Himachal Pradesh High Court
Vijay Saklani vs State Of H.P. And Others on 12 September, 2024
Neutral Citation No. ( 2024:HHC:8451 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 782 of 2022
.
Reserved on : 5.8.2024
Date of Decision: 12.09.2024
Vijay Saklani ...Petitioner
Versus
State of H.P. and others
Coram
r to ...Respondents
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Arun Kaushal, Advocate.
For the Respondents : Mr. Ajit Sharma, Deputy Advocate
General, for respondents No.1 to
3/State.
Mr. Sanjay Sharma, Advocate, for
respondent No.4.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
quashing of FIR No. 122 of 2022, dated 23.07.2022, for the
commission of offences punishable under Sections 3(1)(r) and
3(1)(s) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, (in short ‘SC&ST Act’) registered
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:8451 )
at Police Station Bhoranj, District Hamirpur, H.P. It has been
asserted that petitioner was working as an Additional
.
Superintendent of Police, in Hamirpur. He was a supervisory
officer of Hamirpur and Sujanpur (Sub-Divisions). The
Superintendent of Police, Hamirpur, marked an inquiry to the
petitioner for investigating the complaint filed by respondent
No. 4/informant. The petitioner conducted the inquiry and
found no substance in the complaint. He submitted a report to
the Superintendent of Police on 09.02.2021. A copy of the report
was forwarded to the informant on 16.02.2021. Respondent
No.3/Superintendent of Police, Hamirpur also furnished a
detailed report to the Director General of Police. The informant
had asserted that he belonged to a Scheduled Caste family and
one Rajesh Kumar submitted a false complaint to the police on
24.02.2015 alleging that respondent No.4/informant had
obstructed Rajesh Kumar from discharging his official duties.
The Investigating Officer prepared a complaint under Section
186 of the Indian Penal Code and submitted it to the learned
Judicial Magistrate First Class (JMFC-II), Hamirpur. This was
accepted by the Court on 10.01.2020 and the complaint was not
held to be maintainable. The informant again submitted a
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Neutral Citation No. ( 2024:HHC:8451 )
complaint vide his letter dated 05.03.2022 and email dated
19.03.2022. This complaint was marked to the petitioner for
.
inquiry. The petitioner conducted the inquiry and submitted his
report dated 28.04.2022. Superintendent of Police, Hamirpur
agreed with the inquiry report. This report was forwarded to the
informant vide letter dated 28.04.2022. The informant called the
petitioner on 05.09.2022 at 5:23 pm. The petitioner was alone in
his office and the entire staff had proceeded to their homes after
5:00 pm. The call ended within 41 seconds. The informant
forwarded WhatsApp messages on the mobile phone of the
petitioner at 5:29 pm. The petitioner took a screenshot of the
incoming call and the messages sent to his mobile phone and
entered a daily diary report in Police Station Sadar, Hamirpur.
The informant filed a false complaint against the petitioner. The
informant had talked to the petitioner for 41 seconds. The FIR
was lodged against the petitioner on 23.07.2022 after a delay of
two months and 18 days. Petitioner had also made a complaint
against the informant to the Competent Court. The contents of
the FIR are false and the complaint was made to harass the
petitioner, who had performed his duties in a bona fide manner.
The Whatsapp messages sent by the informant show his
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Neutral Citation No. ( 2024:HHC:8451 )
intention to file the false complaint. The allegations in the FIR
do not show that the incident had taken place at a public place
.
and mere conversation on the telephone will not attract the
provisions of the SC&ST Act. Therefore, it was prayed that the
present petition be allowed and FIR be ordered to be quashed.
2. The petition was opposed by respondents No.1 to
3/State by filing a reply denying the contents of the petition. It
was asserted that the informant had made a complaint based on
which FIR No.122 of 2022 dated 23.07.2022 was registered
against the petitioner at Police Station Bhoranj for the
commission of offences punishable under Sections 3(1)(r) and
3(1)(s) of the SC&ST Act. The investigation was conducted by the
police. The informant was requested to join the investigation but
he refused to join the investigation. He objected to the
Investigating Officer. The investigation was conducted by the
Superintendent of Police, Hamirpur but the informant failed to
join the investigation. The matter was referred to the Deputy
Inspector General of Police (DIG), Central Zone, Mandi to
appoint some other Investigating Officer. DIG, Central Zone
Mandi entrusted the investigation to the newly posted
Additional Superintendent of Police, Hamirpur who requested
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Neutral Citation No. ( 2024:HHC:8451 )
the informant to join the investigation but the informant
refused to do so by saying that an Officer of the Scheduled Caste
.
