"public view" in Section 3(i)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties.= it is clear that irrespective of the place of offence being a public place or private place, it must be within public view i.e. member/members of public present and witnessed the incident to constitute an offence under Section 3(1)(x) of SC & ST Act. = the complaint allegations would read as if the offence took place in the house of petitioner/accused, but it is not mentioned about the public view i.e. presence of public and witnessing the incident. As such, from the facts, it must be held that the offence under Section 3(1)(x) of SC & ST Act is not made out as per law and continuation of investigation will thereby amount to abuse of process of law.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Petition No.14101 of 2014

22-04-2015

P. Bhaskar Raju..... PetitionerAND

The State of Telangana Rep. by Public Prosecutor, and others. . Respondents

Counsel for Petitioner  : Sri K. Venumadhav

Counsel for Respondents 1 & 2: Addl. Public Prosecutor

^Counsel for Respondent No.3:Smt. M.Bhagyasri

<Gist:

>Head Note:

? Cases referred:
1)      2007 (2) ALT (Crl.) 106 (AP)
2)      2012 (1) ALD (Crl.) 396 (AP)
3)      2012 (2) ALD (Crl.) 288 (AP)
4)      2008 (2) ALD (Crl.) 882 (SC)
5)      MANU/DE/0085/2004 = 109(2004) DLT915    
6)      2005 (5) ALD 566 = 2000 (5) ALT 602


THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO          
CRIMINAL PETITION No.14101 of 2014  

ORDER:
     In this petition filed under Section 482 Cr.P.C., the
petitioner/accused seeks to quash the proceedings in FIR No.270 of
2014 of Thorrur PS, Warangal District.
2)      On the report given by one Jatoth Gutta of Kistuthanda
Chinnavangara, belonging to Scheduled Tribe, the police registered
FIR. The allegations are that in respect of lands acquired by his grand-
father, the names of complainant and his two brothers were not
recorded in revenue records and so, in order to request the accused
who is the VRO of their village, to enter their names in the Pahanies,
the complainant and his own brotherJatoth Mallaiah went to the
house of accused at about 7 AM on 07.10.2014 and requested the
accused to enter their in the Pahanies. On that, accused replied that he
cannot do that work and they have put up an application to MRO but
the complainant and his brother importuned him. On that, it is alleged,
the accused grew wild and abused them asLambada Bastards why    
you are pestering me in spite of my repeated telling to you.
        Hence the complaint. Investigation is reported to be pending.
3 a)    Denying the FIR allegations, learned counsel for
petitioner/accused vehemently argued that even if the entire
allegations are uncontroverted, they do not constitute any offence
inasmuch as they would reveal that the accused has explained to them
that he was not competent to enter the names of complainant and his
brothers in the Pahanies and they have to put up application to MRO
for consideration and in spite of it they annoyed with repeated
requests and in such scenario even if he shouted on them, it cannot be
said that he had any criminal intention to abuse them by caste to
demean them. Since there is no intentional insult or intimidation, the
offence under Section 3(1) (x) of Scheduled Castes and Scheduled
Tribes ((Prevention of Atrocities) Act, 1989 (for short SC & ST
Act) will not attract. In this context, he relied upon the following
decision to buttress his argument that there must be requisite intention
to insult the person by cast to attract the offence under Section 3(1)(x)
of SC & ST Act.
Budapap v. State of A.P.
b)      Secondly and most importantly, he argued that even if the
allegations are accepted to be true, still charge under Section
3(1) (x) of SC & ST Act cannot be maintainable in view of
the fact that the alleged offence took place in the early hours
of the day at the house of the accused which is neither a
public place nor within public view.    He contended that
unless the offence is taken place within the public view
accused cannot be held guilty. On this aspect he relied upon
the following decisions.
1.      D.Santosh Reddy v. S.H.O. of Shamshabad PS, Hyderabad    
2.      V.Sudhakar v. R.Ram Mohan Rao  
He thus prayed to quash the proceedings.
4 a)    Per contra, opposing the petition, learned counsel for 3rd
respondent/complainant argued that a perusal of the FIR allegations
would clearly show that accused had intentionally insulted the
complainant by his caste and if really he were annoyed by the
repeated requests of the complainant, he could have shouted at him in
a different manner and there was no need of abusing him by his caste
which reflects his intention to insult the complainant by his caste. He
argued that in deciding a quash petition, the Court has to take the FIR
allegations to be true on their face value and then only decide whether
such allegations constitute any offence or not but at this stage the
Court shall not make a rowing enquiry as to the veracity or otherwise
of the FIR allegations. On this aspect he relied upon the decision
reported in Swaran Singh and others v. State through Standing
Counsel  .
b)      Secondly, he argued that though the offence was occurred in a
private place, still it was within the public view and therefore, the
offence is maintainable against the accused. He thus prayed to dismiss
the petition.  
5)      In the light of above rival arguments, the point for
determination is:
Whether there are merits in this petition to allow?
6) POINT:  The offence alleged against the petitioner/accused is one
under Section 3(1)(x) of SC & ST Act.  The said Section reads thus:
(1) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe
(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.
To attract the offence, the requisite ingredients are:
(i)     Offender is not a member of Scheduled Caste or a Scheduled
Tribe;
(ii)    He intentionally insults or intimidates with intent to humiliate a
member of a Scheduled Caste or a Scheduled Tribe;
(iii)   In any place within public view

