Kerala High Court
Subash vs State Of Kerala on 8 January, 2021
Crl.MC.No.3931 OF 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
Crl.MC.No.3931 OF 2015
AGAINST THE JUDGMENT IN CP 10/2015 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II,NEYYATTINKARA
PETITIONER:
SUBASH, AGED 45 YEARS
S/O. KRISHNAN,KIZHAKKE PUTHEN VEEDU,
NEAR KANDAN SASTHA TEMPLE,
PUIGODU, CHENGAL VILLAGE
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
(CRIME NO 1425/2014 OF PARASALA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT
2 VISHNU,
S/O. SOMAN, DAS SADANAM, NELLIPAZHANJI,
CHENGAL VILLAGE, THIRUVANANTHAPURAM
R2 BY ADV. SRI.R.T.PRADEEP
SRI.SANTOSH PETER, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
08.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.3931 OF 2015 2
O R D E R
Dated this the 8th day of January 2021
The petitioner is the 2nd accused in C.P No.10/2015 on the
file of the Judicial First Class Magistrate Court II, Neyyattinkara.
The above case is taken on file by the learned Magistrate for the
offences under Sections 294(b), 323, 324 r/w Section 34 IPC and
Section 3(1)(x) of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act').
2. The prosecution case is that on 11.11.2014 at 11.15
am, the accused in furtherance of common intention attacked the
informant with stick and called the caste name of the informant
and thereby the accused committed the offences alleged. The
incident in this case was happened on 11.11.2014. Annexure I
FIR is registered alleging the offences punishable under Sections
323 and 324 r/w 34 IPC. Subsequently, after investigation the
final report is filed in which the offences under Sections 294(b),
323 and 324 r/w 34 IPC and Section 3(1)(x) of the SC/ST Act are
also alleged. This Crl.M.C is filed to quash the entire
proceedings in C.P No.10/2015 pending before the committal
court.
3. Heard the learned counsel for the petitioner, the
counsel for the 2nd respondent and the learned Public
Prosecutor.
4. The counsel for the petitioner submitted that even if
the entire allegations are accepted, the offence under Section
3(1)(x) of the SC/ST Act is not attracted in this case.
According to the counsel, the basic ingredients of Section 3(1)
(x) of SC/ST Act is not there evenif the entire allegations in
Annexure 2 final report is accepted. The counsel also
submitted that the allegations in Annexure 2 final report is
that the incident happened in connection with a property
dispute. According to the counsel, in such situation, in the
light of the Apex Court judgment in Hitesh Verma v. State of
Uttarakhand and others (AIR 2020 SC 5584), the
prosecution against the petitioner is unsustainable. The
counsel submitted that this is a false case foisted against the
petitioner and hence the offences under Sections 294(b), 323
and 324 r/w 34 IPC is not prima facie made out. The counsel
also submitted that to attract the offence under Section 3(1)(x)
of the SC/ST Act, the prosecution has to establish that
whoever not being a member of a Scheduled caste or
Scheduled Tribe intentionally abuse a member of a Scheduled
Caste or Scheduled Tribe by caste name in any place within
public view. According to the counsel, as per Annexure 2 final
report, the caste name which is alleged to be mentioned by the
accused is "പറയനന്റെ മമമോനന". But it is an admitted case that the
caste name of the defacto complainant is "Sambava".
5. The counsel for the 2nd respondent submitted that
this petition under Section 482 Cr.P.C may not be entertained
for the simple reason that this is a matter of evidence.
According to the counsel, there is specific averments in the
final report to the effect that the petitioner committed the
offence under Section 3(1)(x) of the SC/ST Act. The counsel
submitted that, if there is specific averments in the final
report, this Court cannot quash the proceedings invoking the
powers under Sections 482 Cr.P.C because it is a matter of
evidence. The counsel relied the judgment of the Apex Court
in Devendra Prasad Singh v. State of Bihar and another
[(2019) 4 SCC 351], in which it is stated that the High Court
has no jurisdiction to appreciate the statement of witnesses
and record a finding that there are inconsistencies in their
statement while exercising the power under Section 482 Cr.P.C
to quash criminal proceedings. The counsel also relied the
judgment of the Apex Court in Mohammed Alauddin Khan
v. State of Bihar (2019(6) SCC 107) in which it is stated
that the criminal proceedings cannot be quashed on the
ground that there is civil dispute. According to the counsel,
the name 'Sambava' is usually called to the persons in the
lower caste and it is an insult if a person called like that. This
is a matter of evidence. The counsel submitted that the
defacto complainant was seriously assaulted by the petitioner
and they sustained injuries also. From that itself, the intention
of the petitioner is clear. The sum and substance of the
submission of the 2nd respondent is that the contention raised
by the petitioner is to be decided in a trial and this Court
cannot consider the same in a petition under Section 482
Cr.P.C.
