It is well settled that for applicability of Sections 3(1)(r)/3(1)(s) of the SC/ST Act to a case, all the ingredients of the alleged offence are to be made out from the complaint: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 766 2021 BAIL APPLN. 781 2021 Date of Decision: 26.10.2021 IN THE MATTER OF: BAIL APPLN. 766 2021 SANJAY SINGH ..... Petitioner GOVT OF NCT OF DELHI ..... Respondent Through: Ms. Mandavi Pandey Advocate Through: Ms. Neelam Sharma APP for State with Inspector Anand Yadav & SI Suresh Kumar Meena P.S. New Usman Pur Mr. Vijay Kumar Goel Advocate for BAIL APPLN. 781 2021 SURAJ SINGH Through: Ms. Mandavi Pandey Advocate ..... Petitioner GOVT OF NCT OF DELHI ..... Respondent Through: Ms. Neelam Sharma APP for State with Inspector Anand Yadav & SI Suresh Kumar Meena P.S. New Usman Pur Mr. Vijay Kumar Goel Advocate for HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J.BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 The present bail applications have been filed under Section 438 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicants seeking anticipatory bail in FIR No. 05 2021 registered under Sections 3(1)(r) 3(1)(s) of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities) Act 1989and Section 506 IPC at Police Station New Usmanpur Delhi. Learned counsel for the applicants submits that while the applicant Sanjay Singh is the father the applicant Suraj Singh is his son. He submits that the applicants in the present case are falsely implicated on account of an underlying dispute with respect to dishonour of cheque. She further submits that while the initial cheque was for Rs.1 00 000 the complainant has altered the same by changing the figure from Rs.1 00 000 to Rs.4 00 000 . Learned counsel for the applicants has further relied on the decision in Prathvi Raj Chauhan v. Union of India and Others reported as 2020) 4 SCC 727 to submit that the anticipatory bail is maintainable in a case under the SC ST Act provided the ingredients of the offence are not made out on prima facie reading of the FIR. She further submits that in pursuance of grant of interim protection by this Court vide orders dated 17.03.2021 the applicants have joined the investigation. Lastly she submits that the applicants are not involved in any other case. Learned APP for the State duly assisted by learned counsel for the complainant has opposed the bail applications. She submits that as per the complaint casteist remarks were uttered in a place within public view as it has been stated by the complainant that the incident dated 05.10.2020 was witnessed by two independent persons namely Ravinder BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 Parshad Verma & Arun Sharma. She further submits that the casteist remarks were uttered in the presence of aforesaid two witnesses and the applicants are not entitled to the benefit of anticipatory bail. The Status Report has been placed on record. I have heard learned counsels for the parties and perused the material placed on record. Insofar as maintainability of an application under Section 438 Cr.P.C. in view of bar created by Section 18 of the SC ST Act is concerned suffice it to say that the Supreme Court in Prathvi Raj Chauhanhas held: “11. Concerning the applicability of provisions of Section 438 CrPC it shall not apply to the cases under the 1989 Act. However if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act the bar created by Sections 18 and 18 A(i) shall not apply. We have clarified this aspect while deciding the review petitions.” This view has been reiterated by a separate and concurring judgment of Hon’ble S. Ravindra Bhat J. in the following manner: “32. As far as the provision of Section 18 A and anticipatory bail is concerned the judgment of Mishra J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint the court has the inherent power to direct a pre arrest The present case is registered under Sections 3(1)(r) 3(1)(s) of the SC ST Act which read as under: “3. Punishments for offences of atrocities. Whoever not being a member of a Scheduled Caste or a Scheduled Tribe BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 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 s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view 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.” It is well settled that for applicability of Sections 3(1)(r) 3(1)(s) of the SC ST Act to a case all the ingredients of the alleged offence are to be made out from the complaint. Notably an offence under Section 3(1)(r) is not made out simply because the complainant is a member of a Scheduled Caste or a Scheduled Tribe. 11. The basic ingredients that need to be established in order to attract penalty under Section 3(1)(r) of the SC ST Act are intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe andin any place within ‘public view’. Similarly the basic ingredients in respect of Section 3(1)(s) of the SC ST Act are i) abusing of any member of Scheduled Caste or Scheduled Tribe by caste name andin any place within ‘public view’. 12. The word ‘public view’ has not been defined under the SC ST Act. But what is to be regarded as a ‘place within public view’ has come up for consideration in various decisions. In Asmathunnisa v. State of Andhra Pradesh represented by the Public Prosecutor High Court of Andhra Pradesh Hyderabad and Another reported as 11 SCC 259 it has been held that: BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 “9. The aforesaid paragraphs clearly mean that the words used are “in any place but within public view” which means that 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 if the person is not present.” 13. Prior to this decision a distinction had been drawn between the expressions ‘public place’ and ‘in any place within public view’ in Swaran Singh and Others v. State through Standing Counsel and Another reported as8 SCC 435 in the following terms: “28. It has been alleged in the FIR that Vinod Nagar the first informant was insulted by Appellants 2 and 3 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 was not in the public view. However if the offence is committed outside the building e.g. in 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 therethen 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 gaon sabha or an instrumentality of the State and not by private persons or private bodies.” 