In the light of above ingredients, it has now to be seen whether a
prima facie offence could be made out against the petitioner/accused
or not.
a)      The first and foremost argument on behalf of the petitioner is
that even if the FIR allegations are uncontroverted, no offence could
be made in this case because there was no intentional insulting of the
complainant in the name of his caste by the accused inasmuch as in
spite of the accused informing that he was not the authority to note the
Pahanies in the names of complainant and his brothers and they have
to file application before the MRO, still the complainant repeatedly
demanded accused to enter their names in the Pahanies and in this
back drop, even if the accused shouted on them, that might be due to
annoyance got by him out of persistent pestering by the complainant.
On the other hand, the contention of 3rd respondent/complainant is that
even if the accused was annoyed by the request of the complainant,
there was no need of abusing him by his caste which demonstrates his
intention to insult. His contention is that the FIR allegations should be
taken to be true on their face value in this regard.
b)      It is true in a quash petition, the allegations in FIR have to be
notionally accepted to be true for deciding the petition. This was held
by Apex Court in Swaran Singhs case (4 supra) wherein it was
observed thus:
At this stage the Court is not to see whether the allegations in the
FIR are correct or not, but only to see whether treating the FIR
allegations as correct as offence is made out or not.

7)      So, following the above principle, if the FIR allegations are
perused, the accused abused the complainant as:
 ????? ??????????????? ?????? ???????????? ???? ??? ???????? ?????.    
If the said allegations are uncontroverted, they demonstrate the
intention of the accused to insult, because as rightly pointed out by the
counsel for respondent, accused had no business to abuse the
complainant by his caste even if he was annoyed by repeated
importunes of the complainant. Hence the intention has to be inferred
from the circumstances.
a)      In this regard, the decision reported in the case of Budapap
(1 supra) can be distinguished. In that case, the complainant was
attacked by about 7 persons and they went to him and abused him and
beat him with brooms, chappals, hands and legs and further abused
him in his caste name. It was observed that the complainant did not
make a specific allegation as to who among the accused used those
abusive words. In the light of those facts it was held that the
complainant could not prove the intention to humiliate him and
quashed the proceedings. That is not case here. So, the first argument
raised by the petitioner does not carry merit.
b)      Then, the second argument of the petitioner/accused is that
since the offence allegedly took place in the house of petitioner which
is a private place, and not within the public view and no members of
the public have allegedly witnessed the incident, the offence under
Section 3(1)(x) of SC & ST Act was not made out by the prosecution.
On the other hand, the contention of 3rd respondent/complainant is that
though the offence took place in the house of accused, still that place
was within the public view and hence the offence was very much
committed.
8)      In this context, the questions would arise are what is the
distinction between a public place and a place within public view
and further, if the offence had occurred at either place, whether it is
sufficient that that place is amenable to public or that public must
physically viewed the incident to complete the offence. These
questions were answered in the following decisions.
1.      Swaran Singhs case (4 supra)
2.      Daya Bhatnagar v. State
3.      Bharat Petroleum Corporation Ltd., Mumbai v. Union of
India

