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2022 DIGILAW 102 (UTT)

Shubra P. Kandpal v. State of Uttarakhand

2022-05-10

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this petition is made to the cognizance order dated 08.02.2022, passed in Special Sessions Trial No. 01 of 2022, State vs. Dr. Subhra Kandpal, by the court of District and Sessions Judge/Special Judge, S.C. S.T. Act (for short “the case”) as well as the entire proceedings of the case. By the impugned order, the petitioner has been summoned to answer the accusations under Sections 504 and 506 IPC and Section 3(1)(r) and (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act”). 2. This case was heard on admission on 12.04.2022. On that date, the Court observed “Therefore, this Court is of the view that as far as offence under Sections 504 and 506 IPC is concerned, this is definitely a matter of evidence, which would require scrutiny.” The Court proceeded to hear the matter to the extent of applicability of the case under Section 3(1)(r)(s) of the Act. 3. The State as well as the private respondents are represented. Counter affidavits have been filed by the State and by the respondent no. 6. 4. Heard learned counsel for the parties and perused the record. 5. The case is based on a first information report lodged by the respondent nos. 2 to 6, against the petitioner, under Sections 389, 504, 506 IPC and Section 3(1)(r)(s) of the Act, at Police Station Haldwani, District Nainital. It is this FIR, in which, after investigation, charge-sheet has been submitted against the petitioner, which is the basis of the case. 6. Before arguments, as advanced, are to be noted the broad line of the factual aspects would help to appreciate the controversy. The petitioner is an Associate Professor (B.Ed.) in the Post Graduate College, Haldwani. The respondent no. 2, the informant is Principal of that College. Other private respondents (they are also informants) are also Assistant Professors in the same college. 7. Learned Senior counsel for the petitioner would submit that, in fact, the informants harassed the petitioner on multiple occasions, which were reported to the higher officers by the petitioner. When the things did not stop, the petitioner was compelled to file an FIR No. 506 of 2021, under Section 354-A IPC against the private respondents. It is thereafter, according to the petitioner, that FIR in the instant case was lodged by the informants against the petitioner. When the things did not stop, the petitioner was compelled to file an FIR No. 506 of 2021, under Section 354-A IPC against the private respondents. It is thereafter, according to the petitioner, that FIR in the instant case was lodged by the informants against the petitioner. Learned Senior Counsel also raised the following points in his submissions: (i) Instant case is counter blast of the FIR lodged by the petitioner. It is based on malice. (ii) The petitioner did not have any intention to commit any offence under the Act. There has been no intimidation or humiliation of the respondent no. 6. (iii) In fact, with regard to the dispute with the informants, when the petitioner visited the College, during a conversation, it is alleged that the caste coloured remarks were made by the petitioner. It is argued that it does not attract the case under any of the provisions of the Act. (iv) The reading of the FIR does not make out the case under any provision of the Act. (v) Even if, the statement of the informants or other witnesses, including the respondent no. 6 is considered, as recorded during investigation, it also does not make out any offence under the Act. 8. On the other hand, learned counsel appearing for the private respondents would submit that the offence under the Act is prima facie made out in the instant case. Learned counsel raised the following points in his arguments: (i) The petitioner used the caste coloured remarks to the respondent no. 6 in a public view, in the presence of other persons. (ii) The respondent no. 6 and other witnesses have categorically told it to the Investigating Officer (“IO”) that, in fact, the words “Neech and Domra” were used against the respondent no. 6. It is argued that it makes out a case under the provisions of the Act. (iii) The petitioner knew that the respondent no. 6 belongs to Tamta sub-caste, which is the prominent scheduled caste in the State of Uttarakhand. (iv) The petitioner, in the presence of other teachers uttered the words “Neech Jati” and “Domra” to the respondent no. 6 and it has been so uttered to humiliate, to castigate and to silence the respondent no. 6. The respondent no. 6, thereafter, in fact, maintained silence. 9. (iv) The petitioner, in the presence of other teachers uttered the words “Neech Jati” and “Domra” to the respondent no. 6 and it has been so uttered to humiliate, to castigate and to silence the respondent no. 6. The respondent no. 6, thereafter, in fact, maintained silence. 9. Learned counsel for the respondents would also submit that in the Almora, Gazetteer, Volume XXXV, by H.G. Walton, I.C.S. history of term “Dom” is given. Reference has been made to Gazetteer, page 96, in which, it is recorded that “the Doms are village monials. They rarely cultivate, and practically never hold land as zamindars. They do rarely use the term Dom in speaking with themselves but call themselves Tallijaati (low caste), or Bahar jaati (outcaste), or more frequently describe themselves by their occupational subdivisions.” 10. It is argued that it categorically reveals that, in fact, use of this word “Dom” was not used by the persons belonging to that community because this word has negative impact on them. It is argued that this utterance by the petitioner attracts the provisions of the Act. 11. Section 3(1)(r) and (s) of the Act is as follows: “3. Punishments for offences of atrocities: (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Caste or a Scheduled Tribe: (a)...................... (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.” 12. A bare reading of this provision makes it abundantly clear that it deals with the situation of insulting, intimidating or humiliating a member of scheduled caste, or abusing him in any public view. 13. The Court need not to reiterate the objectives of the Act. It has been enacted “to prevent the commission of atrocities to the members of Scheduled Castes and Scheduled Tribes, to provide for special courts and the exclusive special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith and incidental thereof.” The statement of objects and reasons of the Act makes these objectives more clear. 14. 