Partly allowed

Harish v. State of Kerala

Kerala HC30 Sept 2016Crl.Rev.Pet/3888/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal revision petition seeking discharge. The court held that the ingredients for an offence under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were not satisfied because the alleged incident occurred within a residential building and was not witnessed in public view.

What did the court decide?

Revision petitioner discharged in respect of the offence under Section 3(1)(X) of the Act; to face trial for remaining offences.

Harish Vs State of Kerala — Caste Atrocities | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938

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Crl.Rev.Pet.No. 3888 of 2009 ( )

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S.C.NO.262/2009 of SESSIONS COURT, PATHANAMTHITTA DATED 19-10-2009

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REVISION PETITIONER(S)/ACCUSED:

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HARISH, S/O.GANGADHARAN, KESAVE NILAYAM, ARUVAPPULAM VILLAGE, KOZHENCHERRY TALUK.

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BY ADVS.SRI.S.SREEKUMAR SRI.T.M.JAFARKHAN

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.N.B.SUNILNATH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3009-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 3888 of 2009 ( )

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APPENDIX

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PETITIONER'S ANNEXURES

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ANNEXURE I TRUE COPY OF FINAL REPORT FILED BY THE POLICE

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ANNEXURE II TRUE COPY OF THE JUDGMENT IN CRL.M.C.959/09 DATED 31.3.09

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ANNEXURE III TRUE COPY OF ORDER IN M.P.NO.1264/09 DATED 19.10.2009

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RESPONDENT'S ANNEXURES

NIL

//True Copy//

P.A. To Judge

ANU SIVARAMAN, J.

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Crl.R.P.No.3888 of 2009

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......................................................... Dated this, the 30^th day of September, 2016.

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O R D E R

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This revision is filed at the instance of the sole accused in S.C.No.262/09 of the Sessions Court, Pathanamthitta. Offences alleged were under Sections 294(b), 451, 323 and 354 IPC read with Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act').

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It is submitted that the charge against the revision petitioner is that, on 24.11.2007 at 9.30 p.m., the petitioner, who belongs to the Ezhava community, had trespassed into the residential building of the de facto complainant who belongs to a Scheduled Caste community and had called him by community name and assaulted him. It is further alleged that the mother and sister of the de

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Crl.R.P.No.3888 of 2009 : 2 :

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facto complainant attempted to interfere and they were also

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assaulted and thereby, the alleged offences were committed. The petitioner had earlier moved

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Crl.M.C.No.959/2009, to quash the final report. By Annexure II order, dated 31.03.2009, the Crl.M.C. was disposed of, directing the petitioner to move the Sessions Court under Section 227 of the Code of Criminal Procedure, for discharge, pursuant to which, a petition was moved for discharge, which was rejected by Annexure III order, which is under challenge.

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Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

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It is contended by the learned counsel appearing for the revision petitioner that, even if all the allegations against the petitioner are admitted, the offence covered by Section 3(1)(X) of the Act would not be attracted. It is contended that, from a perusal of Annexure I final report itself, it would be revealed that the occurrence was not

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Crl.R.P.No.3888 of 2009 : 3 :

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within public view and no person had even seen the commission of the offence complained of under Section 3 (1)(X) of the Act. In the above circumstances, it is contended that the dismissal of the application for discharge by Annexure III order on the ground that the place of occurrence was near a public road, cannot be sustained. It is further submitted that the revision petitioner was discharged of the offence under Section 354 IPC by Annexure III and charge was directed to be framed accordingly.

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The learned counsel for the revision petitioner would rely on the decisions of the Apex Court in Asmathunnisa v. State of A.P. and Another [2011 KHC 4297] , of this Court in E.K.Nayanar v. M.A.Kuttappan [1997 KHC 66] and Sulochanan V.S. and Others v. State of Kerala and Others [2012 KHC 2975] , to contend that the requirements of the offence being committed in public view and in the presence of the de facto

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complainant have to be satisfied to attract the offence under Section 3(1)(X) of the Act. It is further submitted that the Hyderabad High Court in Bhaskar P. Raju v. State of Telangana and Others [2015 KHC 3646] has considered an identical matter and has held that the section is specific that the insult or intimidation should have taken place in public view. If it is committed in any place which is not within public view, the offence would not be attracted, it is contended. Since in the said case, the alleged offence had taken place in chambers of the officers where there was no public, it could not be said to be within public view. In the above circumstances, it was held that the offence under Section 3(1)(X) of the Act was not made out and proceedings were quashed.

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In the instant case as well, the allegation is that, the revision petitioner had trespassed into the residential building of the de facto complainant and insulted and assaulted him. It is submitted by the learned counsel for

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the revision petitioner that Annexure I would also go to show that statements of the witnesses do not disclose that the offence complained of was actually seen by them or was committed in public view. In the above circumstances, it is contended that the ingredients of the offence have not been made out. I am therefore, of the view that the dismissal of the application for discharge as evidenced by Annexure III is unsustainable. While admitting this revision petition, this Court had ordered an interim stay of all further proceedings in S.C.No. 262/09 of the Sessions Court, Pathanamthitta, which order is still subsists.

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In the above circumstances, this Court is of the view that this is a fit case where the request made by the revision petitioner for discharge under Section 227 of the Code of Criminal Procedure ought to have been allowed by the Sessions Court. This Court therefore, discharges the revision petitioner in respect of the offence under Section 3 (1)(X) of the Act. The revision petitioner shall face trial for

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the remaining offences before the court of appropriate

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jurisdiction. Crl.R.P. is ordered accordingly.

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Sd/-

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ANU SIVARAMAN, JUDGE

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Bb/01/10/2016