in following sentence :-
“therefore, the incidents of insult or intimidation
have to occur in place accessible to and in the
presence of public. The presence of both these
ingredients would be absolutely necessary to
constitute the offence.”
Subsequent to the aforesaid decision, the Hon’ble
Apex Court gave meaning of the aforesaid ingredient in
the case reported as 2009 (2) Mh.L.J. 22 (Swaran Singh
v. State). The relevant portion of the decision is in
paragraph 28 and 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 Stage, and not by private
persons or private bodies.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.2803 of 2011
Bajirao s/o. Narayan Deshmukh.
V
The State of Maharashtra.
CORAM: T.V. NALAWADE &
Smt. I.K. JAIN, JJ.
Order pronounced on : 6th April 2015.
Citation:2016 ALLMR(CRI)4557
1) Both the proceedings are filed under section
482 of the Code of Criminal Procedure for the relief of
quashing and setting aside First Information Reports
given against the applicants on the basis of which crime is
registered mainly for offence punishable under section
3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred
to as “the Act”) (first proceeding) and section 3(1)(r) and
(s) of the the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Ordinance, 2014
issued in respect of the provisions of the Act. The same
learned Counsel argued in both the proceedings of the
applicants and as the same point was argued for getting
the relief, both the matters are being decided together.
Learned Additional Public Prosecutor is heard.
2) In the first proceeding the crime is registered
on the basis of report given by one Laxman Bansode. The
incident in question took place on 25-6-2011. He has made
allegations that at about 4.30 p.m, when he was present
in front of his house, applicant Ganesh Deshmukh came in
a car near Samaj Mandir. Ganesh called the complainant
towards Samaj Mandir. According to him, applicant
Bajirao was present there and when he reached there,
Bajirao gave blows of stick on chest and head. He has
made allegations that Ganesh assaulted by using stick.
Three more persons participated in the incident to assault
the complainant and they had come in the same car. Some
persons of the village like Kalidas Bansode, Balaji Bansode
rushed to rescue him but these two applicants gave stick
blows to those persons also. While giving beating the two
applicants were giving abuses to the complainant by
taking name of his caste by saying as “egkjk y; ektykl”
(Mahara you have become arrogant). He then approached
the village Sarpanch and both of them went to police
station and gave report. Ganesh is from the same village
and Balaji is from Ramnagar, Osmanabad. The crime came
be registered for offences under sections 323, 149 etc. of
Indian Penal Code and section 3(1)(x) of the Act. Affidavitin-reply
filed by the State shows that injury was sustained
by complainant in the incident and there are statements
of eye witnesses to the effect that the incident took place
at the place described by the complainant.
3) The second proceeding is filed in respect of
report given by Smt. Kalawati Kamble in respect of
incident dated 25-11-2014. It is her case that they own 8
acres of agricultural land in Nagur and they are
personally cultivating this land. It is her case that adjacent
to their land in Gat No.78/2 there is no land of Pramod
Jawale but Pramod Jawale is trying to forcibly take
possession of the portion of the complainant admeasuring
2.1/2 acres. It is her case that due to the dispute they
have already approached Court but even when the
proceeding is pending, Pramod Jawale has continued to
harass them. It is her case that on 25-11-2014 at about
3.00 p.m. when she and her son Kishore were doing work
of spraying insecticides on Toor crop, Dinkar Jawale and
his son Vinod Jawale came there along with Niladhar
Jawale and Tanaji Patil (the applicants). It is her case that
they had come with tractor and they wanted to do sowing
operation in the land. It is her case that when she said to
them that it was her land, Dinkar gave blows of stick to
her and three others assaulted her son Kishore by using
stick and axe. It is her case that both of them sustained
injuries in the incident and Kishore lost few teeth. It is her
case that during incident when they raised hue and cry
her other son Balaji, daughter-in-law Sangmitra, sister
Vachhala, relative Pandurang and others like Pravin
Chandanshive and two more persons rushed to the spot.
