"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. 2015 http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=12672

      

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