14. During the course of argument, on behalf of the petitioner, reference has been made to the judgment in the case of Hitesh Verma vs. State of Uttarakhand and Another, (2020) 10 SCC 710 , to argue that, the cause for uttering the alleged caste coloured remark is not solely attributed to the fact that the respondent no. 6 belongs to a particular caste. Therefore, no offence under the Act is made out. 15. It may be noted that the allegations of insult and humiliation are against respondent no. 6, he according to the prosecution, belongs to scheduled caste category. It has not been disputed even by the petitioner. 16. In the case of Hitesh Verma (supra), the Hon’ble Supreme Court discussed the provisions of Section 3(1)(r) of the Act, particularly, as to what would be the ingredients to attract the provisions of this Act. In fact, in that case, there was a dispute with regard to land, when it is alleged that the utterances in terms of caste coloured remark was made against one of the parties to the dispute. In paragraphs 13, 18 and 22 of the judgment, the Hon’ble Supreme Court observed as hereunder: “13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste. 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because Respondent 2 was a Scheduled Caste since the property dispute was not on account of the fact that Respondent 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar any person to protect his rights by way of a procedure established by law.” (Emphasis supplied) 17. The Hon’ble Supreme Court categorically in the above judgment observed that “All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe.” 18. In the case of Dinesh alias Buddha vs. State of Rajasthan, (2006) 3 SCC 771 , the Hon’ble Supreme Court in a different context, where the question was with regard to Section 3(2)(v) of the Act, observed as hereunder: “15. In the case of Dinesh alias Buddha vs. State of Rajasthan, (2006) 3 SCC 771 , the Hon’ble Supreme Court in a different context, where the question was with regard to Section 3(2)(v) of the Act, observed as hereunder: “15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.” (Emphasis supplied) 19. In view of the settled legal position, the issue at hand is to be examined. According to the FIR lodged by the informant, on 19.12.2020, the petitioner misbehaved, abused the informants and threatened to implicate him in cases relating to sexual offences etc. According to the FIR, on 13.03.2021, the petitioner visited the college and told the informants except the respondent no. 2, the Principal that they had committed a mistake by writing a letter in support of the respondent no. 2 and threatened them to disassociate themselves with the dispute otherwise she would implicate them and she harassed the respondent no. 6 by caste coloured remarks. 20. In his statement given to the IO, the respondent no. 6 has stated that on 13.03.2021, when he along with other teachers were waiting to meet the Principal, the petitioner came out of the Principal’s Office and told them as to why they have been favouring the Principal and warned them to disassociate themselves, otherwise she would implicate them. 21. At it, according to respondent no. 6, he asked the petitioner as to why she is talking in that manner. According to the respondent no. 6, the petitioner told him “tum to ho hi neech, tumhe ab pata chalega.” In his subsequent statement given to IO, the respondent no. 6 Shri Suresh Tamta has stated that the petitioner used the words “Neech Jaati and Domra” for him. 22. According to the respondent no. 6, the petitioner told him “tum to ho hi neech, tumhe ab pata chalega.” In his subsequent statement given to IO, the respondent no. 6 Shri Suresh Tamta has stated that the petitioner used the words “Neech Jaati and Domra” for him. 22. At this stage, this Court cannot conduct the mini trial in the proceedings under Section 482 of the Code of Criminal Procedure, 1973. The matter has to be seen to the extent of prima facie disclosure of the offence, which is the main argument on behalf of the petitioner apart from mala-fide. There have been guidelines laid down by the Hon’ble Supreme Court in a catena of decisions. This Court does not intend to burden this judgment with the pronouncements. Suffice to say, if prima facie case is made out, generally interference is not warranted in these proceedings unless there are compelling circumstances to do so. 23. Here is a case in which it is argued that even if the prosecution case is accepted in its entirety, it does not make out a prima facie case. 24. The intention becomes relevant, in view of the judgment in the case of Hitesh Verma (supra). The dispute was with regard to the service related matters or allied issues of the petitioner with the respondent no. 2, who is one of the informants. The petitioner had earlier filed FIR against the Principal on the same date. The genesis of the dispute according to the FIR and the prosecution is that the petitioner wanted the other teachers to disassociate themselves from the dispute. The petitioner wanted that the other teachers should not favour the Principal. According to the prosecution case, this is what she warned the teachers, who are informants in this case also. At this stage, according to the prosecution, the respondent no. 6 told the petitioner as to why she is using such words, at which she used the word “neech.” In a subsequent statement, the respondent no. 6 would tell the IO that he was also abused with the word “domra.” 25. In view of the judgment in the case of Hitesh Verma (supra), the dispute did not arise only because the respondent no. 6 belongs to the scheduled caste category. The dispute was pre-existing. It was initially between the Principal of the College, who is respondent no. 2 and the petitioner. In view of the judgment in the case of Hitesh Verma (supra), the dispute did not arise only because the respondent no. 6 belongs to the scheduled caste category. The dispute was pre-existing. It was initially between the Principal of the College, who is respondent no. 2 and the petitioner. The petitioner had filed an FIR and the Principal as well as other teachers have also filed the FIR against the petitioner. In this context, allegedly such utterances were made. The allegations were not made only on account of the victim being a scheduled caste. Therefore, this Court is of the view that even if the prosecution case is accepted in its entirety, it does not even prima facie make out an offence under the Act and to that extent, the petition deserves to be allowed. 26. The petition is partly allowed. 27. Prima-facie offence under Section 3(1)(r) and (s) of the Act is not made out against the petitioner. Therefore, the case shall not proceed against her under Section 3(1)(r) and (s) of the Act. However, the case shall proceed against the petitioner for the offences punishable under Sections 504 and 506 IPC. 28. The impugned cognizance order dated 08.02.2022 is modified accordingly.