a)      In Swaran Singhs case (4 supra) the facts are that the
complainant was working as car driver under Sh.Umesh Gupta. He
belongs to Khatik caste. He used to stand near the car parked at the
gate. His grievance was that every now and then Smt. Simran Kaur
and her daughter while passing through him used to abuse him by his
caste. On 10.12.2014, in the morning while he was cleaning the car,
both mother and daughter threw dirty water on him and abused him on
his caste which was witnessed by guard of the apartment and another
driver. While drawing distinction between public place and a place
within public view the Apex Court held as follows:
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.

b)      In Daya Bhatnagars case (5 supra) one of the points referred
to third Judge is:
"(1) What is the correct and real meaning of expression "public view"
occurring in Section 3(i)(x) of SC/ST (POA) Act, 1989 and whether it
would include the view of the accused in a counter FIR?
It was held as follows:
Para 15. x x x x
(c) the incident must occur in any place within the public view. There
cannot be any dispute that the offence can be committed at any place
whether it is a private place or a "public view" as long as it is within
the "public view". The requirement of "public view" can be satisfied
even in a private place, where the public is present.
     Para-19 x x x x x
Keeping this in view, looking to the aims and objects of the Act, the
expression "public view" in Section 3(i)(x) of the Act has to be
interpreted to mean that the public persons present, (howsoever small
number it may be), should be independent and impartial and not
interested in any of the parties.

c)      In Bharat Petroleum Corporation Ltd.s (6 supra) a learned
single Judge of this High court expressed same view as follows:
Para -12 x x x x
On the other hand, the learned Government Pleader submits that the
interpretation sought to be given by the learned Senior Counsel is
misconceived. He submits that the offence should be committed in a
place which is amenable to public view and therefore, if the chamber
of the Officer is amenable for public view, it is sufficient to constitute
an offence and it is not necessary that the public should physically
view the situation or event. (Emphasis supplied).
13. Having given serious consideration to the issue, I am of the view
that the contention of the learned Government Pleader cannot be
countenanced for the simple reason the very section itself is specific
that the insult or intimidation should have taken place in public view.
It need not be a public place, it could also be a private place. The
intention of the Parliament was very clear that this insult or
intimidation should have been caused in a place within the public
view. If it is committed in any place which is not within the public
view, it would not be treated as an offence. Otherwise, the Parliament
could have omitted the words within the public view, and it would be
redundant if the contention of the learned Government Pleader is
accepted. Admittedly, in the instant case, the alleged offence has taken
place in the chambers of the Officers where there was no public, and
which was not within the public view. It is not even the contention of
the 4th respondent that the events were viewed by the public on the
days mentioned by him in the complaint. In such a situation, it would
be very difficult for this Court to conclude that even though public did
not view the event, yet, it has to be treated as a offence under Section
3(1)(x) of the Act. The decision of Madhya Pradesh High Court fully
covers the case on hand. (Emphasis supplied)

9)      So, from the above judgments, it is clear that irrespective of the
place of offence being a public place or private place, it must be
within public view i.e. member/members of public present and
witnessed the incident to constitute an offence under Section 3(1)(x)
of SC & ST Act.
9)      Coming to the instant case, the complaint allegations would
read as if the offence took place in the house of petitioner/accused, but
it is not mentioned about the public view i.e. presence of public and
witnessing the incident. As such, from the facts, it must be held that
the offence under Section 3(1)(x) of SC & ST Act is not made out as
per law and continuation of investigation will thereby amount to abuse
of process of law.
10)     In similar circumstances, in the cases of D.Santosh Reddy and
V.Sudhakar (2 and 3 supra) proceedings were held not maintainable
against the concerned accused.
11)     In the result, this Criminal Petition is allowed and proceedings
in FIR No.270 of 2014 of Thorrur PS, Warangal District are hereby
quashed.
     As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
________________________  
U.DURGA PRASAD RAO,J      
Dt. 22-04-2015

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515