It is her case that while leaving the field these applicants
gave threat of life. It is her case that even Balaji was
assaulted when he tried to intervene in the incident. On
the basis of the report, initially crime came to be
registered for offences punishable under sections 324,
323, 504, 506, 34 of the Indian Penal Code. It appears that
subsequently supplementary statements were recorded
and in the statements the witnesses stated that abuses
were given by the applicants by taking name of the caste
Mahar which is a scheduled caste. On 3-12-2014 the
investigating officer informed the Court that as the
complainant side was belonging to Scheduled Caste,
Mahar and the accused side was belonging to Maratha
community which is not either Scheduled Caste or
Scheduled Tribe, they want to add section 3(1)( (r) and (s)
of the Amendment Ordinance, 2014. In this matter there
is no affidavit of the investigating agency, the other
respondent, but some record in respect of agricultural
land is produced. The record is produced to show that
applicant Pramod has purchased some portion of land Gat
No.78/1 under sale deed dated 27-7-2011. To the south of
this portion there is land Gat No.78/2 which is shown to
be already sold to Pramod Patil. 7/12 extracts are
produced to show that in the land Gat No. 78/1 vendor
Draupadi Nivrutti Kamble was the owner of 69R portion
and this portion is sold to the applicant Pramod. This lady
was having 40 R portion from Gat No.78/2 also and the
sale deed in respect of this portion was executed on the
same date i.e. 27-7-29011. To the south of this portion
there is land of Kalawati Kamble, the complainant from
the present case. The 7/12 extract in respect of Gat No.
78/2 also shows that Kalawati Kamble is owner of 1.50
hectare portion from this land.
4) Thus, in the present case there is record which
shows that in the same Gat number both, the complainant
and the accused are having some portion and there is
allegation of aforesaid nature against the applicants.
5) The learned Counsel for the applicants submitted
mainly on the point that in both the cases it cannot be
said that the incident took place "within public view" as
mentioned in the section for which the crime is
registered. The crimes were registered in the past for
offence under section 3(1)(x) of the Act and now the
crime is registered for offences under section 3(1)(r) and
(s) of the Amendment Ordinance. The provisions of the
Act and provisions introduced by Amendment Ordinance,
2014 are as follows:-
Principal Act :-
“3. Punishment for offences of atrocities.-- (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.
Amendment Ordinance, 2014 :-
"4. Amendment of section 3. In section 3 of the
principal Act,-- (i) for sub-section (1), the following
sub-section shall be substituted, namely:-
(1) 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."
6) In respect of the second proceeding it can be
said that there is one more provision, of section 3(1)(g)
which is with regard to dispossession of Scheduled Caste
or Scheduled Tribe persons by the persons who are not
from Scheduled Castes or Scheduled Tribes category.
The ingredients of Section 3(1)(x) of the Act are as
follows:-
(i) intentionally insult or intimidate;
(ii) with intention to humiliate a member of
Scheduled Caste or Scheduled Tribe;
(iii) In any place within public view.
7) No definition of “insult”, “intimidation” etc. or
even of the word "within public view" is given in the Act.
In this regard one needs to read first the provision of
section 2(1)(f) of the Act which is with regard to the
definitions which needs to be used for the purpose of the
Act and it runs as under:-
“2. Definitions.-- (1) In this Act, unless the context
otherwise requires,--
(f) words and expressions used but not defined in
this Act and defined in the Code or the Indian Penal
Code (45 of 1860) shall have the meaning assigned
to them respectively in the Code, or as the case may
be,in the Indian Penal Code.”
In view of this provision, the meaning given to the
words either in the Code or the Indian Penal Code needs
to be used for the Act if there is no definition or meaning
of the words given in the Act itself.
8) If there are no definitions and if the meaning
of the words used in the Act is not available in the Code
or in the Indian Penal Code, the Court is expected to
interpret and give meaning to the words. Ordinarily
intention of the Legislature has to be gathered from the
statutory provisions only. If the words have created
ambiguity or term or word used is too general, the Court
can look to the preamble and title of the Act to ascertain
the object behind the legislation. It cannot be disputed
that both the title and the preamble of the Act show that
the object is to prevent atrocities against the persons of
scheduled castes and scheduled tribes. The Court is also
expected to keep in mind that the penal provisions need
to be interpreted strictly. However, the Court cannot rewrite
the section and it is wrong thing for the Court to
read the words which are not there in the provision. In
ordinary course when there is no definition of a word, the
word needs to be given same meaning which it receives in
ordinary parlance or in the sense in which people
conversant with the subject may understand it. Thus,
ordinarily literary meaning of the word needs to be used.
When the language is explicit, it is for the Legislature to
consider and not for the Court. Argument of
inconvenience or hardship in such cases cannot be
entertained by the Courts.
9) The aforesaid propositions for the interpretation
can be seen in the cases reported as AIR 1959 SC 459
(Sri Ram Ram Narain v. State of Bombay) and AIR 1982
SC 1413 (Prithi Pal Singh v. Union of India). The
propositions need to be kept in mind while ascertaining
the meaning given to the aforesaid term as the object
behind the relevant provisions from the Indian Penal Code
is different.