Community and above the rank of Superintendent be appointed
to carry out the investigation. The matter was again referred to
the DIG. The investigation could not be completed due to the
non-cooperation of the informant. The police prepared the
cancellation report, which is awaiting the orders of the
Competent Court; therefore, it was prayed that appropriate
orders be passed.
3. A notice of the petition was issued to the informant.
The informant appeared through a learned counsel but did not
file any reply.
4. I have heard Mr Arun Kaushal, learned Counsel for
the petitioner, Mr Ajit Sharma, learned Deputy Advocate General
for respondents No.1 to 3/State and Mr Sanjay Sharma, learned
counsel for respondent No. 4/informant.
5. Mr Arun Kaushal, learned counsel for the petitioner
submitted that as per the allegations made in the FIR, the
informant had called the petitioner and the petitioner abused
him in the name of his caste. This is highly improbable as the
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Neutral Citation No. ( 2024:HHC:8451 )
call lasted for 41 seconds and it is not possible to carry out the
conversation mentioned in the FIR in 41 seconds. The call made
.
on the mobile phone of the petitioner does not fall within the
purview of Sections 3(1)(r) and 3(1)(s) of the SC&ST Act as the
incident had not taken place within the public view; therefore,
he prayed that the present petition be allowed and the FIR be
ordered to be quashed.
6. Mr Ajit Sharma, learned Deputy Advocate General for
respondents No.1 to 3/State submitted that the police had filed a
cancellation report in view of the non-cooperation of the
informant. The allegations made in the FIR were not established
after the inquiry, therefore, he prayed that an appropriate order
be passed.
7. Mr. Sanjay Sharma, learned counsel for respondent
No.4/informant submitted that the allegations in the FIR
constitute the commission of a cognizable offence and the police
erred in preparing the cancellation report. The Competent Court
is seized of the matter and this Court should not exercise the
jurisdiction under Section 482 of Cr.P.C. to quash the FIR. He
prayed that the present petition be dismissed.
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Neutral Citation No. ( 2024:HHC:8451 )
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
9. The parameters for exercising jurisdiction under
Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme
Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it
was observed: –
9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminalproceedings has been succinctly summarized by this Court
in the case of Indian Oil Corporation v. NEPC India Limited
(2006) 6 SCC 736: 2006 INSC 452 after considering the
earlier precedents. It will be apposite to refer to the
following observations of this Court in the said case,which read thus:
“12. The principles relating to the exercise of
jurisdiction under Section 482 of the Code of CriminalProcedure to quash complaints and criminal
proceedings have been stated and reiterated by thisCourt in several decisions. To mention a few–
Madhavrao Jiwajirao Scindia v. SambhajiraoChandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal
Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri)
1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri)
1045], State of Bihar v. Rajendra Agrawalla [(1996) 8
SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of
Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000)
3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri)
786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002
SCC (Cri) 19] and Zandu Pharmaceutical Works.
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005
SCC (Cri) 283]. The principles, relevant to our purpose
are:
(i) A complaint can be quashed where the
allegations made in the complaint, even if they are
taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out the case alleged against the accused.
For this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed
rinquiry nor a meticulous analysis of the material
nor an assessment of the reliability or
genuineness of the allegations in the complaint is
warranted while examining prayer for quashing a
complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or
to cause harm, or where the allegations are absurd
and inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of
the complaint is warranted only where the
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complaint is so bereft of even the basic facts which
are necessary for making out the offence.
(v.) A given set of facts may make out: (a) purely a
.
civil wrong; or (b) purely a criminal offence; or (c)
a civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or
has been availed, is not by itself a ground to quash
the criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal
offence or not.
