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2001 DIGILAW 1016 (MAD)

Victor Paul and another v. State

2001-09-05

R.BALASUBRAMANIAN

body2001
JUDGMENT: The appellants in this appeal stand convicted in S.C.No. 231 of 1992 on the file of the learned Sessions Judge, Madurai for the offence punishable under Sec. 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo one year rigorous imprisonment together with a fine of Rs.500 carrying a default sentence. Heard Mr.M. Ravindran, learned senior counsel appearing for the appellants and Mr.V. Jayaprakash Narayanan, learned Government Advocate appearing on the criminal side for the State. 2. The investigating agency had filed the final report directly before the Court of Sessions, thereby treating the Court of Sessions as the original Court empowered to take cognizance of the offence. But recently the Hon’ble Supreme Court of India held that the Court constituted under the Act cannot take cognizance of offences under the SC and ST (Prevention of Atrocities) Act directly without the case being committed to it. The case on hand had it’s origin in the year 1992 and no objection whatsoever had been taken before the learned trial Judge about the absence of power in it to take a cognizance of the offence directly. In a later judgment, the Hon’ble Supreme Court of India held that unless objections are taken at the earliest stage and if no prejudice is shown to have been caused to the accused on account of such taking cognizance, the judgment cannot be set aside on the sole ground of absence of power to take cognizance of the offence. This later judgment of the Hon’ble Supreme Court of India governs the fact situation in this case. In fact learned senior counsel appearing for the appellants would fairly state that he would not be in a position to press the point of absence of power in the Court of sessions to take cognizance of the offence directly. 3. The crux of the argument of the learned senior counsel for the appellants is that, to constitute an offence under Sec. 3(1)(x) of the Act, the prosecution must show that the accused intentionally insulted or intimidated with an intention to humiliate a member of a Scheduled Castes or Scheduled Tribes in any place within “public view”. 3. The crux of the argument of the learned senior counsel for the appellants is that, to constitute an offence under Sec. 3(1)(x) of the Act, the prosecution must show that the accused intentionally insulted or intimidated with an intention to humiliate a member of a Scheduled Castes or Scheduled Tribes in any place within “public view”. In elaborating this argument, the learned senior counsel would submit that, the persons insulted or intimidated, as provided for under the sub-section, should be, at the time of such insult or intimation, in any place within “public view”. In this case the said element is lacking and therefore the conviction cannot be sustained. Heard the learned Government Advocate on this point. 4. The word “public view” is not defined in the Act. The dictionary meaning of the word “public” is “Open to the people as a whole”. The dictionary meaning of the word “view” is vision or sight as from a particular position. Reading these two meanings together in the context of the words “public view”, it only means that the public should have viewed the incident irrespective of the place where the offence is committed. The offence may be in a public place within “public view” or in any other place within “public view”. In either situation the essential element that requires to be established is that it was in “public view”. The word “public view” in the Section is preceded by the words “in any place within”. Therefore, it is clear to my mind that insult or intimidation should be in a place within public view. There are a few judgments on this point and they are cited as hereunder: (a) In Karansingh v. State of Madhya Pradesh, (1992) 3 Crl.L.J. 3054, it was held as follows: “5. From the material on record in the case diary, further it cannot be said that the incident took place at place within public view. The words used in the provision are in place within”public view“and not in a”public place“. There is clearly a distinction between an incident taking place within, public view and incident taking place within public place. The incident took place at about 11.00 p.m. on the spot and what transpired between them has not been alleged to have taken place within public view. There is clearly a distinction between an incident taking place within, public view and incident taking place within public place. The incident took place at about 11.00 p.m. on the spot and what transpired between them has not been alleged to have taken place within public view. In these circumstances, it cannot be said that all the ingredients of offence under Sec. 3(1)(x) of the Atrocities Act have been made out.” (b) In E. Krishnan Nayanar v. M.A. Kuttappan, 1997 Crl.L.J. 2036, it has been held as follows: “18. As stated by me earlier the words used in Sub-sec.