IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.11401-M of 2010 Date of Decision:9.12.2010 Kamlesh Rani and another .... Petitioners Versus State of Punjab and another .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Sandeep Ahalawat, Advocate for the petitioners. Mr. Munish Kumar, A.A.G. Punjab. Mr. M.S. Bedi, Sr. Advocate with Mr. Anil Joshi, Advocate for respondent No.2. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J. The present petition has been filed under Section 482 Cr.P.C. for quashing of FIR No.51 dated 5.4.2010 registered under Sections 186/353 IPC and under Section 3(1) (X)/3(1)(II) of Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989 at Police Station Qadian District Gurdaspur. Learned counsel for the petitioners contends that Smt. Balwinder Kaur President of Municipal Committee Qadian belongs to Akali Dal (Badal Group) and on 5.4.2010, meeting for passing of budget committee was convened. At about 3 PM eleven members of Municipal Council had submitted no confidence motion against the complainant. The total strength of Municipal Committee is fifteen. The no confidence motion was received by E.O. Under his signature. He had given time for voting also. The President of Municipal committee i.e. complainant was in Crl. M. No.11401-M of 2010 -2- minority and as such there was no way out for her to save her presidentship. It is for this reason that she immediately left the office and got the present false case registered. Thus, the present FIR is nothing but counter blast to no confidence motion moved against her. The present FIR has been lodged for oblique purposes by misusing the process of law. It is further contended that no offence under Section SC/ST Act is made out against the petitioners as the allegations that the petitioners abused the complainant in the name of caste, are stated to be at that time when no one from the public was present. The others entered when the accused had already abused the complainant in the name of caste. Since, nothing has been said in the presence of public or within public view, offence under Section SC/ST Act is not made out. Learned counsel for the respondent while vehemently opposing the present petition contending that a perusal of the FIR shows that the occurrence had taken place in public view in the presence of the husband of the complainant namely Deepak Nath as well as Subeg Singh son of Balbir Singh. Further, respondent belongs to Balmiki Caste and she had also contested from the SC Ward. Thus, it was well within the knowledge of the petitioner, who is also a member of the Municipal Council, Qadian, that respondent belongs to the said caste. As such, all the ingredients of the offence are made out. Further, respondent was performing his official duties. Thus, the ingredient of Section 186/353 IPC are also made out. Reference was made to the proceedings R-2/1 which have been placed on record. The said proceedings clearly show that there was nothing regarding no confidence motion against the answering respondent on the said date. Heard. Crl. M. No.11401-M of 2010 -3- Thus, the only question to be decided by this Court at this stage is as to whether the offence under Sections 186/353 IPC and under Section 3(1) (X)/3(1)(II) of Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989 are made out or not. The facts in short are that a case FIR No.51 dated 5.4.2010 under Section 186/353 IPC and under Section 3(i)(X)/3(i)(ii) of Schedule Caste and Scheduled Tribes Prevention of Atrociteis Act, 1989 Police Station Qadian was registered on the statement of Balwinder Kaur President Municipal Council Qadian w/o Deepak Nath r/o Near Julka Rice Mills Qadian aged about 55/56 years. As per the allegation in the FIR, Balwinder Kaur is president of Municipal Council. On. 5.4.2010 at about 3 P.M. they had kept a meeting for passing Annual Budget. At about 3 PM, Balwinder Kaur alongwith her husband Shri Deepak Nath came to the office of Municipal Council in their Maruti Van. After entering her office, Balwinder Kaur again went towards the maruti van for taking her purse which had been left in the van. When she reached in the hall room of the office, then from front Kamesh Rani M.C. Municipal Council Quadian alongwith her husband Tilak Raj entered the said hall. On seeing Balwinder Kaur, Kamlesh Rani called her “Churi” and s tated that she will remove her from the said chair of president and she will her self sit on the chair. Her husband Tilak Raj further yelled that people of her caste should be made to sit on the floor. Her husband Deepak Nath on hearing noise, came in the hall alongwith Subeg Singh son of Balbir Singh caste Jat r/o Civil Lines, Qadian. Mother Hardeep Kaur, who is a counsilor Municipal Counsil, Qadian, also came there. In their presence, Tilak Raj and his wife Kamlesh Rani pounced upon her. They tore her clothes with the intention to insult Crl. M. No.11401-M of 2010 -4- her and abused in the name of her caste. It is apt to reproduce the relevant provisions of Section 3(1)(x) of the Act, which read as under:- “3. Punishment for offences of atrocities:- (1) Whoever, no being a member of a Scheduled Caste or a Scheduled Tribe, (i) to (ix) x x x x x (x) Intentionally insults or intimidates with intent to humiliate a member of a scheduled Caste or a Scheduled Tribe in any place within public view; (xi) to (xv) x x x x x shall be punishable with imprisonment of a term which shall not be less than six months but which may extent to five years with fine.” A reading of the above provisions would clearly show that in order to bring the case within the ambit of Section 13(1) (x) of the Act, the following ingredients must subsist:- A) the act attributed should amount intentional insult or intimidation; B) it should be done with intent to humiliate; C) it should be directed against a member of a Scheduled Caste or a Scheduled Tribe; D) the action attributed should have taken place in public view. In order to prove that the offence is made out or not, the contention raised by the learned counsel for the petitioner was that the alleged offence was not commited “within the public view”. Single Bench of Andhra Pradesh High Court in the case of Crl. M. No.11401-M of 2010 -5- Golugiri Ramakrishna Reddy v. State of A.P. 2005(4) RCR (Criminal) 638 examined the purport of the phrase “in a place within the public view” and observed in paras 8 to 10 as under: “8. The term 'public view' is not defined in the Act. In English language 'public' is a term which is used both as a noun as well as an adjective attributing something to a noun. The people in the community at large are compendiously called the 'public'. In contra-distinction with the term 'private', the term 'public' gives different meaning which is concept of plurality. For instance, private purpose is distinguished from public purpose, which means that if some thing is done in the interest of the larger body of community, it is for public purpose. 