Monday, 1 June 2020

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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