Whether offence under SC &ST(Atrocities) Act is made out if caste based abuses were given to complainant on telephone?

1)To constitute the offence under the Act, it must be alleged that

the accused intentionally insulted or intimidated with intention to humiliate

a member of Scheduled Caste or Schedule Tribe in any public place within

public view. In the present case, it is alleged that the offence has been

committed by the petitioners by using the caste based remarks over a mobile

phone call to the informant, or a member of Scheduled Castes, of which

there are no records. Once it is admitted that the alleged conversation over

the mobile phone was not in a public gaze nor witnessed by any third party,

the alleged use of caste words cannot be said to have been committed within

the public view.

2) Merely uttering such wrong words in the absence of any public

view does not show any intention or mens rea to humiliate the complainant

who besides being Sarpanch, belongs to Scheduled Caste community. It

would not, thus, ipso-facto, constitute acts of commission of offence, which

are capable of being taken cognizance under the SC and ST Act, 1989.

3)Moreover, the basic ingredients of the offence in the FIR are

that there must be intentional insult, secondly the insult must be done in a

public place within public view, which is not in the present case. Thus, the

essential ingredients which must be fulfilled, are not found in the present

case. Since these are the penal provisions, the same are to be given a strict

construction and if any of the ingredients are found lacking, it would not

constitute the offence under the SC/ST Act.

Since no offence under Section 3 of the SC & ST Act is found

to be made out, the offence under Section 506 IPC read with Section 34

IPC, which stemmed out of the alleged offence under Section 3 of the SC

and ST Act, is also not made out.

In the High Court of Punjab and Haryana at Chandigarh

 CRR No. 1354 of 2019 (O&M)

Date of Decision: 14.5.2020

Padreep Kumar  Vs  State of Haryana

CORAM:  MR. JUSTICE HARNARESH SINGH GILL

This order shall dispose of above said petitions as these have

arisen out of a common order.

The present petitions have been filed against the order dated

9.5.2019 passed by Additional Sessions Judge (Exclusive Court for Heinous

Crime against Women), Kurukshetra, vide which the application was

disposed of by observing that prima facie offence punishable under Section

506 read with Section 34 IPC and Sections 3 (i) (r), 3 (i) (s) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Act' for

short) was made out and vide order of even date, charges were framed

against the petitioners accordingly.

FIR No. 436 dated 26.10.2017 under Section 506/34 IPC and

Sections 3(1) (r) and 3 (1)(s) of the Act was registered against the

petitioners on the complaint of Rajinder Kumar-respondent No. 2 alleging

that petitioners Sandeep Kumar and Pardeep Kumar used abusive language

against him on mobile phone in the name of his caste and also gave threat to

kill him.

Complainant-respondent No. 2, who is the Sarpanch of the

village alleged that Sandeep Kumar under the influence of Pardeep Kumar

said 'you sister fucker chamaar how dare you take possession from us and

fill the firni with soil, we will kill you. The complainant asked them to stop

and not to use derogatory words and later handed over the phone to one

Devi Dayal, who also told them to stop abusing.

Learned counsel for the petitioners has argued that the

allegations made against the petitioners do not fall within the provisions of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 as the telephonic call is not in a public view. Moreover, it is further

alleged that when Devi Dayal and some other persons approached the

petitioners and told them to respect Rajinder Kumar, who is the Sarpanch,

the petitioners again uttered objectionable remarks and at that time,

respondent No. 2-complainant was not present. Hence, the ingredients of

offence under the SC/ST Act and Section 506/34 IPC are not made out.

Moreover, while summoning the accused the trial Court has

taken into consideration statement of complainant-respondent No. 2,

Rajinder Kumar, Sarpanch recorded under Section 161 Cr.P.C. dated 29.12.2017 (Annexure R-2/1)

It is further argued that the present FIR is a counter-blast to the

fact that construction work of Brahman Dharamshala was stopped on the

application moved by the father of Sandeep alias Deepa (one of the accused)

to the Deputy Commissioner and at the Chief Minister Window, and

resultantly the grant of Rs. 7.00 lacs had to be returned back. Not only this,

the father of petitioner Sandeep alias Deepa gave a complaint to the

Executive Engineer, Panchayati Raj against respondent No. 2-Sarpanch and

also to BDPO for preparing the record on the basis of forged and fabricated

documents. A suit for recovery of Rs. 2.00 lacs, filed by Jasmer Singh-father

of petitioner Pardeep Kumar, is also pending against Devi Dayal, witness in

the present FIR, and the other persons had lodged FIR No. 356 dated

10.9.2014 under Sections 376-D, 365, 452, 506 IPC and Section 25 of the

Arms Act, at Police Station Thanesar against Jasmer Singh father of

petitioner Pardeep Kumar. Learned counsel for the petitioners has relied

upon the judgment of the Co-ordinate Bench of this Court in the case of

Dharambir versus State of Haryana 2018(3) R.C.R. (Criminal) 244

wherein it has been held that supplementary statement cannot be treated as

part of FIR. He has also relied upon the judgment of this Court in CRR No.

2816 of 2012 titled 'Hari Kishan Garg versus State of Haryana and

another' decided on 11.4.2019.

Per contra, learned State counsel, assisted by counsel for

respondent No. 2, has argued that the allegations made by respondent No. 2

fall within the provisions of SC/ST Act as specific allegations were made

against the petitioners-accused. Learned counsel has drawn the attention of

this Court to the statement of respondent No. 2-Rajinder Kumar, Sarpanch

recorded under Section 161 Cr.P.C. dated 29.12.2017 (Annexure R-2/1).