10. Similar is the judgment in Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643, wherein it was held: –
12. We may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan
Lal1992 Supp (1) SCC 335: 1990 INSC 363:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under ChapterXIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
.
information report or the complaint, even if
they are taken at their face value and accepted
in their entirety do not prima facie constitute
any offence or make out a case against the
accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
r within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
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Neutral Citation No. ( 2024:HHC:8451 )
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
.
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.
103. We also give a note of caution to the effect
that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
r rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint
and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the
court to act according to its whim or caprice.”
11. The informant made a complaint to the police
asserting that he had made a call to the petitioner on 05.05.2022
at 5:30 pm from his mobile number to talk to the petitioner
about a complaint made by the informant. The informant asked
the petitioner about the details of the case and mentioned his
name. The petitioner misbehaved with the informant and told
him that the investigation was continuing and that if the details
were required, the application should be filed in the Court. He
would not supply any details. The informant told the petitioner
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that he was the complainant and he was ready to give his
statement if more facts were needed in the matter. He had
.
certain evidence, which would be useful in the investigation of
the case. The petitioner replied that he did not require any
evidence and that persons like the informant had spoiled
society. The informant was in the habit of filing the complaint
and getting the money. The informant told the petitioner that he
would have to take action against him if he (the petitioner)
abused the informant in the name of his caste. The words were
used by the informant in the presence of the office staff over the
phone which amounted to insulting a member of a Scheduled
Caste Community in a public place since the name of the
informant was mentioned by the petitioner and he was abused in
the name of caste.
12. Sections 3(1) (r) and 3 (1) (s) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act read as
under: –
(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;
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Neutral Citation No. ( 2024:HHC:8451 )
(s) abuses any member of a Scheduled Caste or a
Scheduled Tribe by caste name 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.
13. The ingredients of this Section were explained by the
Hon’ble Supreme Court in Shajan Skaria v. State of Kerala, 2024
SCC OnLine SC 2249 as under:
55. The basic ingredients to constitute the offence under
Section 3(1)(r) of the Act, 1989 are:
a. Accused person must not be a member of the
Scheduled Caste or Scheduled Tribe;
b. Accused must intentionally insult or intimidate a
member of a Scheduled Caste or Scheduled Tribe;
c. Accused must do so with the intent to humiliate
such a person; and
d. Accused must do so at any place within publicview.
14. It is apparent that the essential ingredient of the
commission of offences is that the incident had taken place in a
public place. It was laid down by Hon’ble Supreme Court in
Swarn Singh versus State, 2008 (8) SCC 435 that the public place
ordinarily means a place owned or leased by the Government or
instrumentality of the State but not by a private person or
private view. It was observed:
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Neutral Citation No. ( 2024:HHC:8451 )
“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 not in
the public view. However, if the offence is committed
outside the building e.g. on 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.”
(Emphasis supplied)
15. This judgment was followed by the Hon’ble Supreme
Court in Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710
and it was held: –
14. Another key ingredient of the provision is insult or
intimidation in “any place within public view”. What is to
be regarded as “place in public view” had come up for
consideration before this Court in the judgment reported
as Swaran Singh v. State [Swaran Singh v. State, (2008) 8
SCC 435: (2008) 3 SCC (Cri) 527]. The Court had drawn a
distinction between the expression “public place” and “in
any place within public view”. It was held that if an::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )offence is committed outside the building e.g. on a lawn
outside a house, and the lawn can be seen by someone
from the road or lane outside the boundary wall, then the.
lawn would certainly be a place within the public view. On
the contrary, if the remark is made inside a building, but
some members of the public are there (not merely
relatives or friends) then it would not be an offence since
it is not in the public view (sic) [Ed. : This sentence
appears to be contrary to what is stated below in the
extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e,
and in the application of this principle in para 15, below:
“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.”]
15. As per the FIR, the allegations of abusing the
informant were within the four walls of her building. It is
not the case of the informant that there was any member
of the public (not merely relatives or friends) at the timeof the incident in the house. Therefore, the basic
ingredient that the words were uttered “in any place
within public view” is not made out. In the list ofwitnesses appended to the charge sheet, certain witnesses
are named but it could not be said that those were thepersons present within the four walls of the building. The
offence is alleged to have taken place within the four walls
of the building. Therefore, in view of the judgment of thisCourt in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC
435: (2008) 3 SCC (Cri) 527], it cannot be said to be a place
within public view as none was said to be present within
the four walls of the building as per the FIR and/or
charge-sheet.”
