Vijay Saklani Vs State of Hp and Ors.

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

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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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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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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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.

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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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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.

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A notice of the petition was issued to the informant. The informant appeared through a learned counsel but did not file any reply.

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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.

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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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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.

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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.

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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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I have given considerable thought to the submissions

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made at the bar and have gone through the records carefully.

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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: -

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9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings 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:

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“ 12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao 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

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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:

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( 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.

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For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry 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.

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( 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.

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( 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.

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( 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.

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( 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.

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Similar is the judgment in Maneesha Yadav v. State of

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U.P., 2024 SCC OnLine SC 643 , wherein it was held: -

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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 :

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“ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV 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

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list of myriad kinds of cases wherein such power should be exercised.

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(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.

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(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 within the purview of Section 155(2) of the Code.

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(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.

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(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.

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(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.

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(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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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.

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(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.

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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 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.”

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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.

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Sections 3(1) (r) and 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read as under: -

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(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --

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(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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(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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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.

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The ingredients of this Section were explained by the

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Hon’ble Supreme Court in Shajan Skaria v. State of Kerala, 2024

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SCC OnLine SC 2249 as under:

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55. The basic ingredients to constitute the offence under Section 3(1)(r) of the Act, 1989 are:

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a. Accused person must not be a member of the Scheduled Caste or Scheduled Tribe;

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b. Accused must intentionally insult or intimidate a member of a Scheduled Caste or Scheduled Tribe;

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c. Accused must do so with the intent to humiliate such a person; and

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d. Accused must do so at any place within public view.

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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

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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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“ 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 judgment was followed by the Hon’ble Supreme Court in Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710 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

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

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Similar view was taken in Ramesh Chandra Vaishya v.

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State of U.P., 2023 SCC OnLine SC 668 , 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

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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 caste-related 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 casterelated abuse at the complainant by the appellant), no member of the public was present.”

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17. This position was reiterated in Priti Agarwalla v. State

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(NCT of Delhi), 2024 SCC OnLine SC 973 , 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. 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 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, 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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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 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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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

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which can only be read by the recipient are not within the public view. It was observed:

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“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

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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 hence establish the commission of the offences alleged.”

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Punjab and Haryana High Court held in Pardeep

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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:

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“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 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.

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xx

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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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A similar view was taken in G.P. Hemakoti Reddy vs.

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P.P., Hyderabad and Ors. (12.04.2022 APHC):

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MANU/AP/0578/2022 wherein it was observed:

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“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 out above 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.

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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. The offence 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 member of a Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste.”

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It was held by the Bombay High Court in Yogesh

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Laxman Pandav v. State of Maharashtra, 2023 SCC OnLine Bom 229

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that abusing a person on the telephone does not constitute an offence punishable under the SC and ST Act. It was observed:

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“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

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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..….”

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Thus, no offence is made out by a conversation on a

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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.

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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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It was held in Shajan Sakaria (supra) that every insult

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to a member of a scheduled caste is not covered under Sections 3

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(1) (r) and 3 (1) (s) of the SC & ST Act but only the insults to humiliate the member are covered. It was observed:

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“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 a Scheduled 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 intentional insult 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 to be 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 or intimidation is that the person who is subjected to it belongs to a Scheduled Caste or Scheduled Tribe. We say so because the object behind the enactment of the Act, 1989 was to provide stringent provisions for punishment of offences which are targeted towards persons belonging to the SC/ST communities for the reason of their caste status.”

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The term intent to humiliate was explained as under:

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a. Meaning of the expression “intent to humiliate” appearing in Section 3(1)(r) of the Act, 1989

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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

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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.

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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 a separate 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 it was 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 Scheduled Tribes, who were terrorised and subjected to humiliation and indignations upon assertion of their civil rights and resistance to the practice of untouchability. For this reason, the mere fact that the person subjected to insult or 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.

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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

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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.

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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 of intersecting 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 social context, 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 the base of humiliation. In the East, it is the notion of untouchability that foregrounds the form and content of humiliation.”

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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.

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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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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.

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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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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.

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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.

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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:

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“7. Punishment for other offences arising out of “untouchability”.—(1) Whoever—

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xxxxxxxxx

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(d) insults or attempts to insult, on the ground of “untouchability”, a member of a Scheduled Caste;

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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.”

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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.

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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:

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“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

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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. […]”

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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.”

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In the present case, the FIR does not state that the

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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.

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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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Consequently, the present petition is allowed and the

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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.

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( Rakesh Kainthla) Judge

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12^th September, 2024

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(saurav pathania)

Vijay Saklani v. State of Hp and Ors.

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Vijay Saklani v. State of Hp and Ors.

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