck vengeance

against the petitioners. In these circumstances, if the trial

is permitted to continued that too for the offences alleged

against the petitioners, it would be an abuse of the process

of the law and result in miscarriage of justice.

6. The Trial Court which considered the discharge

application of the petitioners has not considered these facts

and has erred in law in rejecting the discharge application

of the petitioners. Therefore, the order of rejection of the

discharge application of the petitioners is erroneous and

unsustainable.

7. For the aforesaid reasons, the following :

ORDER

(i) The criminal petition is allowed.

(ii) The order rejecting the discharge application dated 21.09.2021 passed in Special SC/ST Case No.32/2018 by the II Additional District and Sessions and Special Judge, Dharwad stands quashed.

(iii)The entire proceedings initiated against the petitioners in Special SC/ST Case No.32/2018 by the II Additional District and Sessions and Special Judge, Dharwad stands quashed qua petitioners.

SD JUDGE CKK