Criminal Application No.802 of 2006

13th April, 2006

Petitioner Counsel: Shri. V. D. SAPKAL
Respondent Counsel: Shri. E. P. SAWANT, Shri. S. P. DOUND, Shri. P. B. SHIRSATH

Cases Cited:
Ananta Vasant Sambhare Vs. State of Maharashtra, Cri. W. P. No.45/2001, dt.20-4-2001 [Para 7]
Bai Laxmibai w/o Nivrutti Poul Vs. State of Maharashtra, 2001 ALL MR (Cri) 219 [Para 7,18]
State of Gujrat Vs. Salimbhai Abdul Gaffar Shaikh, (2003)8 SCC 50 [Para 9]
Shri. Venkataraman Devaru Vs. State of Mysore, 1958 SCR 895 [Para 11]
Azam Khan Vs. State of Andhra Pradesh, 1972 Mah.L.J. (Cri.) 674 [Para 11]
Daya Bhatnagar Vs. State, (2004) Delhi Law Crimes 915 [Para 14]
E. Krishnan Nayanar Vs. Dr. M. A. Kuttappan, Member, Kerala Legislative Assembly, 1997 Cri.L.J. 2036 [Para 16]
Yunus Daud Bhura Vs. State of Maharashtra, 2001 ALL MR (Cri) 2065=2001(3) Mh.L.J. 783 [Para 17]
V. P. Shetty Vs. Senior Inspector of Police, 2005 ALL MR (Cri) 2384=2005(3) Mh.L.J. 1006 [Para 18]

JUDGMENT

JUDGMENT:- Rule. Rule made returnable forthwith with consent of the parties.

2. The present petition is filed for quashing of First Information Report so far as it relates to registration of the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereinafter to be referred to as SC and ST Act).

3. The relevant facts in nutshell are that complainant Prabhakar Ramchandra Dalvi (Respondent No.2) belongs to Chambhar caste. Previously he had filed a complaint against nephew of present petitioner. On 1st March, 2006, respondent No.2 filed a complaint against the petitioner with Shrigonda Police, alleging that on that day, at about 7.30 p.m. in the evening, his daughters-in-laws namely Urmila and Jayshree were at the house. At that time, petitioner came to their house and started giving abuses by referring to their caste. The petitioner also threatened the inmates of dire consequences and damaged Maruti Car No. MJF-747 by breaking its glass. This information was given to respondent No.2 when he returned to the house at about 8.00 p.m. While the incident was being narrated to respondent No.2, the petitioner and his brother Haribhau were shouting from their vasti and were insulting respondent No.2 with reference to his Chambhar caste. On the basis of this report, an offence, punishable under Sections 504, 506, 427 of the Indian Penal Code, Section 7(1)(d) of the Protection of Civil Rights Act and Section 3(1)(x) of SC and ST Act, came to be registered against the petitioner.

4. Learned Counsel for the petitioner has submitted that previously respondent No.2 had filed a complaint in respect of offence punishable under Section 3(1)(x) of SC and ST Act, against nephew of the petitioner. Accused in that case approached this Court. This court quashed the F.I.R. in that case so far as it relates to registration of the offence punishable under Section 3(1)(x) of SC and ST Act, on the ground that caste of the complainant was not mentioned in the F.I.R. According to learned Counsel, for registration of an offence punishable under Section 3(1)(x) of SC and ST Act, it has to be shown that (i) the complainant belongs to Scheduled Castes or Scheduled tribes: (ii) that the offender does not belong to Scheduled Caste of Scheduled Tribe and (iii) that the victim had insulted him within public view. According to learned Counsel, in the present case it can be seen from recitals of the F.I.R. that the complainant or members of his family were not insulted within the public view. Therefore, the F.I.R., so far as it relates to registration of the offence punishable under Section 3(1)(x) of the SC and ST Act, deserves to be quashed.

5. Learned Counsel for respondent No.2 has argued the matter elaborately. According to learned Counsel, Respondent No.2 has made a specific reference in the F.I.R. to his caste and caste of the petitioner. The recitals of the F.I.R. show that the members of Respondents family were insulted within public view. Therefore, prayer for quashing the portion of F.I.R. relating to registration of the offence punishable under Section 3(1)(x) of SC and ST Act, cannot be sustained.

