Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 644 (KER)

Binoy v. State of Kerala

2000-12-06

M.R.HARIHARAN NAIR

body2000
Judgment :- M.R. Hariharan Nair, J. The challenge is with regard to the charges framed by the Special Court for the trial of offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Ernakulam, against the revision petitioners, who are the accused which include the following: "5. That you, Al, a member of a non-scheduled caste, on the same day, time and place and during the course of the same transaction, with intent to humiliate and insult CW1, a member of 'the Scheduled Caste in public view, called CW 1 by caste name" " and thereby committed an offence punishable under S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 31/1989 and with the cognizance of this court. 6. Finally, that you, A2, A3 and A4, members of non-scheduled caste, in furtherance of the common intention Al, A2, A3 & A4 to humiliate CW1, a member of the Scheduled Caste in public view Al called CW1 It " and thereby you A2, A3 and A4 committed an offence punishable under S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read with S.54 IPC and within the cognizance of this Court." 2. According to Sri. Abraham Vakkanal, who appeared for the revision petitioners, the words quoted in the above charges do not apply to the caste of the complainant and hence there is no justification for the charge. 3. Sri. K. Gopalakrishna Kurup, the learned State Prosecutor, who appeared for the respondent, submitted that it is not necessary for sustaining a charge under S.3(1)(x) of the Act that reference should be made to the caste name of the complainant. According to him, if the complaint indicates that the accused used any word with intent to intimidate or humiliate a member of a Scheduled Caste or a Scheduled Tribe in a place within public view and if the accused is not himself a member of a Scheduled Caste and Scheduled Tribe, there is scope for sustaining the charge. 4. S.3(1)(x) of the Act states as follows: "3. 4. S.3(1)(x) of the Act states as follows: "3. Punishments for offences of atrocities- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, (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; 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". Sri. Kurup is therefore right in his submission that for sustaining a charge under S.3(1)(x) of the Act, there need not be any reference to the caste name of the victim and that the charge would be complete once it is alleged and proved that there was an intention to insult or intimidate the accused so as to humiliate him as a member of a Scheduled Caste or a Scheduled Tribe in a place within public view. 5. In the instant case, no doubt, the charge No. 5 framed by the Special Court refers to the fact that the address " " was with reference to the caste name, but a perusal of the First Information Statement given by the victim in this case shows that he had himself no such case. As far as relevant allegations are concerned, what he stated before the police was that Benoy, who belongs to his own place, approached him; caught hold of him by his hand and asked " "' and also beat him at his cheek. There is no specific mention in the statement that the victim was addressed as above or beaten with intent to intimidate or humiliate him for the reason that he is a member of a Scheduled Caste or a Scheduled Tribe. However, in the charge placed before the Special Court, the police stated that the aforesaid acts were aimed at humiliating the victim with the knowledge that he belongs to a Scheduled Caste. 6. Sri. Kurup has pointed out that the term " 1" allegedly used by the accused is not a word found in the dictionary though the word " ' finds a place, its meaning being a prostitute. 6. Sri. Kurup has pointed out that the term " 1" allegedly used by the accused is not a word found in the dictionary though the word " ' finds a place, its meaning being a prostitute. The said word also has nothing to do with the name of the complainant herein, but as already mentioned, it is not necessary to sustain a charge under S.3(1)(x) of the Act that the word used must be with reference to the caste name of the victim. 7. This Court held in Abdulla v. State (1998 (1) KLT SN 67 at page 69) that though the aforesaid Act is an enactment to weed out the atrocities being inflicted on the mind and body of a particular sect of people, at the same time, it is also to be borne in mind that there is scope for false implication under the Act due to previous enmity already prevalent on some other ground and therefore the Courts must cautiously, carefully and thoroughly examine the allegations before fixing the criminal liability, bearing in mind the facts and there is scope for false implication and there is a minimum sentence also prescribed under the Act. 8. In Gobinda Das v. State of Orissa (2000 (1) KLJ (NOC) 43), the Apex Court had occasion to go into the question whether mere calling someone by his caste name would attract the offences under S.3(1)(x) of the Act? It was held that even if it is believed for the sake of arguments that the appellants had called PWs. 2 and 5 by their caste, they would not have intended to insult them in public view and that merely calling someone by his caste does not constitute an offence. It was further held that to attract the provisions of S.3 of the Act, it is necessary that it should be in a public place there public could view the incident and that in a case of this nature, the trial court should exercise ^ are and caution before holding an accused guilty of the charge, especially when the chances of falsely implicating the accused by persons in the authority cannot be ruled out. 9. 9. In view of the fact that the informant himself had no case in the First Information Statement that the aforesaid words were used either with reference to his caste name or that it was intended to humiliate him, the charge No. 5 framed by the Court may not be justified. However, it is unnecessary to pronounce finally on this aspect in view of the decision of the Apex Court in Gangula Ashok v. State ofAP (2000 (1) KLT 609) where it is found that a Special Court under the Act is essentially a Court of Sessions and it can take cognizance of the offence only when the case is committed to it by the Magistrate in accordance with the provisions of the Cr.P.C. In other words, a charge sheet cannot straightway be laid before the Special Court under the Act. The charge impugned in the revision is the one framed by the Special Court and the case reached that court without committal. In view of this position, the presentation of charge cannot be taken as valid and the Court charge is accordingly set aside in toto. In case the police charge filed before the learned Special Judge happens to be returned and represented before the Magistrate's Court having jurisdiction, the said court, while considering the aspect of committal will bear in mind the aspect discussed in the foregoing paragraphs of this order and decide, on a careful application of mind with reference to the actual grievance expressed in the First Information Statement, whether there is scope for framing a charge under S.3(1)(x) of the Act and whether a committal of the case is necessary in that regard. With the aforesaid observations, the revision is disposed of.