14. The view taken in Swaran Singh and Othershas been cited with approval in Hitesh Verma v. State of Uttarakhand and Another BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 reported as 10 SCC 710 wherein charge sheet against the accused was quashed to the extent of allegations under Section 3(1)(x) of the SC ST Act of the complainant as well as the two independent witnesses were collected. 17. During the course of submissions learned APP for the State on instructions has submitted that besides collecting the CDR and location details of the aforesaid persons the location details of the applicants were also collected. It was further submitted that all the aforesaid persons were using the SIM cards issued by the Jio service provider. The relevant portion of the Status Report reads as under: “Dated 05.10.2020 from 06.30 p.m.(18.30 Hrs.) to 07.00 p.m.(19.00 Hrs.). BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 A party B Party Cell ID Call In Call In VX SMS In Call In X 7 5 street no. 9 braham Puri A 19 Gali No. 2 Road Puri X 7 5 street no. 9 braham Puri Note: no by the BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 Call Out 24 JD xiaomi SMS In X 7 5 9 braham Puri X 7 5 street no. 9 braham Puri Dated 07.10.2020 at 02.00 p.m.A party Cell ID Cell ID Address 61 sec. C 93 Khasra No. 2 122 Sec. 405872023l 0 sec. C 93 Khasra No. 2 Main Road Pratap nagar Saboli C 93 Khasra No. 2 Main Road Pratap nagar Saboli Main Road Pratap BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 0 sec. 25 sec. Vipin Sharma X 7 5 62 sec. Vipin Sharma X 7 5 nagar Saboli Gali No. 11 village Saboli Delhi. 9 Puri Delhi. 9 Puri Delhi. 18. The Status Report also mentions that in order to find out the Cell ID details of the Tower installed near the house of the applicants the Investigating Officer had made a phone call from his own Jio mobile number and the same was found to be operating at the Tower installed at House No. 279 Gali No. 1 Bhagwati Gali Braham Puri Delhi. Though the location of the applicants was found at their own address however the location of the complainant as well as the aforesaid witnesses were not found at the house of the applicants. 19. On a perusal of the FIR and the CDR location details as mentioned in the Status Report and orally submitted prima facie it appears that on BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 05.10.2020 at the time of incident the location of the applicants and the complainant witnesses are at different Towers. Without commenting any further on the aspect which would be a matter of trial the interim protection granted to the applicants vide orders dated 17.03.2021 is made absolute and it is directed that in the event of arrest the applicants be released on anticipatory bail subject to them furnishing personal bond in the sum of ₹25 000 each with one surety each in the like amount to the satisfaction of the Arresting Officer Investigating Officer SHO of the concerned Police Station and also subject to the further following conditions: The applicants shall join the investigation as and when the concerned they are directed Investigating Officer. to do so by The applicants shall remain available on mobile numbers i.e. 7701884583 & 8287389418 respectively which they undertake to keep operational at all times during the period of trial. iii) The applicants shall not directly or indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence. In case of change of residential addresses contact details the applicants shall promptly inform the same to the concerned Investigating Officer SHO. v) The applicants shall regularly appear before the Trial Court as and when the charge sheet is filed against vi) The applicants shall not leave the NCT of Delhi without prior intimation to the concerned Investigating BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 20. The bail applications are disposed of in the above terms. 21. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case. JUDGE OCTOBER 26 2021 BAIL APPLN. 766 2021 & BAIL APPLN. 781 2021 

Summary: The basic ingredients that need to be established in order to attract penalty under Section 3(1)(r) of the SC/ST Act are – (i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within ‘public view’. Similarly, the basic ingredients in respect of Section 3(1)(s) of the SC/ST Act are – (i) abusing of any member of Scheduled Caste or Scheduled Tribe by caste name and (ii) in any place within ‘public view’ as upheld by the High Court of Delhi through the learned bench led by Justice Manoj Kumar Ohri in the case of Sanjay Singh v. Govt of NCT Of Delhi (BAIL APPLN. 766/2021) and  Suraj Singh v. Govt of NCT of Delhi (Bail Appln. 781/2021) Brief facts of the case are that the present bail applications have been filed under Section 438 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicants seeking anticipatory bail in FIR No. 05/2021 registered under Sections 3(1)(r)/3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act) and Section 506 IPC at Police Station New Usmanpur, Delhi. Learned counsel for the applicants submitted that while the applicant-Sanjay Singh is the father, the applicant-Suraj Singh is his son. The applicants in the present case are falsely implicated on account of an underlying dispute with respect to dishonour of cheque. She further submitted that while the initial cheque was for Rs.1,00,000/-, the complainant has altered the same by changing the figure from Rs.1,00,000/- to Rs.4,00,000/-. Learned APP for the State duly assisted by learned counsel for the complainant has opposed the bail applications. She submitted that as per the complaint, casteist remarks were uttered in a place within public view as it has been stated by the complainant that the incident dated 05.10.2020 was witnessed by two independent persons, namely Ravinder Parshad Verma &amp; Arun Sharma. She further submitted that the casteist remarks were uttered in the presence of aforesaid two witnesses and the applicants are not entitled to the benefit of anticipatory bail. After the perusal of facts and arguments by the learned counsels, the Hon’ble Court held, “Without commenting any further on the aspect which would be a matter of trial, the interim protection granted to the applicants vide orders dated 17.03.2021 is made absolute and it is directed that in the event of arrest, the applicants be released on anticipatory bail subject to them furnishing personal bond in the sum of ₹25,000/- each with one surety each. The bail applications are disposed of in the above terms.”