16. Similar view was taken in Ramesh Chandra Vaishya v.
State of U.P., 2023 SCC OnLine SC 668, wherein it was held: –
“16. The first F.I.R. registered at the instance of the
complainant is silent about the place of occurrence and::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )who, being a member of the public, was present when the
appellant is alleged to have hurled caste-related abuses at
the complainant. However, on a reading of the second.
F.I.R. registered at the behest of the appellant, it appears
that the incident took place at the house of the appellant.
17. The first question that calls for an answer is whether it
was at a place within public view that the appellant hurledcaste-related abuses at the complainant with an intent to
insult or intimidate with an intent to humiliate him. From
the charge sheet dated 21st January 2016 filed by the I.O., it
appears that the prosecution would seek to rely on theevidence of three witnesses to drive home the charge
against the appellant of committing offences under
sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These
three witnesses are none other than the complainant, hiswife and their son. Neither the first F.I.R. nor the charge
sheet refers to the presence of a fifth individual (a
member of the public) at the place of occurrence (apart
from the appellant, the complainant, his wife and their
son). Since the utterances, if any, made by the appellantwere not “in any place within public view”, the basic
ingredient for attracting section 3(1)(x) of the SC/ST Act
was missing/absent. We, therefore, hold that at therelevant point in time of the incident (of hurling of caste-
related abuse at the complainant by the appellant), no
member of the public was present.”
17. This position was reiterated in Priti Agarwalla v. State
(NCT of Delhi), 2024 SCC OnLine SC 973, wherein it was observed-
“20. The cumulative effect of the structured application to
a given situation is that the intentional insult or abuse
coupled with the humiliation is made in any place within
public view. The expression “in any place within public
view” has an important role to play in deciding whether
the allegation attracts the ingredients of an offence or
not, and has been the subject matter of consideration in
the following decisions:
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Neutral Citation No. ( 2024:HHC:8451 )
(1) Swaran Singh v. State (2008) 8 SCC 435-
“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 publicview. It could have been a different matter had the alleged
offence been committed inside a building and also not in
the public view. However, if the offence is committed
outside the building e.g. on a lawn outside a house, andthe 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 publicare 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 otherhand, 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 instrumentalityof the State, and not by private persons or private bodies.”
(2) Daya Bhatnagar v. State2004 SCC OnLine Del 33.-
“19. The SC/ST Act was enacted with a laudable object to
protect vulnerable sections of society. Sub-clauses (i) to
(xv) of Section 3(1) of the Act enumerate various kinds of
atrocities that might be perpetrated against Scheduled
Castes and Scheduled Tribes, which constitute an offence.
However, Sub-clause (x) is the only clause where even
offending “utterances” have been made punishable. The
Legislature required ‘intention’ as an essential ingredient
for the offence of ‘insult’, ‘intimidation’ and
‘humiliation’ of a member of the Scheduled Casts or
Scheduled Tribe in any place within ‘public view’.
Offences under the Act are quite grave and provide
stringent punishments. Graver is the offence, stronger
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Neutral Citation No. ( 2024:HHC:8451 )
should be the proof. The interpretation which suppresses
or evades the mischief and advances the object of the Act
has to be adopted. Keeping this in view, looking at the
.
aims and objects of the Act, the expression “public view”
in Section 3(1)(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 impartialand not interested in any of the parties. In other words,
persons having any kind of close relationship or
association with the complainant would necessarily get
excluded.”
(3) Pramod Suryabhan Pawar v. State of Maharashtra (before the
High Court of Bombay) 2016 SCC OnLine Bom 15947-
“17. The requirement of section 3(1)(x) of the old Act is
intentional insult and intimidation with intent to
humiliate the person belonging to a Scheduled Caste orScheduled Tribe in any place within public view. Messages
sent on WhatsApp cannot be said to be an act of
intentional insult or intimidation or an intent tohumiliate in a public place within public view. As such it is
prima facie seen that no offence under the provisions of
the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 is attracted in the case
in hand.”