(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. In my view the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner.” In the above case, the insult or intimidation is stated to have been committed in a public meeting where the aggrieved persons were not present. (c) A similar question arose before the Karnataka High Court in the case reported in Chandra Poojari v. State of Karnataka, (1998)1 Crl.L.J. 53. The alleged incident in that a case had taken place in the chamber of the complainant, who was working as the commercial tax officer. The argument raised on behalf of the accused, that assuming the allegations are true, yet the occurrence having taken place in the chamber of the complainant, it cannot be said that the offence was committed in any place within “public view” was accepted, among other points. Relying upon an earlier unreported judgment of that Court in Criminal Petition No. 1449 of 1995, wherein it was held that, “it is also stated that all these words were uttered in the private chamber of the petitioner and not in public view and no other person was present“. On facts, it was found in the reported judgment that the complaint does not disclose that the occurrence had taken place in “public view”. (d) In the case reported in Goura Gobinda Das v. State of Orissa, (2000) 2 Crl.L.J. 1978, it has been held as follows: “8. On facts, it was found in the reported judgment that the complaint does not disclose that the occurrence had taken place in “public view”. (d) In the case reported in Goura Gobinda Das v. State of Orissa, (2000) 2 Crl.L.J. 1978, it has been held as follows: “8. In the present case both P.Ws.2 and 5 are silent regarding the presence of any member of public at the time of the alleged occurrence though P.W.5 has stated that some persons reached the spot when there was hurling of abuse by the appellants. Even if it is believed for the sake of argument that the appellants had called P.Ws.2 and 5 by their caste, they could not have intended to insult them in public view and merely calling someone by his caste does not constitute an offence. To attract the provisions of Sec. 3 of the Act, it is necessary that it should be in a place where public could view the incident. In a case of this nature, the trial Court should exercise care and caution before holding an accused guilty of the charge, especially when the chances of falsely implicating the accused by persons in authority cannot be ruled out.” Therefore, it is clear from the above case laws that the offence falling under Sec. 3(1)(x) of the Act should have been committed in any place within”public view” and if this element is absent, then the conviction cannot be sustained. 5. The following are the facts available in this case: “A-1 and A-2 borrowed a sum of Rs. 15,000 from P.W.2: P.W.2 had been demanding for repayment of the money: this issue was taken to the notice of one Babu, who is running a service oriented organisation called “Friends Service Association”. 5. The following are the facts available in this case: “A-1 and A-2 borrowed a sum of Rs. 15,000 from P.W.2: P.W.2 had been demanding for repayment of the money: this issue was taken to the notice of one Babu, who is running a service oriented organisation called “Friends Service Association”. On the date of occurrence, P.W.2, A-1 and A-2 were in the office of the said Babu; Babu was not available in the office; P.W.1 is working as the attender in that organisation; regarding repayment of the said amount, P.W.2 and the accused were quarrelling with each other in a high pitch in the office; P.W.1 told them that, "it is an office and if they want to quarrel they can go outside the office and quarrel", A-1 pulled P.W. 1 to the road holding his shirt and abusing him by his caste name, (it is proved that P.W.1 belongs to a Scheduled Caste) challenged him as to who will come for his support, if he is beaten up; when P.W.1 questioned the propriety of A-1 scolding him like that. A-1 by his caste name asked him what respect he demands: A-2 abused P.W. 1 by his caste name saying that because of the Government support, they are talking like that; P.W. 1 was very much insulted; he was treated like that in the middle of the road and one Raja and Nagarajan knew about the occurrence." Raja is not examined in this case and Nagarajan had been examined as P.W.3. Neither in Ex.P-1 nor in the oral evidence in chief of P.W.1, it is found stated that P.W.2 had also viewed the commission of the offence by the accused as against P.W. 1. The prosecution had examined P.Ws. 1 to 3 to speak about the occurrence proper. P.W.4 is the witness, who speaks to the preparation of the recovery mahazar. P.W. 5 is the Investigating Officer. Ex.P-1 is the complaint given by P.W. 1. 6. In view of the law laid down as referred to above, the prosecution should definitely establish that the offence was committed in any place within "public view. " It is no doubt true that in Ex.P-1 it is stated that the accused committed the offence against P.W.1 in a public place namely, the "road". 6. In view of the law laid down as referred to above, the prosecution should definitely establish that the offence was committed in any place within "public view. " It is no doubt true that in Ex.P-1 it is stated that the accused committed the offence against P.W.1 in a public place namely, the "road". To be more precise, it is stated in the complaint that when P.W.1 was abused by his caste name in the said place, many were present. It is further found mentioned in the complaint that persons by name Nagarajan (P.W.3), Raja (not examined) and several others separated the quarrelling people and they all know about the incident. Therefore this averment, as a mater of fact, must be established before the Court. I have already found that there is a conspicuous omission in the complaint about P.W.2 viewing the incident. Therefore with certain amount of caution, I perused the evidence of P.W.2 to find out whether she witnessed the occurrence. P.W.2 no where states in her evidence that