6. A perusal of Annexure 2 final report will show that
the offences alleged against the petitioner and others are
under Sections 294(b), 323 and 324 r/w 34 IPC and Section
3(1)(x) of SC/ST Act. As far as Section 294(b), 323 and 324
r/w 34 of IPC is concerned, there are specific averments in the
final report. This Court cannot quash the proceedings against
the petitioner for the offences under Sections 294(b), 323 and
324 r/w 34 IPC. This is a matter of evidence which is to be
proved before the trial court.
7. As far as Section 3(1)(x) of SC/ST Act is concerned,
the point to be decided is whether the offences is prima facie
made out in this case. Section 3(1)(x) of SC/ST Act is
extracted hereunder:
"3. Punishments for offences of atrocities -
(1) Whoever, not being a member of a Scheduled Caste or
Scheduled Tribe-
xxxxx
xxxxx
xxxxx
(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;
shall be punishable with imprisonment for a term
which shall not be less than six months but which
may extend to five years and with fine."
8. The Apex Court considered the ingredients of the
above offence in Hitesh Verma's case (supra). The relevant
portion of the judgment of the Apex Court is extracted
hereunder:
"8. Against the backdrop of these facts, it is
pertinent to refer to the Statement of Objects
and Reasons of enactment of the Act. It is
provided as under:
Despite various measures to improve the
socioeconomic conditions of the Scheduled
Castes and the Scheduled Tribes, they remain
vulnerable. They are denied number of civil
rights. They are subjected to various offences,
indignities, humiliations and harassment.
They have, in several brutal incidents, been
deprived of their life and property. Serious
crimes are committed against them for
various historical, social and economic
reasons.
2. Because of the awareness created amongst
the Scheduled Castes and the Scheduled
Tribes through spread of education, etc., they
are trying to assert their rights and this is not
being taken very kindly by the others. When
they assert their rights and resist practices of
untouchability against them or demand
statutory minimum wages or refuse to do any
bonded and forced labour, the vested interests
try to cow them down and terrorise them.
When the Scheduled Castes and the
Scheduled Tribes try to preserve their self-
respect or honour of their women, they
become irritants for the dominant and the
mighty. Occupation and cultivation of even the
Government allotted land by the Scheduled
Castes and the Scheduled Tribes is resented
and more often these people become victims
of attacks by the vested interests. Of late,
there has been an increase in the disturbing
trend of commission of certain atrocities like
making the Scheduled Caste persons eat
inedible substances like human excreta and
attacks on and mass killings of helpless
Scheduled Castes and the Scheduled Tribes
and rape of women belonging to the
Scheduled Castes and the Scheduled Tribes.
Under the circumstances, the existing laws
like the Protection of Civil Rights Act, 1955
and the normal provisions of the Indian Penal
Code have been found to be inadequate to
check these crimes. A special Legislation to
check and deter crimes against them
committed by non-Scheduled Castes and non-
Scheduled Tribes has, therefore, become
necessary.
9. The long title of the Act is to prevent the
commission of offences of atrocities against the
members of the Scheduled Castes and the Scheduled
Tribes, to provide for Special Courts and Exclusive
Special Courts for the trial of such offences and for
the relief and rehabilitation of the victims of such
offences and for matters connected therewith or
incidental thereto.
10. The Act was enacted to improve the social
economic conditions of the vulnerable Sections of
the society as they have been subjected to various
offences such as indignities, humiliations and
harassment. They have been deprived of life and
property as well. The object of the Act is thus to
punish the violators who inflict indignities,
humiliations and harassment and commit the
offence as defined Under Section 3 of the Act. The
Act is thus intended to punish the acts of the upper
caste against the vulnerable Section of the society
for the reason that they belong to a particular
community.