18. It was laid down by the Hon’ble Supreme Court in
Parmod Suryabhan Pawar vs. State of Maharashtra 2019 (9) SCC
608 that a message sent on a private messenger like WhatsApp
which can only be read by the recipient are not within the public
view. It was observed:
“23. Without entering into a detailed analysis of the
content of the WhatsApp messages sent by the appellant
and the words alleged to have been spoken, it is apparent
that none of the offences set out above are made out. The::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )messages were not in public view, no assault occurred,
nor was the appellant in such a position to dominate the
will of the complainant. Therefore, even if the allegations.
set out by the complainant with respect to the WhatsApp
messages and words uttered are accepted on their face, no
offence is made out under the SC/ST Act (as it then stood).
The allegations on the face of the FIR do not henceestablish the commission of the offences alleged.”
19. Punjab and Haryana High Court held in Pardeep
Kumar v. State of Haryana, 2020 SCC OnLine P&H 671 that a
conversation between two persons over a mobile phone does not
fall within the definition of a public place. It was observed:
“10. To constitute the offence under the Act, it must be
alleged that the accused intentionally insulted or
intimidated with an intention to humiliate a member of a
Scheduled Caste or Schedule Tribe in any public placewithin 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 callto the informant, or a member of Scheduled Castes, of
which there are no records. Once it is admitted that thealleged conversation over the mobile phone was not in a
public gaze nor witnessed by any third party, the allegeduse of caste words cannot be said to have been committed
within the public view.
xx
12. 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 the 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.”
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Neutral Citation No. ( 2024:HHC:8451 )
20. A similar view was taken in G.P. Hemakoti Reddy vs.
P.P., Hyderabad and Ors. (12.04.2022 – APHC):
.
MANU/AP/0578/2022 wherein it was observed:
“13. A perusal of the abovesaid judgments would go to
show that it was held that without entering into a detailed
analysis of the content of the Whatsapp messages sent by
the appellant therein and the words alleged to have been
spoken, it is apparent that none of the offences set outabove are made out. It is also held that the messages were
not in public view, no assault occurred nor was the
appellant in such a position so as to dominate the will of
the complainant.
14. Under Section 3(1)(x) of the Act, 1989, whoever, not
being a member of a Scheduled Caste or a Scheduled Tribe
intentionally insults or intimidates with intent to
humiliate a member of a Scheduled Caste or a Scheduled
Tribe in any place within public view, is punishable. Theoffence under the Act, 1989 is not established merely on
the fact that the informant is a member of a scheduled
caste unless there is an intention to humiliate a memberof a Scheduled Caste or Scheduled Tribe for the reason
that the victim belongs to such caste.”
21. It was held by the Bombay High Court in Yogesh
Laxman Pandav v. State of Maharashtra, 2023 SCC OnLine Bom 229
that abusing a person on the telephone does not constitute an
offence punishable under the SC and ST Act. It was observed:
“8….Further, she states that when her husband had given
a phone call to the landlord Mr. Murlidhar Tantak to
apprise him of the behaviour of the tenant, at that time,
he had abused as well as in between it is stated that the
appellants had also abused. Meaning thereby, those::: Downloaded on – 12/09/2024 20:32:06 :::CIS
21
Neutral Citation No. ( 2024:HHC:8451 )abuses were given on the phone. Abuses, when given on
the phone, cannot be said to be within public view or in a
public place so as to attract the ingredients of an offence.
punishable under Section 3(1)(r) or 3(1)(s) of
the Atrocities Act……”
22. Thus, no offence is made out by a conversation on a
telephone as the telephone is not a public place. In the present
case, the incident had taken place when the informant called the
petitioner on his mobile phone. As per the informant, the
petitioner had used the words in the presence of his office staff.
Admittedly he was not present in the office of the petitioner and
the statement made by him that the words were used in the
presence of the office staff is hearsay and inadmissible in
evidence.