from which place she saw the incident i.e., whether from inside the office of Babu she saw it or she also accompanied P.W.1, A-1 and A-2 to the road where she saw. P.W.5, the Sub-Inspector of Police would state that he examined P.W.2 on 29.8.1982 and recorded her statement. P.W.5 in his evidence had admitted that P.W.2 did not tell him during investigation that A-1 and A-2 abused P.W.1 by calling him as a "dog". P.W.2 had admitted in her evidence in cross that she knows Babu, who runs the service organisation called "Friends Service Association" for so many years. P.W.2 in her evidence would state that one Raja and Nagarajan separated the quarrelling people. As already stated, Nagarajan alone had been examined as P.W.3. She/P.W.2 no where states that any other public were also viewing the incident. She is positive in her evidence that besides Raja and Nagarajan referred to above, no public intervened or separated the quarrelling people and that she had not stated so when she was examined by the police during investigation. P.W.1 in his evidence had categorically stated that Raja and Nagarajan (P.W.3) know the occurrence. He had mentioned in his evidence that P.W.2 also witnessed the occurrence. In Ex.P-1 also there is an averment that Nagarajan (P.W.3) Raja and others separated the quarrelling people and they all know the occurrence. P.W.1 in his evidence had categorically stated that Raja and Nagarajan (P.W.3) know the occurrence. He had mentioned in his evidence that P.W.2 also witnessed the occurrence. In Ex.P-1 also there is an averment that Nagarajan (P.W.3) Raja and others separated the quarrelling people and they all know the occurrence. There is a conspicuous omission in his evidence that P.W.2 was also viewing the occurrence. Under these circumstances and in the light of the materials noted above, I am of the considered opinion that the evidence of P. W.2 does not pass the test of credibility and reliability. Therefore, I am not inclined to believe the oral evidence of P.W.2. 7. P.W.1 is employed as an attender and P.W.3 is employed as a clerk in the service organisation run by Babu. There is no averment in Ex.P-1 that P.W.3 was inside the office of Babu and on P.W.1 being pulled out to the road by A-1, he also followed them. P.W.2’s evidence also does not show the presence of P.W.3 inside the office on that day. She would further state that she is not aware where Raja and Nagarajan/P.W.3 inside the office on that day. She would further state that she is not aware where Raja and Nagarajan/P.W.2 were, when she was involved in the quarrel with the accused in the office of Babu. Her evidence shows that women working in the office of Babu did not protest in any manner regarding the above referred to quarrel. In her evidence in cross P.W.2 admits that Raja and Nagarajan/P.W.3 came there only when P.W.1 was taken to the road by the accused. Therefore it stands definitely established by the recitals in Ex.P-1 and the oral evidence of P.W.2 that P.W.3 was not in the office of Babu at all at any point of time and at best the oral evidence of P.W.2 would show that Babu arrived at the scene only when P.W. 1 and the accused were on the road. In the above context, I perused the evidence of P.W.3. Though he would state that he was inside the office on the evening of the day of occurrence, yet in view of the materials noted earlier in this paragraph, I am not prepared to believe the evidence of P.W.3 that he was also in the office on the evening of the day of occurrence. Though he would state that he was inside the office on the evening of the day of occurrence, yet in view of the materials noted earlier in this paragraph, I am not prepared to believe the evidence of P.W.3 that he was also in the office on the evening of the day of occurrence. In any event he is definitely an interested witness and therefore the Court expects corroboration to the oral evidence of P.Ws. 1 and 3 from independent witnesses, which is definitely lacking in this case. P.W.3’s evidence is to the effect that the passer-by in the road also jointed them in separating the quarrelling people. I have already noticed that P.W.2 had stated in her evidence that no other public intervened to separate the quarrelling people namely, P.W. 1 on the hand and A-1 and A-2 on the other hand. P.W.3 had been examined by the police only on the next day. This Court is fully aware that the place in which the offence is committed may be a public place by itself is open to "public view" or any other place which also should be open to "public view" I have already referred to that P.W.3 in his evidence in chief had not mentioned about the presence of any public in the place where the offence was committed while in his evidence in cross he had stated that the public also intervened thereby showing that the offence was committed in a place within "public view". P.W.3 had admitted in his evidence that he is not aware whether any of the residents of the street witnessed the occurrence. On the facts noticed above, I have a grave doubt about the presence of P.W.3 at the scene of occurrence, where the offence is stated to have been committed. 