9. In Words and Phrases, (Vol. 35 Permanent Edition, by West Publishing Company) the term “public place” is defined in various ways: A public place is a place where the public has a right to go and be. Public place is one attended by public for business, entertainment or similar reasons. A “public place” is a place where the public generally are permitted to assemble. In a prosecution for distributing a public assemblage, an instruction was given that a public place is any place at which people assemble, or to which people commonly resort for the purposes of business, amusement, recreation, or other Crl. M. No.11401-M of 2010 -6- lawful purpose. 10. Section 12 of the Indian Penal Code, 1860, defines the word 'public' as to mean' to include any class of the public or any community'. Therefore, the phrase' in a place within the public view' may be taken as a place where ordinarily the public visit for some purpose or other than with uninterrupted regularity through not continuously. Any place where a Government office is located, any market, a place of public entertainment and the like, where people are expected to go and are invited is a place 'within the public view'. An office or an office room where the head of the office sits is also a place within the public view but the private ante chamber of such officer cannot be treated as a place within the public view because except the personal servants of the officer, nobody can enter the private chambers. Similarly, an officer's house is not a place within the public view. If a person opens any shop-be it for selling services or be it for selling feed for prawn culture; he opens such a shop with an implied invitation to the public to visit the shop for purchasing the feed sold, such a shop must be given a public character and is certainly a place within public view.” This Court in the case of Chander Kalan v. Rameshwar and others 2010 (4) RCR (Criminal) while relying upon the judgement of Apex Court rendered in the case of Swarn Singh and others v. State through Standing counsel & another 2008(4) RCR (Crl.) 74 refused to quash the Crl. M. No.11401-M of 2010 -7- proceedings as the occurrence had taken place near the gate of the school, which was a public place and observed in paras 17 and 18 as under: “17. The occurrence had taken place near the gate of the school and hence, it cannot be said that the same was not a public place or the same was not in a public view. Occurrence was witnessed by some other villagers who also appeared and deposed before learned Magistrate corrobrating the version of the complainant. 18. Hon'ble Apex Court in Swarn Singh and others v. State through Standing counsel & another 2008 (4) RCR (Crl.) 74, observed that calling a member of the scheduled caste “chamar” with intent to insult or humiliate him even inside a building but in the presence of some members of public, would be an offence, since it is in the public view. Learned Apex Court observed as under:- “24. In our opinion, calling a member of the Scheduled Caste “Chamar” with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1) (x) of the Act. Whether there was intent to insult or humiliate by using the word “Chamar” will of course depend on the context in which it was used.” Learned counsel for the petitioner on the other hand has relied on the judgment of this Court rendered in the case of Kuldip Raj Mahajan v. Hukam Chand 2008(1) RCR (Criminal) 370 to state that the proceedings were quashed even though the said incident had occurred in an office. The same does not help the petitioners. A perusal of the said judgment shows Crl. M. No.11401-M of 2010 -8- that in the said case, the incident had taken place inside the bank when the public/persons were not present. Moreover, the complaint was held to be a result of mala fide. On same facts, FIR was also lodged. The matter was found to be false. Cancellation report had already been submitted. The Hon'ble Court, therefore, quashed the proceedings while coming to the conclusion that respondent being aware of the cancellation report had concealed the same from the Magistrate and the order summoning the accused had been passed without considering and referring to the said cancellation report. Thus, the FIR was quashed in the facts of that case. Whereas, in the present case, words about the caste of the respondent were uttered by Kamlesh Rani in the hall. The said hall is a public place. In fact, the words were so loud that it attracted the husband of the complainant Deepak Nath as well as Subeg Singh to rush inside the hall. The petitioners admittedly know that respondent No.2 belonged to the said caste. Thereafter, the petitioners misbehaved with the complainant by tearing her cloths and abusing her in the name of caste. Thus, it would be a matter of evidence as to whether the husband of the complainant and Deepak Nath rushed to the hall on hearing the noise or otherwise; whether they heard what was uttered by the petitioners; whether the said words were uttered knowing fully well that the answering respondent belongs to the Balmiki Caste; whether anything more was said in their presence or not. Whether the said complaint is false or mala fide is again a matter of evidence. The Court at this stage only requires to evaluate the FIR with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. The Court at this stage cannot enter into an inquiry or give a finding with Crl. M. No.11401-M of 2010 -9- respect to the falseness or genuineness or otherwise of the allegations in the FIR. In view of the above discussions, it cannot be said at this stage that no offence under Sections 186/353 IPC and under Section 3(1) (X)/3 (1)(II) of Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989 is made out. The same is matter of evidence. Accordingly, the present petition is dismissed being devoid of merit. 9.12.2010 ( NIRMALJIT KAUR ) rajeev JUDGE