6. According to learned Public Prosecutor Shri. Sawant, in the present case, requirements of Section 3(1)(x) of the SC and ST Act are satisfied by the recitals of F.I.R. Therefore, offence in question was properly registered. In this view of the matter, interference of this Court is not called for.

7. At this stage, it may be pertinent to refer to earlier judgment of this Court in the matter of Ananta Vasant Sambhare Vs. State of Maharashtra, delivered in Criminal Writ Petition No.45/2001 on 20th April, 2001. In that case, Division Bench of this Court held that unless caste of the complainant is mentioned in the F.I.R. requirements of Section 3(1)(x) of the SC and ST Act are not satisfied, therefore, the offence under Section 3(1)(x) of SC and ST Act, cannot be registered. At this juncture, it would be pertinent to make reference to another Judgment of this Court in the matter of Bai @ Laxmibai w/o Nivrutti Poul and Ors. Vs. The State of Maharashtra, reported in 2001 ALL MR (Cri) 219. In that case, caste of the complainant was not mentioned in the body of the report though it was shown in the prescribed format of the F.I.R. This Court held that merely mentioning of the caste in one of the columns of format is not sufficient. Having regard to the stringent provisions of the SC and ST Act, this Court has taken a view that there should be strict compliance of the provisions. It is held that unless caste of the complainant and victim is mentioned in the complaint, no offence under various clauses of Section 3 of the SC and ST Act, can be registered. These cases deal with two ingredients of the offence punishable under clause (x) of sub-section 1 of Section 3 of the SC and ST Act, viz. the person insulted should belong to Scheduled Caste or Scheduled Tribe and that the insult should be by a person not belonging to SC and ST.

8. In the present case, we are concerned with the third ingredient of Section 3(1)(x) of the SC and ST Act which requires that the offence has to be committed within a public view. According to learned Counsel for the petitioner, in the present case, the offence has not been committed within a public view. Therefore, F.I.R., so far as it concerns to the registration of the offence under Section 3(1)(x) of SC and ST Act, deserves to be quashed.

9. Some of the judgments of this Court as well as other High Courts, in which meaning of the expression "within public view" is discussed can be noticed at this stage. Before we consider these cases, it must be made clear that Courts have taken different view regarding correct meaning of expression "within public view". The golden rule of interpretation is that the provision is to be read as a whole in the context of other provisions mentioned in the statutes and effort has to be made to ensure that the mischief sought to be cured is taken care of and the remedy is advanced. This aspect has been dealt with by the Apex Court in the matter of State of Gujrat Vs. Salimbhai Abdul Gaffar Shaikh and Ors. reported in (2003)8 SCC 50. Considering the principles for interpretation of the statutes, Their Lordships of the Apex Court observed in para 12 of the report that: "It is a well-settled principle that the intention of legislature must be found by reading the statute as a whole. Every clause of a statute should be construed, to make a consistent enactment of the whole statute. It is also the duty of the court to find out the true intention of the legislature and to ascertain the purpose of the statute and give full meaning to the same. The different provisions in the statute should not be interpreted in the abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express."

10. For the purpose of interpreting the provision or a phrase, the object and reasons for the enactment of the Statute in appropriate case can be considered. However, the object and reasons can only be used, if there is an ambiguity to ascertain what was the object sought to be achieved and the mischief sought to be remedied. Reference to Statements of objects and reasons is permissible for understanding the background, the antecedents, state of affairs, the surrounding circumstances in relation to the statute and the evil, which the statute sought to remedy.

11. These principles would have to be borne in mind while ascertaining a true meaning and import of the expression "within public view". It is not in dispute that the expression "within public view" has not been defined by the ST and ST Act or any other enactment. Normally dictionary meaning and the meaning found in Law Lexicon is considered for ascertaining true import of the provision in question. At the outset it must be pointed out that the expression "within public view" appears to have been used in this statute for the first time, for the formulation of different ingredients of the offence punishable under Section 3(1)(x) of SC and ST Act. Therefore, this expression, is not found in the dictionaries or in Law Lexicon. Considering the words used, it can be seen that Judicial Dictionary by K. J. Aiyar (Twelth Edition of the year 1990) defines word public "pertaining to the people, State or community". Referring to decision of the Supreme Court in the matter of Shri. Venkataraman Devaru Vs. State of Mysore reported in 1958 SCR 895, the word public is shown to include a section of the public in its ordinary acceptation. Another decision of the Supreme Court in the matter of Azam Khan Vs. State of Andhra Pradesh reported in 1972 Mah.L.J. (Cri.) 674, refers to the meaning given in Corpus Juris Secundum that word public ordinarily refers to a joint body of citizens and means that the event is shared, participated or enjoyed by the people at large.