8. P.W.5 is the Sub-Inspector of Police. In his evidence in cross he had admitted that on registering the complaint in this case, he had been suspended temporarily and he resumed his work pursuant to a case filed by him in the High Court of Madras. He denies knowledge whether the accused had given any complaint against him regarding the present alleged occurrence. His evidence shows that on the day when he gave evidence, departmental enquiry was pending against him. He denies knowledge whether the accused had given any complaint against him regarding the present alleged occurrence. His evidence shows that on the day when he gave evidence, departmental enquiry was pending against him. When a suggestion was put to him that his suspension from service was in the context of the present complaint registered by him, he denied the same. But however, he would admit that the accused had given a complaint against him in the police station at Samayanallur and he had come to be suspended in that connection. Ex.D-1 had come to be marked on the side of the defence. It is the petition filed by one Mr.N. Venkataraman, Inspector of Police, C.B.C.I.D., Madurai, under Sec. 173(8) of the Code of Criminal Procedure for further investigation before the trial Court in the very same case. A reading of that petition shows the following: "3. There is evidence to show that Tr.Senni, Sub-Inspector of Police, PCR Unit who had reportedly registered the case in PCR Unit Cr.No.4/92 (Sec. 3(1) of Prevention of Atrocities (SC and ST) Act, 1989) on 28.8.1992, had secured the alleged accused. (1) Tr. Victor Paul, (2) Tmt.Lilly Victor Paul on 4.9.1992 and instead of taking them to the police station, he had taken them to the office of one Tr.Babu, who is inimical with the said accused with a view to enable him to seize the T.V. set and sewing machine and after obtaining their signatures in blank papers and let them off without arresting. Subsequently as Tmt.Lilly Victor Paul had lodged a complaint on 9.9.1992 at Samayanallur P.S. (vide Samayanallur P.S. Cr.No.466 of 1992), in which was referred as N.P. on 10.9.1992 against Tr. Babu and others, the S.I. of Police has chosen to arrest them on 11.9.1992. It is clearly seen that Tr.Seeni, S.I. of Police, PCR Unit had acted partially and with biased mind and the circumstances of registration of the case against Tmt.Lilly Victor Paul and Tr. Victor Paul is suspicious. Further, it is alleged that Tr. Victor Paul was not at Madurai on the alleged date of occurrence and this aspect was not probed into." "4. As this case requires an impartial and unbiased investigation, it has been ordered by the Inspector General Of Police (Crime), Madras-4 in Ref. No.C2.2327/22/93 dated 2.3.1993 to transfer the case to C.B.C.I.D., Madurai Unit for further investigation. Victor Paul was not at Madurai on the alleged date of occurrence and this aspect was not probed into." "4. As this case requires an impartial and unbiased investigation, it has been ordered by the Inspector General Of Police (Crime), Madras-4 in Ref. No.C2.2327/22/93 dated 2.3.1993 to transfer the case to C.B.C.I.D., Madurai Unit for further investigation. The case diary was received on 26.3.1993 and I took up further investigation in this case." But however, it is seen from the records that the very same Sub-Inspector of Police by name Mr. Seeni had been examined in this case as P.W.5. What order the learned trial Judge passed on Ex.D-1 is not placed before Court. Whether any further investigation was done at all and whether any new material was collected at all are not made known on record. Whatever it is, Ex.D-1 definitely creates a doubt in the very investigation done by P.W.5. In the context of the above materials, assuming P.W.1’s evidence shows that he had been abused by his caste name, yet his evidence shows that the said offence was viewed by Raja and Nagarajan (P.W.3). I have already disbelieved the oral evidence of P.W.3. P.W.1 also admits in his evidence that he did not tell the police during investigation that besides Raja and Nagarajan (P.W.3), the public also separated the quarrelling people. His evidence shows that the Sub-Inspector of Police (P.W.5) examined two persons from the public, who viewed the occurrence. But as already stated, none of them have been examined in Court. Therefore in my opinion the oral evidence of P.W.1 by itself does not show that the offence was committed in a place within "public view". The phrase used in the Section is "offence being committed in any place within public view". This definitely contemplates persons besides the victim also viewing the occurrence. I have already discussed the oral evidence of P.Ws.2 and 3 and arrived at the conclusion that their evidence cannot be accepted. This means there is no other evidence except the evidence of P.W. 1, alone, assuming it deserves acceptance, that he was insulted in a place within public view. In other words, there is no evidence to show that any public viewed the occurrence complained of in this case. This means there is no other evidence except the evidence of P.W. 1, alone, assuming it deserves acceptance, that he was insulted in a place within public view. In other words, there is no evidence to show that any public viewed the occurrence complained of in this case. The offence being committed in a place within "public view" is an essential requirement of the offence contemplated under Sec. 3(1)(x) of the Act referred to earlier and in the absence of the same, conviction of the accused cannot be sustained. Therefore I am inclined to hold that the prosecution had not made out its case beyond all reasonable doubt. Accordingly I acquit the accused of the offence referred to above. The appeal is allowed by setting aside the judgment under challenge. The fine amount, if any, paid by the accused shall be refunded to them. The bail bond, if any, executed by the accused shall stand terminated forthwith.