10) There are two provisions in Indian Penal Code
in which the words “insult” and “intimidation” can be
found and they are sections 503 and 504. These sections
run as under:-
"503. Criminal intimidation.-- Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one in
whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do any
act which he is not legally bound to do, or to omit to
do any act which that peron is legally entitled to do,
as the means of avoiding the execution of such threat,
commits criminal intimidation."
Explanation.-- A threat to injure the reputation of any
deceased person in whom the person threatned is
interested, is within this section."
504. Intentional insult with intent to provoke
breach of the peace.-- Whoever intentionally insults,
and thereby gives provocation to any person,
intending or knowing it to be likely that such
provocationi will cause him to break the public peace,
or to commit any other offence, shall be punished
with imprionment of either description for a term
which may extend to two years, or with fine, or with
both.
11) The meaning of these words can be found in
Legal Glossary published by the Central Government, Law
and Justice Department, as Rajbhasha Khand in the year
1988. The meaning given to these words is as under:
Insult : 1. a gross indignity offered to another
whether by act or by word; 2. to offer indignity to
someone.
Intimidation : the act of intimidating, or
inspiring with fear and thereby compelling to
action or inaction; the state of being so
intimidated.
12) The difference between the offence described
in section 3(1)(x) and the offence shown in sections 503
(506) and 504 of IPC is the effect intended by the act of
the accused. The effect intended by the act of the accused
can be found in second ingredient already mentioned of
section 3(1)(x) of the Act. There is one more distinction
and in the section under consideration the “place" is
mentioned for such act it is the third ingredient already
quoted.
13) The offence of criminal insult mentioned in
section 504 of IPC can be proved by proving the words
used, signs made or visible representation made by the
accused in view of the aforesaid literary meaning. In the
same way the ingredient insult used in the section under
consideration can be proved. It can be said that these are
few ways for proving the act of insult and in fact the way
in which human feeling can be hurt, such action also can
be proved. Intimidation involves threat with intention to
create fear. The offence involving intimidation can be
proved by proving the intention of the accused and it is
not necessary for the prosecution to prove that the result
was actually attained.
14) It is already observed that for proof of the
offence punishable under section 3(1)(x) of the Act it is
necessary to prove third ingredient of the offence viz. the
act was committed at a place "within public view."
15) The learned counsel for the petitioner placed
reliance on some reported cases to show as to how the
last ingredient is interpreted. In the case reported as 2006
All MR (Cri) 3197 (Balu Galande v. State of Maharashtra)
Aurangabad Bench of this Court had occasion to consider
this term. The learned Single Judge considered the
observations made by the Delhi High Court (in the matter
decided by 3 Judges, per majority) and reported as (2004)
Delhi Law Crimes 915 (Daya Bhatnagar & Others v.
State). It appears that the Delhi High Court considered
the principle that "graver is the offence stronger should
be the proof". The Delhi High Court held that it is
condition about the place and it is created with particular
purpose. It is observed that meaning of this term is that
public persons present (however small in number it may
be), should be independent, impartial and not interested
in any of the parties. In other words, the persons having
any kind of close relationship or associated with the
complainant would necessarily get excluded. Thus, the
interpretation shows that the utterance of abuses should
be heard and viewed at least by one independent person.
The learned Single Judge of this Court observed that the
witnesses who are relatives, friends, persons having blood
relationship or the persons having close business or
fiduciary relationship with complainant/victim are
excluded from the purview of word “public” used in this
ingredient. The learned Single Judge of this Court then
considered one judgment reported as 2005 (3) Mah. L.J.
1006 (V.P. Shetty v. Senior Inspector of Police) in which
the case reported as 2001 All MR (Cri) 219 (Bai @
Laxmibai Poul v. State of Maharashtra) was referred. The
learned Single Judge then observed that to attract the
offence both the conditions that (1) the act amounting to
insult should be audible; and, (2) visible to the public,
should be satisfied.
16) The aforesaid matter was decided by the
learned Single Judge of this Court on 13-4-2006. Then
came the decision of a Division Bench of this Court from
the Principal Seat which is reported as 2005 (3) Mh.L.J.
368 (Pradnya Kenkare v. State of Maharashtra).