11. It may be stated that the charge-sheet filed is
for an offence Under Section 3(1)(x) of the Act. The
said Section stands substituted by Act No. 1 of 2016
w.e.f. 26.1.2016. The substituted corresponding
provision is Section 3(1)(r) which reads as under:
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;
12. The basic ingredients of the offence Under
Section 3(1)(r) of the Act can be classified as "1)
intentionally insults or intimidates with intent to
humiliate a member of a Scheduled Caste or a
Scheduled Tribe and 2) in any place within public
view".
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 Scheduled 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
Scheduled Caste or Scheduled Tribe. The object of
the Act is to improve the socio-economic conditions
of the Scheduled Castes and the Scheduled 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 or 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 Caste.
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 and Ors. v.
State through Standing Counsel and Ors.
MANU/SC/7954/2008 : (2008) 8 SCC 435. 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. 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.
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, 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
herself. Due to dispute, Appellant and others were
not permitting Respondent No. 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,
intimated or harassed only for the reason that she
belongs to Scheduled Caste or Scheduled Tribe."
(emphasis supplied)
9. In the light of the above judgment of the Apex
Court, the basic ingredients of the offence under Section 3(1)
(x) of the SC/ST Act is as follows:
"i) Intentionally insults or intimidates.
ii) This should be with intent to humiliate a member of
a Scheduled Caste or a Scheduled Tribe in any place
within public view."
10. It is an admitted fact that the caste of the defacto
complainant in this case is Sambava. A perusal of the final
report will show that the allegation in the final report is that
the petitioner called the defacto complainant in the following
manner:
"എടമോ പറയനന്റെ മമമോനന തമോമയമോളളി നളിനന്നെ കമോണളിച്ചു തരമോനമടമോ"
11. "Parayan" is a separate caste, of course, this caste
also is a scheduled caste. A perusal of Section 3(1)(x) of the
SC/ST Act will show that, to attract the offence, a person not
being a member of a Scheduled Caste or Scheduled Tribe
should intentionally insults or intimidates with intent to
humiliate a member of a Scheduled caste or Scheduled Tribe
in any place within public view. Therefore, the main
ingredients to attract the offence is intentionally insults or
intimidate with intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe. The admitted case is that there
was some property dispute between the families of the
petitioner and the defacto complainant. That is the motive
alleged in this case. A reading of Annexure 2 final report will
show that the intention of the petitioner is to assault the
accused and not to insult or intimidate him because he belongs
to Scheduled Caste or Scheduled Tribe. This conclusion is
strengthened because the first information statement in this
case was given by the 2nd respondent after about four days
from the date of incident. The alleged incident happened on
11.11.2014 and the first information statement which is a
signed statement was given on 15.11.2014. When the first
information statement was given, the 2 nd respondent has no
case that the petitioner intentionally insults or intimidate him
with intent to humiliate him because he belongs to Scheduled
Caste or Scheduled Tribe. If that is the case, according to me,
prima facie Section 3(1)(x) of the SC/ST Act is not attracted.
Therefore, according to me, the continuation of the
proceedings against the petitioner under Section 3(1)(x) of the
SC/ST Act is an abuse of process of law. But I make it clear
that the offence under Section 294(b), 323 and 324 r/w 34 IPC
is prima facie made out in this case. The petitioner has to face
trial before the lower court for the same in accordance to law.
The trial court will conduct the trial untramelled by any
observation in this case. Therefore, this Criminal
Miscellaneous case is allowed in part.
I) The prosecution against the petitioner under
Section 3(1)(x) of SC/ST Act based on
Annexure 2 final report is quashed.
ii) The prosecution under Sections 294(b), 323 and
324 r/w 34 IPC will sustain and the lower court
will proceed with the trial in accordance to law.
iii) What remains now is only an offence triable by the
Magistrate Court. Therefore, the learned
Magistrate will try to dispose of the case as
expeditiously as possible.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
ab
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE P1 COPY OF THE FIRST INFORMATION REPORT
ALONG WITH FIRST INFORMATION STATEMENT
IN CRIME NO 1425/14 OF PARASALA POLICE
STATION
ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO 1425/2014 OF PARASALA POLICE
STATION
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
P.A TO JUDGE
ab