23. The allegations made in the FIR show that when the
words were used by the petitioner, the informant had heard
them over the phone and the incident does not satisfy the
requirement of using the words in a public place within the
public view. Hence, even if the allegations in the FIR are
assumed to be correct, no case for the commission of offences
punishable under Section 3(1)(r) and 3(1)(s) of the SC&ST Act is
made out against the petitioner.
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Neutral Citation No. ( 2024:HHC:8451 )
24. It was held in Shajan Sakaria (supra) that every insult
to a member of a scheduled caste is not covered under Sections 3
.
(1) (r) and 3 (1) (s) of the SC & ST Act but only the insults to
humiliate the member are covered. It was observed:
“60. Thus, the dictum as laid aforesaid is that the offence
under Section 3(1)(r) of the Act, 1989 is not established
merely on the fact that the complainant is a member of aScheduled Caste or a Scheduled Tribe unless there is an
intention to humiliate such a member for the reason that
he belongs to such community. In other words, it is not
the purport of the Act, 1989 that every act of intentionalinsult or intimidation meted out by a person who is not a
member of a Scheduled Caste or Scheduled Tribe to a
person who belongs to a Scheduled Caste or Scheduled
Tribe would attract Section 3(1)(r) of the Act, 1989 merely
because it is committed against a person who happens tobe a member of a Scheduled Caste or Scheduled Tribe. On
the contrary, Section 3(1)(r) of the Act, 1989 is attracted
where the reason for the intentional insult orintimidation is that the person who is subjected to it
belongs to a Scheduled Caste or Scheduled Tribe. We sayso because the object behind the enactment of the Act,
1989 was to provide stringent provisions for punishment
of offences which are targeted towards persons belongingto the SC/ST communities for the reason of their caste
status.”
25. The term intent to humiliate was explained as under:
a. Meaning of the expression “intent to humiliate”
appearing in Section 3(1)(r) of the Act, 1989
61. The words “with intent to humiliate” as they appear
in the text of Section 3(1)(r) of the Act, 1989 are
inextricably linked to the caste identity of the person who
is subjected to intentional insult or intimidation. Not::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )every intentional insult or intimidation of a member of a
SC/ST community will result in a feeling of caste-based
humiliation. It is only in those cases where the.
intentional insult or intimidation takes place either due to
the prevailing practice of untouchability or to reinforce
the historically entrenched ideas like the superiority of
the “upper castes” over the “lower castes/untouchables”,the notions of ‘purity’ and ‘pollution’, etc. that it could be
said to be an insult or intimidation of the type envisaged
by the Act, 1989.
62. We would like to refer to the observations of this
Court in Ram Krishna Balothia (supra) to further elaborate
upon the idea of “humiliation” as it has been used under
the Act, 1989. It was observed in the said case that the
offences enumerated under the Act, 1989 belong to aseparate category as they arise from the practice of
‘untouchability’ and thus the Parliament was competent
to enact special laws treating such offences and offenders
as belonging to a separate category. Referring to the
Statements of Objects and Purposes of the Act, 1989 itwas observed by this Court that the object behind the
introduction of the Act, 1989 was to afford statutory
protection to the Scheduled Castes and the ScheduledTribes, who were terrorised and subjected to humiliation
and indignations upon assertion of their civil rights andresistance to the practice of untouchability. For this
reason, the mere fact that the person subjected to insultor intimidation belongs to a Scheduled Caste or Scheduled
Tribe would not attract the offence under Section 3(1)(r)
unless it was the intention of the accused to subject the
concerned person to caste-based humiliation.
63. V. Geetha in her paper titled Bereft of Being: The
Humiliations of Untouchability describes humiliation as an
experience that is “felt, held and savoured in the very gut of
our existence.” Humiliation, in her understanding, can
either be suffered as a one-time occurrence which bruises
the self-esteem or pride of an individual, or it can be
“suffered as a condition that is degrading and wounding.” In::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )the words of Gopal Guru, humiliation is not so much a
physical injury but is in the nature of a psychological
injury that leaves a permanent scar on the heart.
.