Interpretation and conclusion of the Division Bench of the
aforesaid term can be found in paragraph 8 of the
reported judgment which is as under :-
“8. However, the learned Advocate is justified in
contending that the complaint nowhere discloses that
the said expression was used in public view. In fact,
the contents of the FIR nowhere disclose that the said
expression was communicated to the complainant
either in the place accessible to the public or in the
presence of the public. It is nowhere stated by the
complainant that at the time when the said statement
was made by the petitioner No.2, i.e. on 15th August,
2004 at 9.30 a.m., there was any stranger to witness
the said incident. The provision of section 3(1)(x) of
the said Act would be attracted only in case of
insulting or intimidating a member of the schedule
caste in any place within a public view. The
expression “in any place within public view” has
specific meaning. It does not mean that every
allegation made in a public place that itself would
amount to an offence under the said Act. The
expression “public view” has been prefixed by the
preposition “within” which in fact follows the
expression : ”in any place”. In other words, the
expression relating to the location of the alleged
offence is qualified by the requirement of being
“within public view”. The act of insult or intimidation
must be visible and audible to the public in order to
constitute such act to be an offence under section
3(1)(x) of the said Act. In the provision of law
comprised under section 3(1)(x) of the said Act, the
word “view” refers to that of ‘public’ but prefixed by
the expression “in any place within”. Being so, the
word “public” not only relates to the location defined
by the word “place” but also to the subjects
witnessing the incidence of insult or intimidation to
the member of scheduled caste or tribe. Therefore,
the incidence of insult or intimidation has to occur in
a place accessible to and in the presence of the
public. The presence of both these ingredients would
be absolutely necessary to constitute an offence
under the said provision of law. The complaint
disclosing absence of both or even any one of those
ingredients would not be sufficient to accuse the
person of having committed an offence under section
3(1)(x) of the said Act.”
17) The Division Bench has summed up the meaning
in following sentence :-
“therefore, the incidents of insult or intimidation
have to occur in place accessible to and in the
presence of public. The presence of both these
ingredients would be absolutely necessary to
constitute the offence.”
Subsequent to the aforesaid decision, the Hon’ble
Apex Court gave meaning of the aforesaid ingredient in
the case reported as 2009 (2) Mh.L.J. 22 (Swaran Singh
v. State). The relevant portion of the decision is in
paragraph 28 and 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 Stage, and not by private
persons or private bodies.”
19) The decision of the Apex Court shows that wider
meaning is given by the Apex Court to the ingredient than
the meaning given by the learned Single Judge and the
Division Bench of this Court in the cases cited supra. In
short, the Apex Court has given the meaning of this place
as:-
(1) the place is within public view when it can be
seen by public, but not necessary that persons
passing by that side saw or heard the incident and,
also;
(2) the place which is not visible to public but in that
case if the incident took place when some members
of public were there (not merely relatives or friends)
it turns into the place within public view.
20) In view of the aforesaid interpretation made by
the Hon’ble Apex Court, wider meaning needs to be given
to the last ingredient. It can be said that the Hon'ble Apex
Court has used literal construction for giving meaning.
This meaning is not leading to ambiguity.
21) The old provision of Section 3(1)(x) of the Act
and the new provision of section 3(1)(r) & (s) are already
quoted. Difference between the two provisions shows that
the previous provision of section 3(1)(x) is kept intact as
section 3(1)(r) and the act of giving abuses is separated in
section 3(1)(s) of the new provision. However, the
ingredient (in any place within public view) is still there in
the new provision for both these offences. It can be said
that even if there was no separation of offence of abuses,
the previous section was covering this offence also.
22) For getting decision on merit learned counsel
for the applicants placed reliance on some reported cases
like :-
(1) 2008 (12) SCC 531 (Gorige Pentaiah v. State of
A.P.);
(2) AIR 1960 SC 866 (R.K. Kapur v. State of Punjab);
(3) (1992) Supp. (1) SCC 335 State of Haryana vs.
Bhajanlal).
23) In this case power of this Court under section
482 is mentioned and the grounds on which proceeding or
FIR can be quashed are discussed by giving some
illustrations. Learned counsel submitted that in the
present case the complaints are frivolous and allowing the
prosecution to continue would amount to abuse of process
of law. This Court has already considered the relevant
material available against the applicants from both the
cases. It will be a matter of appreciation of the aforesaid
material and that can be done by the trial Court only. This
Court holds that the relief cannot be given.
24) In the result, the applications stand dismissed.
Interim relief stands vacated.
Sd/- Sd/-
(Smt. I.K. JAIN, J.) (T.V. NALAWADE, J. )
No comments:
Post a Comment