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Petitioner v/s Respondent

    Criminal Petition No. 2996 of 2021
    Decided On, 23 September 2022
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE MR. JUSTICE K. SREENIVASA REDDY
    For the Petitioner: ------ For the Respondent: --------


Judgment Text
This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, is filed to quash the proceedings in Special S.C.No.61 of 2020 on the file of the XI Additional District Judge-cum-Special Judge for trial of the offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Visakhapatnam. Petitioner herein is sole accused in the Special Sessions Case.

2. A charge sheet has been filed against the petitioner for the offences punishable under Sections 420, 323, 506-II IPC and 3 (1) (r) (s) and 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short, ‘the Act, 2015’). The allegations, in brief, in the charge sheet may be stated as follows:

2nd respondent/defacto complainant and the petitioner/ accused worked as Teachers in Z.P.H. School, Kothapalem, Gopalapatnam. Husband of 2nd respondent died in the year 2009 and taking advantage of the same, the petitioner developed acquaintance with her and promised her that he would look after her and her daughter well and assisted them in their needs. He also promised that he would marry her by giving divorce to his wife and induced her that he would provide job to her daughter. When 2nd respondent believed him completely, he exploited her sexually and developed sexual relationship with her. He used to visit house of 2nd respondent in night times and have sexual intercourse with her. He frequently took her and her daughter outside in his car.

It is further alleged that 2nd respondent got huge amount as her share from the property of her father and on that, the petitioner, with an evil intention to cheat her, promised her that he would provide job to her daughter in Railways and took an amount of Rs.5.00 lakhs through one Chilla Subramanyam. Later, he also promised that he would purchase one house to her and took an amount of Rs.5.00 lakhs and also took Rs.9.00 lakhs from her to attend personal needs, and in all, he took an amount of Rs.19.00 lakhs from her and cheated her and not providing job to her dauther or not purchased the house. It is further alleged that when 2nd respondent pressurized him for job of her daughter, he showed two letter heads in the name of Sri K.Haribabu, M.P., Visakhapatnam and induced her that he was trying to get the job. When she asked petitioner to return the money as he failed to provide the job or purchase the house, he abused her in the name of her caste as SC mala and beat he with hands and threatened her with dire consequences not to inform the matter to anybody.

Basing on a report lodged by 2nd respondent, police registered a case in crime No.308 of 2019 of Airport police station, Visakhapatnam city, and after completion of investigation, laid the charge sheet.

3. Learned counsel for the petitioner contended that even accepting the entire accusations to be true, still the offence punishable under Sections 3 (1) (r) (s) and 3 (2) (va) of the Act, 2015 would not attract for the reason that the alleged incident is said to have taken place in a house, which would not come within the purview of ‘public view’, as is evident from the charge sheet. She contends that in view of the same, continuation of the impugned proceedings as against the petitioner is nothing but abuse of process of Court.

4. On the contrary, learned counsel for 2nd respondent submitted that even accepting the accusations to be true, if any offence occurs within four walls in the presence of outsiders, the same would amount to an offence punishable under the provisions of the Act, 2015, and the contentions that are raised by the learned counsel for the petitioner are disputed questions of fact and the same have to be decided in the course of trial.

5. This Court perused the record.

6. Section 3 (1) (r) (s) of the Act, 2015 reads thus:

“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,

(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.

Section 3 (2) (v) of the Act, 2015 reads thus:

Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal code for such offences and shall also be liable to fine.”

7. The basic ingredients of the offence under Section (3) (1) (r) of the Act, 2015 can be classified as (1) intentionally insulting or intimidating with intent to humiliate a member of a Scheduled Caste or Schedule Tribe, and (2) in any place within public view.

8. In an offence under Section 3 (1) (r) of the Act, 2015, intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe, is an essential ingredient. All insults or intimidations to a person will not be an offence punishable under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. An offence under the Act would be made out when a member of vulnerable section of the society is subjected to indignities, humiliations or harassment. The other ingredients of the said provision would go to show that when an insult or intimidation has been made in any place within public view. A ‘place within public view’ came up for consideration in Swaran Singh & others v. State (2008) 8 SCC 435), wherein it is held thus: (paragraph 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.”