64. Explaining the social structures that perpetuate
humiliation, Gopal Guru, in an introduction to his
book writes that “humiliation is almost endemic to social
life that is active basically through asymmetries ofintersecting sects of attitudes – arrogance and obeisance,
self-respect and servility and reverence and
repulsion. Discussing on how the basis of humiliation
varies in different societies, depending upon the socialcontext, he observes that the idea and practice of
humiliation “continues to survive in different forms
depending upon the specific nature of the social context. For
example, in the West, it is the attitude of race that is at thebase of humiliation. In the East, it is the notion of
untouchability that foregrounds the form and content of
humiliation.”
65. While Gopal Guru makes the aforesaid observation in
the context of different societies in relation to one
another, such as the East and the West, in our opinion the
observations are equally applicable to specific individual
societies as well wherein multiple varying grounds of
humiliation like gender, caste, race, etc. can co-exist and
apply to the same or different individuals and groups.
66. Bhikhu Parekh in his paper titled Logic of
Humiliation attempts to differentiate humiliation from
other concepts that it is generally confused with. He gives
the example of the ticket inspector who threw Gandhi off
the train in South Africa to argue that humiliation might,
but need not, involve physical cruelty. On the contrary, he
contends that a man who starves another to death and
tortures him shows cruelty but does not necessarily
humiliate him. He argues the same regarding the
difference between insult and humiliation and observes
that although humiliation generally involves insult, yet
insult alone is not sufficient to constitute humiliation.
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Neutral Citation No. ( 2024:HHC:8451 )
67. On the social context of humiliation, Parekh writes
that “organised or institutionalized humiliation exists when
social institutions and practices embody disrespect for, and
.
systematically violate the self-respect of, groups of
individuals.” Drawing a distinction between systemic and
regimented humiliation on the one hand as distinguished
from isolated incidents of humiliation on the other, he
observes that while the latter is present in modern liberal
societies, the former is found in societies structured on
the basis of slavery, racial segregation, untouchability,
caste system, hierarchical status, etc. According to him,
the reason for the same is that modern liberal societies,
though marked by deep economic, political and other
inequalities, allow for vertical mobility owing to the fluid
nature of the inequalities. Whereas, societies based on
race, caste system, etc. are grounded in inequalities like
colour, birth, ethnicity, etc. which are unalterable and
deeply entrenched in the very foundational fabric of such
a society. The inflexible nature of the basis of inequalities
leads to the existence of a more structural and systemic
form of humiliation, as the perpetrator is assured of its
place in the structure of society owing to its immobility.
Since no one can be assured of the same in a modern
liberal society which is marked by vertical mobility in the
social structure, there is no incentive for anyone to have a
regimented system of humiliation.
68. Resistance is internal to humiliation, and some
scholars have argued that humiliation is only defined on
the basis of the claims made against it. Thus, those who
are humiliated also inherently possess the capacity to
protest against it. However, those who protest also run
the risk of inciting opposition from those who want to
push the traditionally humiliated groups to the margins.
This apprehension of opposition and pushback from the
dominant against the marginalised is also evident from
the Statements of Objects of the Act, 1989, as discussed by
this Court in Ram Krishna Balothia (supra).
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Neutral Citation No. ( 2024:HHC:8451 )
69. What appears from the aforesaid discussion is that
the expression “intent to humiliate” as it appears in
Section 3(1)(r) of the Act, 1989 must necessarily be
.
construed in the larger context in which the concept of
humiliation of the marginalised groups has been
understood by various scholars. It is not ordinary insult
or intimidation which would amount to ‘humiliation’ that
is sought to be made punishable under the Act, 1989. The
Parliament, by way of different legislations, has over the
years sought to target humiliation based on different
grounds and identities which exist in society.
The Protection of Women from Domestic Violence Act,
2005 seeks to punish humiliation based on gender
inequalities by specifically including the term
‘humiliation’ in the definition of “domestic violence”.
Similarly, The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act,
2013 includes treatment causing humiliation to a female
employee and which may likely affect her health and
safety within the definition of sexual harassment.
70. In our considered view, it is in a similar vein that the
term ‘humiliation’ as it appears in Section 3(1)(r) of the
Act, 1989 must be construed, that is, in a way that it
deprecates the infliction of humiliation against members
of the Scheduled Castes and Scheduled Tribes wherein
such humiliation is intricately associated with the caste
identity of such members.
