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2019 DIGILAW 209 (ORI)

Damodar Rout v. State Of Orissa

2019-03-13

A.K.MISHRA

body2019
JUDGMENT : A.K. Mishra, J. This judgment is to address both the above numbered cases filed under Section 482 Cr.P.C. for having preferred to quash the proceeding in G.R. Case No. 574 of 2010 corresponding to Kujanga P.S. Case No. 233 dated 21.08.2010 pending in the court of learned J.M.F.C., Kujang. 2. Facts are catalogued with precision as follows:- On 21.08.2010 one F.I.R, was lodged by one Manoj Kumar Bhoi to the effect that:- (extracted) “On 18.08.2010 Mr. Damodar Rout, Minister of Agriculture and Co-operation held one public meeting at Kujang Block Padia, who delivered speech accusing Mr. Upendranath Mallick, Additional District Magisitrate, Jagatsinghpur, Mr. Bishnu Charan Das, MLA, Jagatsinghpur and Mr. Bibhu Prasad Tarai, Member of the Parliament, Jagatsinghpur and others who belong to members of the scheduled caste. During his such delivery of speech he intentionally insulted the members of the scheduled caste and such speech was intended to humiliate the aforesaid persons as well as he had insulted entire people belonging to members of scheduled caste of the country as a whole by saying “Ebe amara ADM gotae Harijan. Jagatsinghpur Bidhayak Jane Harijan ebong amara MP Bibhu Tarai Harijana Talikare na lekhaichi. Emane misi mo birudhare lagichhi”. This statement of Mr. Rout degraded the dignity of human being aspersing casteism. The statement creates disharmony between different classes of peoples and incites clash amongst members of scheduled caste and other castes of the society. I am humiliated by such accusation of my caste and such statement creates hatred to the members of scheduled caste. I therefore, pray that the matter be investigated and necessary action be taken against Mr. Damodar Rout and punish him in accordance to law by prosecuting him in court of law.” (The vernacular portion of the above is translated into English as follows:- “Now our A.D.M. is one Harijan. The MLA, Jagatsinghpur is one Harijan and our M.P. Bibhu Tarai has entered his name in Harijan List. They have joined against me.”) 3. The said F.I.R. was registered as Kujanga P.S. Case No. 233 dated 21.08.2010 under Sec. 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (to be referred hereinafter as “SC/ST Act”) and investigation was ensued. 4. They have joined against me.”) 3. The said F.I.R. was registered as Kujanga P.S. Case No. 233 dated 21.08.2010 under Sec. 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (to be referred hereinafter as “SC/ST Act”) and investigation was ensued. 4. Crlmc No. 2544 of 2010 was filed by accused petitioner on 16.09.2010 praying to quash the F.I.R. On 29.10.2010 stay of further proceeding in G.R. Case No. 574 of 2010 pending before the learned J.M.F.C., Kujang was granted. On 23.2.2011 a clarification order was passed to the effect that “This direction does not in any manner prevent the investigation into the case.” 5. On 28.07.2011, CRLMC No.2410 of 2011 was filed for quashment of the cognizance order dated 08.07.2011 passed in that G.R. Case No. 574 of 2010 on the ground that taking of cognizance on 08.07.2011 of the offence under section. 3(1)(x) of the SC/ ST Act and issuing summons to the accused-petitioner was in violation of this Court's stay order dated 23.02.2011 in CRLMC No. 2544 of 2010. A report was called for from the learned J.M.F.C., Kujang vide order dated 27.03.2014 passed in CRLMC 2410 of 2011. Learned J.M.F.C., Kujang submitted his report vide letter No. 427 dated 07.04.2014. It is stated therein that “CSI, Kujang while presenting the record before me did not bring to my notice about the stay of proceeding for which the order for issuance of process was passed. However, after scanning the materials on record it is found that inadvertently the order for issuance of process was made.” 6. Mr. B.Ray, learned Senior Advocate did not challenge the report of the learned J.M.F.C., Kujang submitting that the mistake due to inadvertence may be accepted. Mr. D.Mishra, learned A.G.A. for the State and Mr. D. Panda, learned Senior Counsel for the informant did not dispute such mistake made by the learned J.M.F.C., Kujang. This Court accepts the act of learned J.M.F.C. as an unintended error in the record. But the act of the Court shall prejudice no one. (Actus curie neminem gravabit) Therefore, the order taking cognizance dtd.8.7.2011 in G.R. Case No. 574 of 2010 is treated as non-est. 7. This Court accepts the act of learned J.M.F.C. as an unintended error in the record. But the act of the Court shall prejudice no one. (Actus curie neminem gravabit) Therefore, the order taking cognizance dtd.8.7.2011 in G.R. Case No. 574 of 2010 is treated as non-est. 7. The point is now close to:- Whether the F.I.R. in Kujang P.S. Case No. 233 dated 21.08.2010 for offence under section 3(1)(x) of the SC/ST Act, corresponding to G.R. Case No. 574 of 2010 pending in the court of J.M.F.C., Kujang is to be quashed?. 