9. Learned counsel for the petitioner relied upon an Order dated 10.06.2022 in Criminal Petition No.3597 of 2022 in Sri Rithesh Pais v. State of Karnataka & others, wherein it is held thus:

“If the complaint, summary of charge sheet and the statement of witnesses, CW2 in particular, are read in tandem, it would unmistakably reveal that hurling of abuses has happened at the basement where CWs-1 to 6 were working and in the basement, it is not indicated, any other person was even present. Two factors would emerge from a reading of the aforesaid statements-one being the basement of the building was not a place of public view and two, only persons who claim to be present were the complainant/CW1 and other employees of Sri Jayakumar R.Nair or friends of CW-1. Therefore, hurling of abuses is clearly not in a place of public view or a public place for the aforesaid provisions of the Act to be get attracted in the case at hand.

.…

12. In the light of the afore-quoted facts, when the basic ingredients of the offence are missing, then permitting such proceedings to continue and to compel the petitioner to face the rigmarole of criminal trial would be totally unjustified, leading to abuse of the process of law. In the teeth of the aforesaid facts and analysis, permitting further proceedings to continue would degenerate into harassment and result in miscarriage of justice.”

10. The learned counsel for petitioner also relied on a decision of the Hon’ble Supreme Court of India in Hitesh Verma v. State of Uttarakhand & another, (Judgment dated 05.11.2020 in Criminal Appeal No.707 of 2020)wherein it is held thus: (paragraphs 19 and 24)

“This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra & another (2018) 6 SCC 454 issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported in Union of India v. State of Maharashtra & Ors. (2020) 4 SCC 761 reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked.

The Court held as under:

“There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/ unsubstantiated, it may be due to the faulty investigation or for other various reasons incuding human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceedings under Section 482 CrPC.”

24. In view of the above facts, we find that the charges gainst 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.”

11. On the other hand, learned counsel for 2nd respondent relied on a decision of the Bombay High Court in Balu v. State of Maharashtra (2006 6 AIR (Bom) (R) 251), wherein it is held thus: (paragraphs 11, 13, 14 and 19).

“11. These principles would have to be borne in mind while ascertaining a true meaning and import of the expression "within public view". It is not in dispute that the expression "within public view" has not been defined by the ST and ST Act or any other enactment. Normally dictionary meaning and the meaning found in Law Lexicon is considered for ascertaining true import of the provision in question. At the outset it must be pointed out that the expression "within public view" appears to have been used in this statute for the first time, for the formulation of different ingredients of the offence punishable under section 3(1)(x) of SC and ST Act. Therefore, this expression, is not found in the dictionaries or in Law Lexicon. Considering the words used, it can be seen that Judicial Dictionary by K. J. Aiyar (Twelth Edition of the year 1990) defines word public "pertaining to the people, State or community". Referring to decision of the Supreme Court in the matter of Shri. Venkataraman Devaru Vs. State of Mysore reported in 1958 SCR 895, the word public is shown to include a section of the public in its ordinary acceptation. Another decision of the Supreme Court in the matter of Azam Khan Vs. State of Andhra Pradesh reported in 1972 Mah.L.J. (Cri.) 674, refers to the meaning given in Corpus Juris Secundum that word public ordinarily refers to a joint body of citizens and means that the event is shared, participated or enjoyed by the people at large.