71. We would also like to refer to Section 7(1)(d) of
The Protection of Civil Rights Act, 1955 (“Civil Rights
Act”) at this juncture to give a more meaningful
construction to Section 3(1)(r) of the Act, 1989. The
provision reads as follows:
“7. Punishment for other offences arising out of
“untouchability”.–(1) Whoever–
xxxxxxxxx
(d) insults or attempts to insult, on the ground of
“untouchability”, a member of a Scheduled Caste;
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Neutral Citation No. ( 2024:HHC:8451 )
shall be punishable with imprisonment for a term of not
less than one month and not more than six months, and
also with fine which shall be not less than one hundred
.
rupees and not more than five hundred rupees.”
72. It is clear from a plain reading of the aforesaid
provision that any insult against a member of a Scheduled
Caste or Scheduled Tribe on the ground of
“untouchability” was punishable with imprisonment for
a maximum term of six months under the Civil Rights Act.
With the passage of time, it was realised by the legislature
that the Civil Rights Act was not adequately sufficient to
tackle caste-based offences and the practice of
“untouchability”, leading to the enactment of the Act,
1989 introducing more stringent provisions for
combating such practices. Section 3(1)(r) of the Act, 1989
should, thus, be seen in the context of Section 7(1)(d) of
the Civil Rights Act. Seen thus, the words “with an intent
to humiliate a member of a Scheduled Caste or Scheduled
Tribe” become inseparable from the underlying idea of
“untouchability” which is sought to be remedied and
punished by the Act, 1989.
73. A two-Judge Bench of this Court in Ramesh Chandra
Vaishya (supra) explained that for an act of intentional
insult to attract the offence under erstwhile Section 3(1)
(x) of the Act, 1989 (which is identical to Section 3(1)(r) of
the Act, 1989) it was necessary that the insult is laced
with casteist remarks. Relevant observations is extracted
hereinbelow:
“18. […]The legislative intent seems to be clear that every
insult or intimidation for humiliation to a person would
not amount to an offence under section 3(1)(x) of the
SC/ST Act unless, of course, such insult or intimidation is
targeted at the victim because of he being a member of a
particular Scheduled Caste or Tribe. If one calls another an
idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any
place within public view, this would obviously constitute
an act intended to insult or humiliate by a user of abusive
or offensive language. Even if the same be directed::: Downloaded on – 12/09/2024 20:32:06 :::CIS
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Neutral Citation No. ( 2024:HHC:8451 )generally to a person, who happens to be a Scheduled
Caste or Tribe, per se, it may not be sufficient to attract
section 3(1)(x) unless such words are laced with casteist.
remarks. […]”
74. Having regard to the reprehensible conduct and the
nature of the derogatory statements made, the appellant,
at best could be said to have prima facie committed the
offence of defamation punishable under Section 500 of
the IPC. If that be so, it is always open for the
complainant to prosecute the appellant accordingly.
However, the complainant could not have invoked the
provisions of the Act, 1989 only on the premise that he is
a member of Scheduled Caste, more so, when a prima
facie conjoint reading of the transcript of the video and
the complaint fails to disclose that the actions of the
appellant were impelled by the caste identity of the
complainant.”
26. In the present case, the FIR does not state that the
words were used to humiliate the informant. It was only said
that the words used by the petitioner over the phone call
amounted to insulting a member of a scheduled caste
community in a public place.
27. The police had also not found any material to file the
charge sheet against the petitioner and had prepared a
cancellation report. Thus, in these circumstances, the
continuation of the proceedings would be an abuse of the
process of the Court.
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Neutral Citation No. ( 2024:HHC:8451 )
28. Consequently, the present petition is allowed and the
FIR No. 122 of 2022, dated 23.07.2022, for the commission of
.
offences punishable under Sections 3(1)(r) and 3(1)(s) of
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, (in short ‘SC&ST Act’) registered at Police
Station Bhoranj, District Hamirpur, H.P and consequential
proceedings arising out of the same are ordered to be quashed.
(Rakesh Kainthla)
Judge
12th September, 2024
(saurav pathania)
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