Surender Sharma Vs State of Hp and Another

For the Petitioner : Mr. Surya Chauhan, Advocate. For the Respondents : Mr. Jitender K. Sharma, Additional Advocate General respondent No.1State. M/s Vinod Chauhan and Ms. Aanchal, Advocates for respondent No.2.

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Rakesh Kainthla,Judge

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The petitioner has filed the present petition against the order dated 22.02.2023, passed by learned Special Judge, Kullu, Himachal Pradesh (learned Trial Court) vide which the objections filed by respondent No.2 (informant before the learned Trial Court) to the cancellation report in F.I.R. No. 68 of 2021, dated 21.03.2023, registered at Police Station Kullu, for the

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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commission of offences punishable under Section 504 read with Section 34 of IPC and Section 3(1)(r)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act ( for short “the Act” ) were allowed and the petitioner was ordered to be summoned as an accused. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present petition are that the informant filed a complaint to the police stating that she was walking her dog in an alley near her house. The accused, his wife and daughter started abusing the informant in the name of her caste. They threatened her not to walk the dog on the road. The police registered F.I.R. and conducted the investigation. The police interrogated 18 persons and found that when the informant reached near the gate of the accused with her dog, the daughter of the accused told her not to bring the dog near the gate of her house because the dog pooped on the road. The informant replied that she was walking on the common road and anybody could move on the same. The accused and his wife came on the spot and this led to an altercation between the accused and the informant. The F.I.R. was silent regarding the use of caste-

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based words. Mohan Singh Chauhan and Heera Devi did not support the informant’s version. Hence, the police prepared a final report seeking the cancellation of the F.I.R. The informant appeared before the learned Court and expressed her dissatisfaction with the police report. Learned Special Judge went through the record and found that the police had not conducted the investigation properly. The victim had specifically stated that the accused insulted her by using caste-based remarks and a prima faice case was made out for the commission of an offence punishable under Section 3(1)(r)(s) of the Act; hence, he ordered the issuance of the summons against the accused.

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Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the informant’s grandmother did not support her version. There was no eye witness as the incident had not taken place in the presence of the public. No person had heard the casteist remarks. She had not specified the exact words used by the accused. The statements of material witnesses were discarded. The incident had not occurred in a public within public view. The allegations in the F.I.R. do not show the commission of a cognizable offence and the learned Trial Court erred in taking cognizance. Hence, it was

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prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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The police filed a status report asserting that the police had prepared a cancellation report that was rejected by the learned Trial Court. The matter is now listed for further orders.

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Respondent No. 2 filed a reply making preliminary submissions regarding lack of maintainability, the petitioner having concealed material facts from the Court and there being no error apparent on the face of the record. The contents of the petition were denied on merits. It was asserted that the petitioner used to pick up quarrels with the informant over the slightest pretext. He used to insult the informant by making casteist remarks. The informant was humiliated and insulted by the petitioner and his family members. The incident had taken place within to public view and the public was not required to present to witness the incident. Hence, it was prayed that the present petition be dismissed.

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I have heard Mr Surya Chauhan, learned counsel for the petitioner, Mr Prashant Sen, learned Deputy Advocate General

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for respondent No.1 and Mr Vinod Chauhan, learned counsel for respondent No. 2.

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Mr Surya Chuhan, learned counsel for the petitioner submitted that as per the F.I.R., the incident was not witnessed by any person which is essential to attract the provisions of Section 3(1)(r)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He relied upon the judgment of Hon’ble Supreme Court in Swaran Singh v. State (2008) 8 SCC 435, GorigePentaiah v. State of A.P., (2008) 12 SCC 531, Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710, Ramesh Chandra Vaishya v. State of U.P., 2023 SCC OnLine SC 668 and Priti Agarwalla v. State (NCT of Delhi), 2024 SCC OnLine SC 973 in support of his submission.

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Mr. Jitender Sharma, learned Additional Advocate General submitted that the police had filed the cancellation report in the matter after finding that there was insufficient evidence regarding the commission of any offence. However, the Court had taken cognizance of the same.