13. Turning to the provision in question and the object and reasons for enacting this provision, it can be seen that the statute is enacted for the purpose of preventing commission of offence relating to the atrocities on the members of a Scheduled Caste or Scheduled Tribes: to establish Special courts for expeditious disposal of cases relating to these offences; for the relief and rehabilitation of the victims of such offences and for the matters connected there with or incidental thereto. The Statute came to be enacted as the provisions of the Indian Penal Code as well as Protection of Civil Rights Act, could not effectively curb the menace of the caste disparity. As the existing enactments effectively curb the commission of offences relating to untouchability, Section 3 of SC and ST Act came to be enacted, to deal with 15 different species of the atrocities. To achieve the object of the Act to provide protection from atrocities, deterrent theory of punishment is resorted to. Clause (ii) and (x) of sub-section (1) of Section 3 refer to the insults which are made punishable. Sub-clause (ii) refers to the injury, insult or annoyance to any member of the Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter carcasses or any other obnoxious substance in his premises or in the neighborhood. Clause (x) refers to intentional insults or intimidation with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within public view. Difference in the two provisions is apparent. In the earlier instance, presence of the victim is not necessary. The physical act of dumping obnoxious material in or near the premises of the victim is sufficient to constitute the offence. However, in clause (x) use of expression "within public view" postulates the victim being insulted with reference to his caste in presence of a member of the public. It can therefore be seen that the presence of the victim, the offender and a member of the public are the essential ingredients of the offence referred to in clause (x) of sub-section (1) of Section 3 of SC and ST Act. It appears that the third ingredient requiring that the offence should be committed within public view, is included to eliminate possibility of frivolous prosecution. While affording protection to the members of SC or ST precaution is taken to discourage misuse of the provision.

14. True import of the expression "within public view" will have to be ascertained having regard to the legislative intent and the mischief sought to be cured. However, it would be useful to refer to the decision of this Court as well as other High Courts before ascertaining the true import and meaning of the expression "within public view" occurring in section 3(1)(x) of the SC and ST Act. Delhi High Court had an occasion to interpret the meaning of expression "within public view" appearing in clause (x). Incidentally it may be pointed out that there was a disagreement in respect of the interpretation and the scope of the expression "within public view" between the Judges of the Division Bench and the matter was referred to 3rd Judge. The decision reported in (2004) Delhi Law Crimes 915 in the matter of Daya Bhatnagar & Ors. Vs. State, refers to the Objects and Reasons for enactment of the statute, dictionary meaning of the word "public" given in corpus secundum and Blacks law dictionary and the principles of interpretation of statute. In para 19 of the report it is observed that "The SC and ST Act was enacted with laudable object to protect vulnerable section of the society. Sub-clauses (i) to (xv) of Section 3 (1) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The Legislature required intention as an essential ingredient for the offence of insult, intimidation and humiliation of a member of the Scheduled Castes or Scheduled Tribe in any place within public view. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (however small number it may be), should be independent and impartial and not interested in any of the parties. In other words, the persons having any kind of close relationship or association with the complainant, would necessarily get excluded."

19. Considering the judicial pronouncements on the subject, the expression within public view must be construed to mean that the insult or humiliation must take place in the presence of or in the proximity of at least one independent person. The test of audibility and visibility can be taken to have been satisfied if an independent person is actually present or is at a place where the utterances are clearly audible and reaches the scene of occurrence while the incident is still in progress.”

12. In the case on hand, 2nd respondent is a resident of Satyasai Apartment, Madhavadara, Muralinagar, staying along with her daughter. She is working as a Teacher at Rambilli Z.P. High School. Since husband of 2nd respondent died, the petitioner/accused acted in such a way that he is helping her, and 2nd respondent believed him, due to which some acquaintance was developed between them. Though during the relevant period of time, the petitioner/accused was married, he promised that he would look after her and her daughter and arrange good job to her daughter, and exploited her sexually. Thereafter, the petitioner/accused shifted 2nd respondent and her daughter to the residence at Madhavadara as it was very near to his house. Later, both of them were transferred from the said school and joined in separate schools. 2nd respondent got huge money towards her share from her father side, and the accused noticed the same and with an evil intention, he promised her that he would provide a job to her daughter in railways and took an amount of Rs.5.00 lakhs from her and also took some more amounts, since then the petitioner/accused started taking money from her several times. 2nd respondent questioned him as to why he did not provide job to her daughter after taking money from her. On that, he abused her in the name of her caste as ‘Mala Lanja’ and beat her with hands. On 07.07.2019 at about 10.00 PM, the accused went to her house and picked up quarrel and threatened her with dire consequences by stating that he will see end of her and her daughter. Thereupon, 2nd respondent resorted in filing the present complaint.

