Senthil @ Senthil Kumar vs State Of Tamil Nadu Rep.By
2021 Latest Caselaw 3000 Mad

                                                              1

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 09.02.2021

                                                         CORAM

                           THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH

                                                 Crl.O.P.No.936 of 2017
                                                          and
                                             Crl.M.P Nos.680 & 681 of 2017

                     Senthil @ Senthil Kumar                              ..Petitioner


                                                         Vs

                     1.State of Tamil Nadu rep.by
                       The Inspector of Police
                       Udumalpet Police Station
                       Udumalpet.
                     2.M.Murugan                                          ...Respondents

                     PRAYER : Criminal Original Petition is filed under Section 482 of the
                     Code of Criminal Procedure, to call for the records relating to the
                     Charges in PRC No.26 of 2016 on the file of the Judicial Magistrate
                     No.I, Udumalpet in Crime No.438 of 2016 on the file of the 1st
                     Respondent police and quash the same.
                                      For Petitioner   : Mr.A.R.Karthik Lakshmanan for
                                                         M/s.A.L.Ganthimathi

                                      For Respondents : Mr.M.Mohamed Riyaz for R1
                                                       Additional Public Prosecutor
                                                       No Appearance for R2

https://www.mhc.tn.gov.in/judis/
                                                             2

                                                     ORDER

This Criminal Original Petition has been filed to quash the

proceedings pending before the Court below in P.R.C No.26 of 2016.

2. The case of the prosecution is that there was a previous enmity

between the petitioner and the 2nd respondent. On 10.11.2012, at about

2.54 p.m, the petitioner is said to have made a phone call to the 2nd

respondent and abused him in a filthy language and also criminally

intimidated him and used his caste name and forced him to withdraw the

complaint that was given by him. Based on the complaint given by the

2nd respondent, an FIR came to be registered in Crime No.438 of 2016

for an offence under Sections 294(b), 506(ii), 170 of IPC and Section

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

3. The investigation went on and a final report came to be filed

before the Court below and it has been taken cognizance for an offence

under Sections 294(b), 506(ii) and Section 3(1)(x) of SC/ST Act.

4. The learned counsel for the petitioner submitted that even as per

the complaint given by the 2nd respondent, the petitioner is said to have

abused over phone at 2.54 p.m. The learned counsel submitted that this https://www.mhc.tn.gov.in/judis/

allegation by itself will not attract the offences under Sections 294(b) and

Section 3(1)(x) of SC/ST Act, since the incident had not taken place in a

public place. The learned counsel for the petitioner further submitted that

the falsity of the complaint given by the 2nd respondent is exposed by

the statement of L.W.15 who has categorically said that on verifying two

mobile numbers, it was found that there was no such phone call that was

received by the 2nd respondent. The learned counsel further submitted

that even if the allegations are taken as it is, no offence is made out under

Section 506(ii) of IPC. The learned counsel for the petitioner in order to

substantiate his submission, relied upon the judgment of the Hon'ble

Supreme Court in Hitesh Verma vs. The State of Uttarakhand &

Another reported in CDJ 2020 SC 816.

5.The learned Additional Public Prosecutor appearing on behalf of

the respondent police submitted that sufficient materials have been

collected by the respondent police and the petitioner has to necessarily

establish his defence only in the course of trial and there are no grounds

to interfere with the proceedings at this stage.

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6. The 2nd respondent has been served with notice and his name

has also been printed in the cause list and there is no representation for

the 2nd respondent.

7. The specific case of the 2nd respondent is that the petitioner had

abused him over phone on 10.11.2012 at 2.54 p.m. Even if this

allegation made by the 2nd respondent is taken as it is, it does not make

out an offence either under Section 294(b) IPC nor under Section 3(1)(x)

of SC/ST Act. Both the provisions will get attracted only when the

words are uttered in any place within the public view. Admittedly in this

case, the allegation is that the words were uttered during a phone call

that is said to have been made by the petitioner to the 2nd respondent.

8. The judgement cited by the learned counsel for the petitioner

will squarely apply to the facts of the present case and the relevant

portions in the judgement are extracted hereunder:

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 subsituted by Act No.1 of 2016 w.e.f 26.1.2016. The

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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 calssified 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 ribes as they are denied number of

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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 the 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 judgement reported as

Swaran Singh & Ors. vs. State through Standing Counsel &

Ors., (2008) 8 SCC 435. The Court had drawn distinction

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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 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

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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

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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 Swaram 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.

9. As rightly pointed out by the learned counsel for the

petitioner, except for the ipse dixit for the 2nd respondent, there is

absolutely no other material to show that there was in fact a phone

call that was made by the petitioner to the 2nd respondent. The

statement of L.W.15 makes it very clear that the call details that

were taken from two mobile numbers does not show that any such

call was made on 10.11.2012 at 2.54 p.m as claimed by the 2nd

respondent. Eventhough a finding is not necessary on this aspect,

this Court wanted to verify as to whether there is any truth in the

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allegation that has been made by the 2nd respondent and finds that

the allegation is totally unsubstantiated.

10. In order to attract the offence under Section 506(ii) IPC, it is

not enough if there is an empty threat unless there are some materials to

show that the threat is a real one. Useful reference can be made to the

judgement of the Hon'ble Supreme Court in Vikram Johar versus State

of Uttar Pradesh and Another, reported in (2019) 3 MLJ (Crl) page

11. In view of the above, this Court has absolutely no hesitation to

interfere with the criminal proceedings pending in P.R.C No.26 of 2016

and the continuation of the proceedings will clearly amount to abuse of

process of court. Accordingly, the proceedings in P.R.C No.26 of 2016

on the file of the Judicial Magistrate No.I, Udumalpet, is hereby quashed

and the Criminal Original Petition is allowed. Consequently, connected

Miscellaneous Petitions are closed.

09.02.2021

uma Index: Yes/No Internet: Yes/No https://www.mhc.tn.gov.in/judis/

To

1. The Inspector of Police Udumalpet Police Station Udumalpet.

2. The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis/

N.ANAND VENKATESH.,J

uma

Crl.O.P.No.936 of 2017 & Crl.M.P No.680 & 681 of 2017

09.02.2021

https://www.mhc.tn.gov.in/judis/