8. In order to assail the above F.I.R., it is averred in the petition inter alia as follows:- (i) That the petitioner is a veteran politician of the State and is currently a MLA from Paradeep Constituency belonging to the ruling BJD party. The petitioner is presently working as Minister of Agriculture and Cooperation, Government of Orissa and is the Vice-President of the BJD party. (ii) That before adumbrating the facts of the case it is necessary to state that the district of Jagatsinghpur is a hot bed for politics between parties. Many a time false, fabricated, and motivated criminal cases are instituted against politicians to achieve political interests. In the present case, the petitioner being a current MLA and Minister in the Government, a criminal conspiracy has been foisted by his detractors to dislodge him from the Ministry as well as to jeopardize his political standing. (iii) That delving into the soul of the issue it is humbly submitted here that Harijan (Child of God) was a term used by Mahatma Gandhi for Dalits. The term can also be attributed to Dalits of Pakistan called the haris, who are a group of mud-hut builders. It is submitted here that Mahatma Gandhi said it was wrong to call people 'untouchable' and hence he called them 'Harijans', which means children of God. It is still in wide use especially in Gandhi's home state of Gujrat. (iv) That in the present case there is no justification to say that the words allegedly uttered by petitioner encouraged his audience to practice untouchability or that the complainant practiced untouchability. The scriber of the FIR/complainant was neither insulted nor attempted to be insulted on the ground of untouchability for which the provisions of Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not attracted. The scriber of the FIR/complainant was neither insulted nor attempted to be insulted on the ground of untouchability for which the provisions of Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not attracted. (v) That assuming, the petitioner uttered the words imputed to him by no stretch of imagination it can be concluded that by uttering those words the petitioner either insulted or attempted to insult the complainant or any member of the Scheduled Castes on the ground of untouchability or in any other manner. (vi) That if the FIR is read as a whole then it clearly appears that there was no intention for an attempt to insult the complainant or the members of the Scheduled Castes on the ground of untouchability. (vii) That the allegations as made out in the complaint if taken at their face value and accepted in their entirety, do not prima facie constitute the offence or make out a case against the petitioner. That a bare perusal of the FIR/complaint would show that no case under any of the criminal law is made out against the petitioner. 9. Mr. B. Ray, Learned Senior Advocate on behalf of the petitioner strenuously urged that the persons named to have been aggrieved were not present as revealed from the F.I.R. and there is no mention that accused-petitioner was not a member of the scheduled caste or scheduled tribe. Added to that, neither the word “Harijan” was intended to be used to insult anybody nor had any aggrieved named in the F.I.R. come forward to allege such insult, intimidation or humiliation. In such backdrop Mr. B.Ray, learned Senior Advocate submitted that when the F.I.R. itself does not disclose any offence and is found to have been lodged out of political hostility, the same should be quashed to prevent abuse of the process of the Court. In support of his contention learned counsel for the petitioner relied upon the decision reported in (1)- M.A. Kuttappan Vr. E. Krishnannayanar and Another, (2004) 4 SCC 231 : (2)- Kailash Gupta Vr. State & Anr., (2004) 1 OrissaLR 665 :(3)- Gorige Pentaiah Vr. State of A.P. & Ors., (2008) AIRSCW 6901, (4)- Asmathunnisa Vr. State of A. P., (2011) AIRSCW 2285: (5)- Anand Kumar Mohatta & Anr. Vr. State (Govt. E. Krishnannayanar and Another, (2004) 4 SCC 231 : (2)- Kailash Gupta Vr. State & Anr., (2004) 1 OrissaLR 665 :(3)- Gorige Pentaiah Vr. State of A.P. & Ors., (2008) AIRSCW 6901, (4)- Asmathunnisa Vr. State of A. P., (2011) AIRSCW 2285: (5)- Anand Kumar Mohatta & Anr. Vr. State (Govt. of NCT of Delhi) Department of Home & Anr., 2019 AIR SC 210 : 10. Per contra, learned A.G.A. Mr. D.Mishra for the State submitted that the speech of the accused-petitioner using word “Harijan” was nothing but intentional, to insult his political opponents and public officers belonging to the scheduled castes and as F.I.R. makes out offence, the same should not be quashed. He also referred to the letters of the Government of India Ministry Welfare O.M.