12. Law Lexicon of P. Ramnatha Aiyar 1997 defines word public as general body of mankind of or belonging to the people, the body of people, at large the people of the neighbourhood; the community at large; the people; the whole body politic or all the citizens of the state, the inhabitants of a particular place. So far as the context requires, the meaning given in Oxford Dictionary 1990 edition is similar. The dictionary meaning of word public is of or concerning the people as a whole; open to or shared by all people; done or existing openly. The Law Lexicon does not refer to the meaning of word view which is the other word found in the expression "within public view". The dictionary meaning of the word view found in Oxford Dictionary, is (i) range of vision; extent of visibility; in full view of the crowd: what is seen form a particular from or particular point. Meaning of the word view given by Law Lexicon in legal parlance is: visual inspection; survey (as) jury was taken to view the disputed place; an examination; an act of looking of beholding etc.

13. Turning to the provision in question and the object and reasons for enacting this provision, it can be seen that the statute is enacted for the purpose of preventing commission of offence relating to the atrocities on the members of a Scheduled Caste or Scheduled Tribes: to establish Special courts for expeditious disposal of cases relating to these offences; for the relief and rehabilitation of the victims of such offences and for the matters connected there with or incidental thereto. The Statute came to be enacted as the provisions of the Indian Penal Code as well as Protection of Civil Rights Act, could not effectively curb the menace of the caste disparity. As the existing enactments effectively curb the commission of offences relating to untouchability, Section 3 of SC and ST Act came to be enacted, to deal with 15 different species of the atrocities. To achieve the object of the Act to provide protection from atrocities, deterrent theory of punishment is resorted to. Clause (ii) and (x) of sub-section (1) of Section 3 refer to the insults which are made punishable. Sub-clause (ii) refers to the injury, insult or annoyance to any member of the Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter carcasses or any other obnoxious substance in his premises or in the neighborhood. Clause (x) refers to intentional insults or intimidation with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within public view. Difference in the two provisions is apparent. In the earlier instance, presence of the victim is not necessary. The physical act of dumping obnoxious material in or near the premises of the victim is sufficient to constitute the offence. However, in clause (x) use of expression "within public view" postulates the victim being insulted with reference to his caste in presence of a member of the public. It can therefore be seen that the presence of the victim, the offender and a member of the public are the essential ingredients of the offence referred to in clause (x) of sub-section (1) of Section 3 of SC and ST Act. It appears that the third ingredient requiring that the offence should be committed within public view, is included to eliminate possibility of frivolous prosecution. While affording protection to the members of SC or ST precaution is taken to discourage misuse of the provision.

14. True import of the expression "within public view" will have to be ascertained having regard to the legislative intent and the mischief sought to be cured. However, it would be useful to refer to the decision of this Court as well as other High Courts before ascertaining the true import and meaning of the expression "within public view" occurring in Section 3(1)(x) of the SC and ST Act. Delhi High Court had an occasion to interpret the meaning of expression "within public view" appearing in clause (x). Incidentally it may be pointed out that there was a disagreement in respect of the interpretation and the scope of the expression "within public view" between the Judges of the Division Bench and the matter was referred to 3rd Judge. The decision reported in (2004) Delhi Law Crimes 915 in the matter of Daya Bhatnagar & Ors. Vs. State, refers to the Objects and Reasons for enactment of the statute, dictionary meaning of the word "public" given in corpus secundum and Black's law dictionary and the principles of interpretation of statute. In para 19 of the report it is observed that "The SC and ST Act was enacted with laudable object to protect vulnerable section of the 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 Castes 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 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, (however small number it may be ), should be independent and impartial and not interested in any of the parties. In other words, the persons having any kind of close relationship or association with the complainant, would necessarily get excluded."

