Sunday, 21 February 2016

Whether offence under SC and ST Atrocities Act is made out if abuses are given on mobile phone?

 From the above facts it is clear that   the applicant is
alleged   to   have   given   abuses     on   the   mobile   phone     of   Smt.

Sonawane, Health Assistant,   who   is said to have   recorded the
same  in her mobile. On the next day, at 4.30p.m. Smt. Sonawane
played the recording for hearing by the complainant.    Perusal of
the above  proviso   shows that hearing of the  voice/abuses  in  a
recorded mobile  phone  from  the Arogya Sevika,   allegedly  given
by Dr. Kapgate,  the applicant, would not fall in the ingredients of
Section 3(1)(x)  and would not fall within “within public  view”.
At any rate,  the insult   or intimidation  seems to have not been
hurled directly to the   complainant;   but is said to have been
recorded by the  Arogya Sevika   in her mobile phone.   Thus,   the
above provision being penal  provision,  its interpretation admits of
no dilution  and has to be  strictly  interpreted.    It is not possible
for this court  to put something in the provision which is not there.
In the result, I find that prima facie, no offence u/s 3(1)(x) of the
Act of 1989 is disclosed. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR
CRIMINAL  APPLICATION  (ABA) NO.  524/2015
Dr. Gulab  s/o   Ganpat  Kapgate

v e r s u s
The State of  Maharashtra

 CORAM :     A.B.CHAUDHARI, J.
DATED :     17th December,  2015.
Citation; 2016 ALLMR(CRI)347

Rule.    Rule heard forthwith,  with the consent of the
learned counsel for the  rival parties.

2. This is an application for grant of anticipatory bail in respect
of Crime No.3012/2015 for offence punishable under section 294,
507 of the Indian Penal Code and Section 3 (1)(x) of the SC & ST
(Prevention of Atrocities) Act,1989 registered at Police Station:
Dighori, Dist. Bhandara.   
3. Perused   the   F.I.R.   dated   11.9.2015   lodged   by
complainant­Dr.Savita   Bhaurao   Maldongre,   caste   “Gond”
Scheduled Tribe.   The course of the alleged incriminating material
in the FIR, is roughly translated as under :
“  On the  second day,  dated  10.09.2015,   in the
morning  at  about  8.45,  I had been  on my  duty,
at Primary Health Centre, Barvha.  At about  4.30
p.m.,   Smt.   Sonwane,   Health   Assistant   (Arogya
Sevika), Barvha, had played  the recording of the
abuses  given by  Dr. Kapgate, the present applicant
through   Mobile   Phone   No   9764476745,     which
was given on 9.9.2015 at about 7.54 p.m.   In the
recording  played,  I heard thus: “Where she  ran
away? the  rascal Gondin might have  ran away  to
somebody’s house?   No sooner, I heard  the vulgar

expletives,   I   asked     Dr.   Kapgate,   the   applicant,
about it  and he told me  that  the first  part to give
the tablets to the patients   was his; whereas   the
second part about the abuses in the name of caste,
was not of his conversation.”
4. On the basis of the above allegations,  the complainant
lodged the F.I.R. and the police registered the offence punishable
under section 3 (1) (x) of the Act of 1989  and Sections   294, 507
of the IPC. 
5. Learned counsel for the applicant submitted that the
FIR, prima facie, does not constitute an offence under sec. 3 (1) (x)
of the Act, of 1989,  on the basis of the above statements in the
FIR. He relied on the  decision of the learned Single Judge  of the
Andhra Pradesh High Court in the   case of   Potluri     Poorna
Chandra  Prabhakar Rao  vs. State of UP  (2002) CCR  59, in
which it was held that a telephonic conversation would not amount
to offence punishable u/s 3 (1)(x) of the  Act of 1989.    He relied
on the some other judgments which, in my opinion, are not directly

on the  point.
6. Per contra, the learned A.P.P. opposed the Application
and   prayed   for   dismissal   of   the   same,     on   the     ground   that
investigation   being     underway,     there   is   no   need   to   grant
anticipatory bail. 
7. Heard learned counsel for the rival parties. Considered
the submissions  advanced. Section 3 (1)(x) of the Act of   1989
reads thus:
“ 3(1) (x)  : 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;” (emphasis
supplied).
8. From the above facts it is clear that   the applicant is
alleged   to   have   given   abuses     on   the   mobile   phone     of   Smt.

Sonawane, Health Assistant,   who   is said to have   recorded the
same  in her mobile. On the next day, at 4.30p.m. Smt. Sonawane
played the recording for hearing by the complainant.    Perusal of
the above  proviso   shows that hearing of the  voice/abuses  in  a
recorded mobile  phone  from  the Arogya Sevika,   allegedly  given
by Dr. Kapgate,  the applicant, would not fall in the ingredients of
Section 3(1)(x)  and would not fall within “within public  view”.
At any rate,  the insult   or intimidation  seems to have not been
hurled directly to the   complainant;   but is said to have been
recorded by the  Arogya Sevika   in her mobile phone.   Thus,   the
above provision being penal  provision,  its interpretation admits of
no dilution  and has to be  strictly  interpreted.    It is not possible
for this court  to put something in the provision which is not there.
In the result, I find that prima facie, no offence u/s 3(1)(x) of the
Act of 1989 is disclosed. Hence,  the following order:
ORDER
i) Criminal  Application No.524/2015 is allowed. 

ii) Rule is made absolute in terms of the  ad­interim order  dated
12th  October, 2015  made by this Court.
   

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