-1205/14/90-SCD (R.L.Cell) dated 16.08.1990 and Government of India Ministry of Social Justice and Empowerment Department of Social Justice and Empowerment letter No. 17020/64/2010-SCD (R.L.Cell) dated 22.11.2012 to submit that “Government has issued direction, to ensure the non-use of the word “Harijan” not only in caste certificates but also otherwise.” He also relied upon a decision reported in Manju Devi Vr. Onkarjit Singh Ahluwalia alias Omkarjeet Singh & Others, (2017) 13 SCC 439 to contend that the word “Harijan” is nowadays used to insult and abuse and not to denote a caste but to humiliate someone. Accordingly, he submitted that the petitioner being a Minister was aware of the law but preferred to use the word “Harijan” in a manner as stated in the F.I.R. only to insult the people belonging to scheduled castes and scheduled tribes and thereby offence under Section 3(1)(x) of the SC/ST Act is rightly made out in the F.I.R. and the proceeding ignited from the F.I.R. should not be quashed. 11. Mr. D.Panda, learned senior counsel for the informant advanced his argument supporting the above contention of the learned Special Counsel for the State. To supplement, it is contended by him that on bare reading of the F.I.R. offence under Section 3(1)(x) of the SC/ST Act is prima facie made out and the same having already been investigated into, the proceeding should not be quashed. 12. Before proceeding further it may be noted that in course of argument on 22.02.2019 in CRLMC No.2410 of 2011, Mr. 12. Before proceeding further it may be noted that in course of argument on 22.02.2019 in CRLMC No.2410 of 2011, Mr. D.Mishra learned Additional Government Advocate took time to file text of the speech, but it could not be made available to the Court, by the time argument concluded on next date. 13. In M.A. Kuttappan case (supra) for the use of word “Harijan” in course of speech by the Chief Minister of the State, the Hon'ble Supreme Court held that:- “Assuming, Respondent No.1 uttered the words imputed to him, but no stretch of imagination it can be concluded that by uttering those words he either insulted or attempted to insult the appellant on the ground of untouchability.” The said M.A. Kuttappan decision has been relied upon by this Court in Kailash Gupta case (supra) where the remark to an employee that “he got service by virtue of a caste certificate” is found to have not attracted offence under section 3(1)(x) of the SC/ST Act, as there was no intention to insult the complainant on the ground of untouchability. In Gorige Pentaiah case (supra) their Lordships have stated in paragraph-9 that:- “In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused- appellant was not a member of the Scheduled Caste or a Schedule Tribe and he intentional insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. In the entire complaint, nowhere it is mentioned that the accused- appellant was not a member of the Scheduled Caste or a Schedule Tribe and he intentional insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.” In Asmathunnisa case (supra) their Lordships have stated in paragraph-10 that:- “ 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 persons is not present.” In Anand Kumar Mohatta case (supra) the Hon'ble Supreme Court has stated in paragraph-17 that:- “There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 Cr.P.C. even when the discharge application is pending with the trial court. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.” In Manju Devi case (supra) cited by learned Special Counsel for the State also relied upon by the learned counsel for the informant, while their Lordships refused to invoke Section 438 Cr.P.C. in view of Section 18 of the ST/SC Act have stated in paragraph-16 that:- “In the above context, it is now easy to understand the factual matrix of the case. The use of the word “Harijan”, “Dhobi”, etc. The use of the word “Harijan”, “Dhobi”, etc. is often used by people belonging to the so-called upper castes as a word of insult, abuse and derision. Calling a person by these names is nowadays an abusive language and is offensive. It is basically used nowadays not to denote a caste but to intentionally insult and humiliate someone. We, as a citizen of this country should always keep one thing in our mind and heart that no people or community should be today insulted or looked down upon, and nobody's feelings should be hurt.” 14. The F.I.R. in this case has been registered under Section 3(1)(x) of the SC/ST Act. The relevant portion of the said section reads as follows:- “3. Punisahments for offences of atrocities-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- xx xxx xx (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;” 15. From the reading of the F.I.R. what is recognizable at sight is that after three days of the occurrence it was filed. There is nothing in the F.I.R. that the persons named therein were present in such meeting. As per Asmathunnisa case (supra), “no offence is attracted if the person is not present”. There is also no mention in the F.I.R. that accused-appellant was not a member of the Scheduled Caste or Scheduled Tribe and thereby the ratio in Gorige Pentaiah case (supra) is attracted. What is stated in the Manju Devi case (supra) is that “the use of the word “Harijan”, “Dhobi” etc. is often used by people belonging to the so-called upper castes as a word of insult, abuse and derision.” The Government notification of the year, 2012 to ensure the non-use of the word “Harijan” is meant for official communication and transaction. 16. What is mentioned in the F.I.R. that Minister had used word “Harijan” in respect of ADM, MLA and M.P. but whether it was intended to insult, is still obscured? Despite direction, the full text of the speech was not made available to ascertain the textual intention of the petitioner. When the words are affected by public use, the hearer of the same should come forward to express his feeling. The text must be trusted and tasted by the feelings of the aggrieved. Despite direction, the full text of the speech was not made available to ascertain the textual intention of the petitioner. When the words are affected by public use, the hearer of the same should come forward to express his feeling. The text must be trusted and tasted by the feelings of the aggrieved. In such matter, the thing that counts is not what one believes to be insulting but what the aggrieved reasonably believes. 17. Words are innocents, they are vehicles of thought. A word may mean one thing in one context and another thing in another context. The speech alleged to have been made in the case at hand was extempore. In determining whether the unguarded words uttered by the petitioner had beyond the standard of the everyday believe and the habit, one should read the whole F.I.R. In doing so, it is found that the petitioner had not uttered word “Harijan” intentionally to insult anybody including informant. There is no need to mark the content of the F.I.R. by unvarying or a rigid line. It is enough to indicate that the word “Harijan” does not fall within the limit of offence under section 3(1)(x) of the SC/ST Act in the context it was used in course of a speech. 18. It is apt to quote the following by SRI AUROBINDO for the relevancy to the doubt debated in the case at hand:- “A doubt corroded even the means to think, Distrust was thrown upon Mind's instrument, All that it takes for reality's shining coin, Proved fact, fixed inference, deduction clear, Firm theory, assured significance” (Savitri by Sri Aurobindo, Twenty-first impression, Book-Two Conto- XIII, Verse-65, Page-284.) 19. If the words are innocents in them-selves and not intended derogatory to the named persons in the F.I.R., no third person can cast a meaning on it to bring within compartment of insult, intimidation and humiliation because he belongs to the same caste or class. 20. Tested in the touchstone of above parameter of law, the contents of the F.I.R. taken at their face value and accepted in its entirety do not constitute the offence under Section 3(1)(x) of the SC/ST Act. Consequently criminal proceeding in G.R. Case No. 574 of 2010 corresponding to Kujanga P.S. Case No. 233 dated 21.08.2010 pending in the court of J.M.F.C., Kujanga is quashed. 21. Consequently criminal proceeding in G.R. Case No. 574 of 2010 corresponding to Kujanga P.S. Case No. 233 dated 21.08.2010 pending in the court of J.M.F.C., Kujanga is quashed. 21. Accordingly, the CRLMC No.2410 of 2011 is disposed of in terms of observation made in para-6 of this judgment. 22. The CRLMC No. 2544 of 2010 is allowed.