13. The question that arises for consideration in this case is whether prima facie an offence has been committed under Section 3 (1) (r) (s) and 3 (2) (va) of the Act, 2015.

14. Contention of the learned counsel for the petitioner is that even accepting the accusations as true, still an offence punishable under Section 3 (1) (r) (s) and 3 (2) (va) of the Act, 2015 would not attract, for the reason that the alleged incident is said to have taken place at the house of 2nd respondent and she also relied on a precedents as mentioned above. Learned counsel for 2nd respondent submitted that the alleged incident is said to have taken place at the house of 2nd respondent and there were witnesses L.Ws.7 to 9-Chilla Suryanarayana; Sirigina Sujatha and Gantasala Nageswara Rao, who are independent in witnesses present at the scene of offence.

15. This Court perused the record and the statements of witnesses. L.Ws.7 to 9-Chilla Suryanarayana; Sirigina Sujatha and Gantasala Nageswara Rao are independent witnesses. Statement of L.W.8-Sirigina Sujatha goes to show that when she went to house of 2nd respondent to sell clothes, she saw a person quarrelling with 2nd respondent, and on seeing her, he went away from that place, and and on enquiry, 2nd respondent stated that petitioner/accused abused her by using her caste and thereafter the petitioner/accused beat 2nd respondent. This Court also perused the statement of L.W.9-Gantasala Nageswara Rao, who is also an independent witness. He too categorically stated that the petitioner/ accused had threatened 2nd respondent with dire consequences and abused her in filthy language. As per the charge sheet, the accusations of abusing 2nd respondent were made within house of 2nd respondent. It is the case of 2nd respondent that there were other members of public (not merely relatives or friends) at the time of the incident in the house. Therefore, in view of the judgment of the Hon’ble Apex Court in Swaran Singh & others case (1 supra), prima facie, it can be said that it is a place in public view as there were witnesses who had witnessed the said incident. Even according to the accusations contained in the charge sheet, it is a case where the petitioner/accused had taken moneys from 2nd respondent on the pretext of providing job to daughter of 2nd respondent and it was also alleged that the petitioner/ accused was in the habit of collecting moneys from 2nd respondent. Going by the statements of witnesses, statement of L.W.6-A.Eswara Rao also would go to show that 2nd respondent was informing him about the acts of the petitioner/accused and was crying in front of the said witness. Whether the petitioner/accused had done the same with an intention on the ground that 2nd respondent is a member of Scheduled Caste/Scheduled Tribe, is a disputed question of fact and the same has to be decided in the cours

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e of trial. It is too premature stage for this Court to conduct a roving enquiry with regard to the disputed questions of fact since there are independent witnesses, who were present at the time of the incident and they stated to that extent. 16. Lord Solomon in DPP v. Humphrys (1977) AC stressed the importance of the inherent power where he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further observed that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved. 17. In R.P. Kapur v. State of Punjab, the Hon’ble Supreme Court summarized some categories of cases where inherent power can be exercised to quash the proceedings. (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings; (ii) Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. It is also well settled that the powers of this Court under Section 482 CrPC are very wide and the very plentitude of the power requires great caution in its exercise. Exercise of the said power is governed by sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. This Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issue involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. 18. In view of the aforesaid facts and circumstances, this Court feels that since the offence has been allegedly witnessed by the independent witnesses, in any place within public view, it would be an offence since it would be in the public view. The Criminal Petition is devoid of merit and is liable to be dismissed. 19. The Criminal Petition is, accordingly, dismissed. Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
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