1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1318 OF 2009 CRIMINAL APPLICATION NO.1318 OF 2009 CRIMINAL APPLICATION NO.1318 OF 2009 1. Shri Mahesh Sakharam Patole, 2. Shri Satyawan Aba Patole, 3. Shri Umesh Sadanand Kadam, 4. Shri Anil Babaji Kadam, .. Applicants Vs The State of Maharashtra, .. Respondent. Mrs. Preeti S.Walimbe, for the applicants. Mr. K.V.Saste, A.P.P, for the respondent-State. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 21.04.2009. DATED : 21.04.2009. DATED : 21.04.2009. P.C.: P.C.: P.C.: 1. Heard learned counsel for the applicants and learned A.P.P for the State. 2. The applicants are seeking anticipatory bail in C.R.No.3003 of 2009 of Devgad police station, Dist.Sindhudurg. The crime has been registered against the applicants for having allegedly committed an offence punishable under sections 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.1989 (for short "the Act") and sections 504,506 read with section 34 of the IPC. 3. Ms.Walimbe, learned counsel for the 2 2 2 applicants, at the outset, invited my attention to the FIR and submitted that by no stretch of imagination, the incident, as is disclosed therein, can be stated to have taken place within public view, as contemplated by section 3(1)(x) of the Act. She submitted that the incident allegedly occurred on 9.3.2009 at 3.30 am in the courtyard of the complainant’s house. This place may be visible to the public or within public view, but the incident was not viewed by the public. In other words, she submitted, from bare perusal of the FIR it is clear that no member of the "public" was present when the applicants allegedly abused the complainant on his caste with intent to humiliate him. She then submitted that since no offence under section 3(1)(x) of the Act is, prima facie, made out against the applicants, they are entitled for anticipatory bail, as prayed in this application. On the other hand, Mr Saste, learned APP, submitted that the family members of the complainant and their resident servant were present at the relevant time and their presence was sufficient to attract the provisions of section 3(1)(x) of the Act. 4. The complainant is a reporter and Editor of weekly "Kokani Danaka". It appears that on the eve of elections he published some news item regarding 3 3 3 alleged violation of the Code of Conduct by the applicants. That news item seems to have enraged the applicants. It is alleged that on 9.3.2009 at about 3.30 am, applicant nos 1 to 3, belonging to Maratha community, went to the house of the complainant and from his courtyard started abusing him calling a "Mhardya". On hearing the abuses the complainant came out of his house when his family members also followed him. When the complainant came out, it is alleged, they further abused him on his caste and demanded that the complaint lodged by him against the applicants and their group for the alleged violation of the Code of Conduct be withdrawn. It appears that the complainant had also lodged a complaint with the Tahasildar on 7.3.2009. Insofar as applicant no.4 is concerned, the complainant has stated that applicant nos 1 to 3 abused him at the instance of applicant no.4. Applicant no.4 was not present at the time of occurrence of the incident. 5. The offence, in the present case, occurred in the courtyard of the complainant’s house. It is not a public place. The provision of Section 3(1)(x) of the Act does not use the expression "public place", but instead the expression used is "in any place in any place in any place within public view". There is a clear distinction between 4 4 4 the two expressions. If a private place, such as the courtyard of a residential house, can be seen by someone from road or lane outside the boundary wall, and if the incident occurred at such a place is audible and visible to the people, it would, indubitably constitute an offence under section 3(1)(x) of the Act, it being a place within public view. In other words, a place of offence can be a private place, but if the remarks made, with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe, are audible and/or if members of public have viewed the incident, even if the incident occurred at a private place, such as the courtyard of a house, in my opinion, it would constitute an offence under section 3(1)(x) of the Act. It is evident from the Statement of Objects and Reasons of the Act that it was enacted to prevent indignities, humiliation and harassment to the members of SC/ST community. Therefore, while interpreting the expression "in any place within public view", one will have to hold that occurrence of the incident was viewed by the public. The expression "within public view" will have to be read to mean that the offence under section 3(1)(x) of the Act, should take place in view of the "public". If no member of the public has either seen the incident or heard the remarks, then even if the place 5 5 5 is a "public place" or a place "visible to the public", it would not attract the ingredients of the offence under section 3(1)(x) of the Act. 6. In the present case, it is alleged that the complainant was insulted/intimidated by applicant nos 1 to 3, by calling him a "Mhardya" at 3.30 am, when he was in the house and also after he came out of the house and was in the courtyard. As stated by him in the FIR, his family members and his resident servant were present when the incident occurred. The complainant has not stated that besides these persons any other member of the public was either present or heard the remarks. Therefore, the question was raised whether, in the facts of the present case, the provisions of section 3(1)(x) of the Act are attracted. 7 A mere presence of the family members, including resident servant, in my opinion, is not sufficient to constitute an offence under section 3(1)(x) of the Act. Family members or resident-servant cannot be treated as members of public. Members of the public should either be present when the offence is committed and even if the incident was not visible, atleast the utterances or 6 6 6 remarks should be audible to the members of public to constitute an offence under the Act. For instance, if the complainant was insulted/intimidated in a closed cabin, and if the remarks were clearly audible outside the cabin and if they were heard by the public, that would also constitute an offence under section 3(1)(x) of the Act. Similarly, if no member of public was present when the accused uttered the abuses at a public place, it would not constitute an offence. Therefore, to constitute an offence under section 3(1)(x) of the Act, the incident should occur in the presence of the public or atleast the utterances should be audible to the member/s of public. 8. In the context of the facts of the present case, the word "public" would include members of the public, already in the locality as residents as well as visitors from outside. The members of family or the resident-servant, as observed earlier, cannot be treated as members of public. The complainant in the FIR does not make any reference to either residents in the locality or to any visitors. The incident occurred at 3.30 am, when the entire locality was fact asleep, and perhaps that seems to be the reason why no person from or outside the locality was present. The learned APP has not placed any material on record to 7 7 7 show that the alleged abuses were heard by the neighbours or any other members of the public, nor has the complainant so stated in the FIR. 9. The FIR lodged by the complainant in the present case speaks about intimidation to him by applicant nos 1 to 3 referring him as "Mhardya". Insofar as applicant no.4 is concerned, he was not even present when the alleged incident occurred. The complainant in the FIR has simply expressed his doubt that applicant nos. 1 to 3 must have committed the offence at the instance of applicant no.4. Thus, from perusal of the FIR, treating the allegations to be correct, a criminal offence under section 3(1)(x), in my opinion, is prima facie not made out. In the circumstances, the applicants are entitled for anticipatory bail and hence the following order. . In the event of arrest, applicant nos 1 to 4 be released on bail in the sum of Rs.5000/- each with one or two sureties to make up the said amount subject to the conditions stipulated in sub-section (2) of Section 438 of Cr.P.C. Further, the applicants are directed to report to the concerned police station on every Wednesday and Saturday between 10 am and 11 am till 10.5.2009 and thereafter on every alternate 8 8 8 Saturday between 10 am and 11 am for a period of ninety days or till filing of the chargesheet, whichever is earlier. 10. While passing this order I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case uninfluenced by the observations made on merits in this order. . The application is disposed of. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)