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Mr Vinod Chauhan, learned counsel for respondent No.2 submitted that there is a distinction between the public place

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and a place within the public view. It is sufficient that the offence

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had taken place within the public view and it is not necessary that the incident should have been witnessed by any independent person. The Court has to see sufficient reason for summoning the accused and it is not concerned with securing the conviction. The statement of the informant was sufficient to proceed further in the matter and the learned Trial Court had rightly taken cognizance in the matter. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submission given at Bar and have gone through the record carefully.

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11. Sections 3(1)(r) and 3(1)(s) of the Act read as under:

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“3. Punishments for offences of atrocities- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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xxx xxx

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xxx xxx

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(r) intentionally insults or intimidates with the intent to humiliate a member of the Scheduled Caste or Scheduled Tribe in any place with public view.

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(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;”

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These Sections were interpreted by the Hon’ble

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Supreme Court in Swaran Singh’s case (supra) and it was held that

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where the incident had taken place at the gate of a house that is within the public view; the requirement of Section 3(1)(r) and 3(1)(s) of the Act were satisfied. It was further held that when the incident had taken place inside the building and was witnessed by the public, it would be covered under Section 3(1)(r) and 3(1)(s) of the Act. It was observed: -

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“ 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)

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This judgement was followed by the Hon’ble Supreme

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Court in Hitesh Verma’s case (supra) and it was held: -

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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 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. 736 d-e , and in the application of this principle in para 15, below:

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“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.”]

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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 time of 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 of witnesses appended to the charge sheet, certain witnesses are named but it could not be said that those were the persons 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 this Court 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

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said to be present within the four walls of the building as per the FIR and/or charge-sheet.”

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14 . Similar view was taken in Ramesh Chandra Vaishya’s

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case (supra) , wherein it was held: -

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“16. The first F.I.R. registered at the instance of the complainant is silent about the place of occurrence and 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.

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17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled casterelated abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge sheet dated 21^st January 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence 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, his wife 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 appellant were 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 the relevant 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.”

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15. This position was reiterated in Priti Agarwalla’s case

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(supra) , wherein it was observed-

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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.

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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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(1) Swaran Singh v. State (2008) 8 SCC 435 -

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“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. 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.”

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(2) Daya Bhatnagar v. State2004 SCC OnLine Del 33 . -

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“ 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, Subclause (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

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provide stringent punishments. Graver is the offence, stronger 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 to 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 impartial and 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.”

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(3) Pramod Suryabhan Pawar v. State of Maharashtra (before the High Court of Bombay) 2016 SCC OnLine Bom 15947 -

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“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 or Scheduled 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 to humiliate 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.”

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16. Thus, it is apparent from the judgments that there is a

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distinction between a public place and any place within a public view. When the incident happens in a public place that can be seen by any person, it will be a place within the public view and it is not

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essential that in such a situation any person should have witnessed the incident, however, when the incident takes place in a private place but is witnessed by the public, then it will become a

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place within the public view. Thus, requirements of witnessing the

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incident by the public will only arise when the incident takes place at a private place and not at a public place.

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In the present case, the incident had taken place near the gate of the house of the accused on a public alley, which was a common path, therefore, the said place satisfied the requirement of a place within a public view and it is not essential that public should have witnessed the incident. In fact, the situation is similar to Swaran Singh’s case (supra) wherein the incident had taken place near the gate of the house. Hence, the submission that the incident had not taken place at aplace within the public view is not acceptable.

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It was submitted that no person had corroborated the version of the informant. Hence, the learned Trial Court should not have taken cognizance of the matter. This cannot be accepted. There is a distinction between absence of evidence and evidence of absence. Merely because a person had not witnessed the incident does not mean that the incident had not taken place. The informant specifically stated that she was abused in the name of her caste near the gate of the house of the accused. Her testimony is to be tested by cross-examination to determine the truthfulness

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or otherwise and it is premature to say that her testimony is not believable or no reliance can be placed upon the same. It will be for the learned Trial Court to see whether the testimony is sufficient and credible to sustain conviction or not. The Court while issuing the summons is only concerned with the prima facie case and such a case was made out based on the allegations made by the informant in the F.I.R.

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Therefore, there is no infirmity in the summoning order passed by the learned Trial Court. Hence, the present petition fails and the same is dismissed.

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20 The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case

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(Rakesh Kainthla) Judge

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03^rd July, 2024. (Ravinder)

Surender Sharma v. State of Hp and Another

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Surender Sharma v. State of Hp and Another

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