I have heard the learned counsel for the parties and with their

able assistance have gone through the documents on record.

To constitute the offence under the Act, it must be alleged that

the accused intentionally insulted or intimidated with intention to humiliate

a member of Scheduled Caste or Schedule Tribe in any public place within

public view. In the present case, it is alleged that the offence has been

committed by the petitioners by using the caste based remarks over a mobile

phone call to the informant, or a member of Scheduled Castes, of which

there are no records. Once it is admitted that the alleged conversation over

the mobile phone was not in a public gaze nor witnessed by any third party,

the alleged use of caste words cannot be said to have been committed within

the public view.

The allegations against the petitioners-accused are that caste

based remarks were made by them on mobile phone and when Devi Dayal

along with other persons went to the petitioners asking them to respect

respondent No. 2, who is a Sarpanch, at that moment the complainant was

not present. There is a lot of material on record to indicate that Jasmer

Singh father of Pardeep Kumar (one of the accused) had raised finger

towards the working of respondent No. 2 as Sarpanch and also against Devi

Dayal and this cannot be ignored that on the application of said Jasmer

Singh, grant of Rs. 7.00 lacs had to be returned by the Gram Panchayat.

Merely uttering such wrong words in the absence of any public

view does not show any intention or mens rea to humiliate the complainant

who besides being Sarpanch, belongs to Scheduled Caste community. It

would not, thus, ipso-facto, constitute acts of commission of offence, which

are capable of being taken cognizance under the SC and ST Act, 1989.

It is a settled law that if two views are possible and one gives

rise to suspicion only, as distinguished from grave suspicion the trial Judge

will be empowered to discharge the accused and at that stage, it is not to be

seen whether the trial will end in conviction or acquittal. It has been so held

by the Hon'ble Supreme Court in “Central Bureau of Investigation,

Hyderabad Vs. K.Narayana Rao” 2012 (4) R.C.R.(Criminal), relevant of

which is as under:-

“11) At the stage of Section 227, the Judge has merely to sift

the evidence in order to find out whether or not there is

sufficient ground for proceeding against the accused. In other

words, the sufficiency of ground would take within its fold the

nature of the evidence recorded by the police or the documents

produced before the court which ex facie disclose that there

are suspicious circumstances against the accused so as to

frame a charge against him.”

Exercise of jurisdiction under Sections 227 and 228 Criminal

Procedure Code

21. On consideration of the authorities about the scope of

Sections 227 and 228 of the Code, the following principles

emerge:

(i) The Judge while considering the question of framing

the charges under Section 227 CrPC has the

undoubted power to sift and weigh the evidence for the

limited purpose of finding out whether or not a prima

facie case against the accused has been made out. The

test to determine prima facie case would depend upon

the facts of each case.

(ii) Where the materials placed before the court disclose

grave suspicion against the accused which has not

been properly explained, the court will be fully

justified in framing a charge and proceeding with the

trial.

(iii) The court cannot act merely as a post office or a

mouthpiece of the prosecution but has to consider the

broad probabilities of the case, the total effect of the

evidence and the documents produced before the

court, any basic infirmities, etc. However, at this

stage, there cannot be a roving enquiry into the pros

and cons of the matter and weigh the evidence as if he

was conducting a trial.

(iv) If on the basis of the material on record, the court

could form an opinion that the accused might have

committed offence, it can frame the charge, though for

conviction the conclusion is required to be proved

beyond reasonable doubt that the accused has

committed the offence.

(v) At the time of framing of the charges, the probative

value of the material on record cannot be gone into

but before framing a charge the court must apply its

judicial mind on the material placed on record and

must be satisfied that the commission of offence by the

accused was possible.

(vi) At the stage of Sections 227 and 228, the court is

required to evaluate the material and documents on

record with a view to find out if the facts emerging

therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged

offence. For this limited purpose, sift the evidence as it

cannot be expected even at that initial stage to accept

all that the prosecution states as gospel truth even if it

is opposed to common sense or the broad probabilities

of the case.

(vii) If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion,

the trial Judge will be empowered to discharge the

accused and at this stage, he is not to see whether the

trial will end in conviction or acquittal.”

Therefore, in view of the above, it is evident that the

prosecution has failed to make out a prima facie case for commission of

offence punishable under Section 3 of SC & ST Act.

Moreover, the basic ingredients of the offence in the FIR are

that there must be intentional insult, secondly the insult must be done in a

public place within public view, which is not in the present case. Thus, the

essential ingredients which must be fulfilled, are not found in the present

case. Since these are the penal provisions, the same are to be given a strict

construction and if any of the ingredients are found lacking, it would not

constitute the offence under the SC/ST Act.

Since no offence under Section 3 of the SC & ST Act is found

to be made out, the offence under Section 506 IPC read with Section 34

IPC, which stemmed out of the alleged offence under Section 3 of the SC

and ST Act, is also not made out.

Keeping in view the above facts and circumstances, both the

petitions are allowed. The impugned order dated 9.5.2019, passed by

Additional Sessions Judge (Exclusive Court for Heinous Crime against

Women), Kurukshetra of framing of charges as well as charge sheet dated

9.5.2019 and the FIR is hereby quashed.

(HARNARESH SINGH GILL)

JUDGE

May 14, 2020

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