15. The Delhi High Court has, therefore, interpreted the expression "within public view" to mean that the utterances should be heard and viewed at least by one independent person. It has excluded the relatives, friends, persons having blood relationship or persons having close business or other fiduciary relationship with the victim from the purview of word public.

16. Another judgment, which needs reference is judgment of Kerala High Court, reported in 1997 Cri. Law Journal 2036 in the matter of E. Krishnan Nayanar Vs. Dr. M. A. Kuttappan, Member, Kerala Legislative Assembly and Ors. In that case, the petitioner was contesting election to Kerala Legislative Assembly from Thalassery Assembly constituency. A Convention of the Left Democratic Front was convened at the Town Bank Auditorium as part of the election program. During the course of the speech, the petitioner made a remark which was insulting to respondent Dr. Kuttappan, who was member of Legislative Assembly. In this context, the Court had occasion to consider the import of expression "public view". In that case admittedly, the victim was not present at the convention. It was held that the requirement that the offence should be committed within public view, has not been satisfied. Learned Judge observed in para 18 of the report that: the words used in clause (x) are not "in public place" but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said Section gets attracted. The Kerala High Court, therefore, found that presence of the offender and the victim at the time of occurrence is essential.

17. The 3rd judgment, which needs reference is the judgment of this Court, reported in 2001(3) Mah.L.J. 783 : [2001 ALL MR (Cri) 2065] in the matter of Yunus Daud Bhura Vs. State of Maharashtra. In that case, an advocate, allegedly insulted Nazir of the Court in his office room, where no one else than himself and the Nazir were present. However members of the staff from the adjoining room heard the utterances and immediately came to the scene of occurrence. In this background it was contended that assuming the allegations to be true, the offence is not committed "within public view" therefore, the proceedings deserve to be quashed. Repelling this contention, this Court observed in para 8 of the report that prima facie, at this stage, I am not inclined to take restricted view of the expression "public view" since prima facie even if the utterances are heard by someone else, it would not be offence having taken place in public view." The Court therefore held that hearing of the utterances amounting to insult are sufficient to satisfy the requirement that the offence should be committed in public view.

18. In judgment of this Court, reported in 2005(3) Mah.L.J. 1006 : [2005 ALL MR (Cri) 2384] in the matter of V. P. Shetty Vs. Senior Inspector of Police and Anr., there was no reference to the offence being committed within public view. In this context. It is observed in para 5 of the report that though plain reading of the complaint prima facie discloses various accusations against the complainant by the petitioner with reference to the Scheduled caste and Scheduled tribe and also discloses abuses having uttered by the petitioner and addressed to the complaint on the ground of complaint being a member of the Scheduled Caste, the complaint does not disclose that accusations having been made within public view. Referring to the earlier decision in the matter of Bai @ Laxmibai N. Poul, [2001 ALL MR (Cri) 219] (supra), it is further observed that the expression "within public view" has specific meaning and in order to attract the provisions of Section 3(1)(x) of the SC and ST Act, the acts amounting to insult or humiliation should be visible and audible to the public. The decision, therefore, lays down that both the conditions that the acts amounting to insult should be audible and visible to the public should be satisfied.

19. Considering the judicial pronouncements on the subject, the expression within public view must be construed to mean that the insult or humiliation must take place in the presence of or in the proximity of at least one independent person. The test of audibility and visibility can be taken to have been satisfied if an independent person is actually present or is at a place where the utterances are clearly audible and reaches the scene of occurrence while the incident is still in progress.

20. Turning to the present case, it can be seen that the first incident took place at the vasti of the complainant. Recitals of the complaint, however, do not refer to the presence of any member of the public. Considering the recitals of F.I.R. that the petitioner and his brother Haribhau were insulting the complainant by loudly shouting from their vasti, it can be seen that the element requiring presence of members of public is not disclosed by the allegations. As the condition, that the offence should have been committed within public view, is not satisfied, contention of learned Counsel for the petitioner, that the offence punishable under Section 3(1)(x) of SC and ST Act could not have been registered, will have to be sustained. In this view of the matter, the petition is allowed and the Rule is made absolute in terms of prayer clause (B) with no order as to costs.

Application allowed,