Anil Kumar and Karthikeyan v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **Crl.MC.No.7036 OF 2018(H)** **SC 683/2017 OF DISTRICT & SESSIONS COURT, ALAPPUZHA CRIME NO.513/2017 OF Nooranadu Police Station , Alappuzha** ## **PETITIONERS/ACCUSED 1 & 2:** - **1 ANILKUMAR, AGED 44 YEARS, S/O KARTHIKEYAN, ADWAITH, PAZHANJIYOORKONAM MURI, NOORANADU VILLAGE, MAVELIKKARA TALUK.** - **2 KARTHIKEYAN, AGED 66 YEARS, S/O.NARAYANAN, MALAYIL PADEETTATHIL HOUSE, PATTOOR MURI, NOORANADU VILLAGE, MAVELIKKARA TALUK.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** - **2 UNNI AGED 25 YEARS S/O SIVANKUTTY MANNUSSERY HOUSE MANNUSSERIL COLONY BHAGAM NOORANADU VILLAGE ALAPPUZHA** **(*IS IMPLEADED AS ADDL.R2 AS PER ORDER DTS 7-11-2018 IN CRL.M.A NO.3/18 IN CRL.M.C NO.7036/2018)** **BY ADVS. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Appeal No. 7036 of 2018 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 7036 of 2018 -----------------------------------Dated this the 26[th ] day of November, 2020 ## **O R D E R** The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows: _“……..to pass an order, quashing all proceedings in Anx.H Final report in crime No.513/2017 of Nooranadu Police Station, Alaappuzha District, now pending as S.C N.683/2017 on the file of the Sessions Court, Alappuzha, to the extent it imposes offences under Sec.3(1)(r)(s) of the SC/ST (Prevention of Atrocities) Act by allowing this Crl.M.C.”_ 2. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioners/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing R1 State of Kerala. Though notice has been duly served on contesting respondent No.2 (defacto complainant), there is no appearance for that party. 3. The case set up by the petitioners in this Crl.M.C is broadly as follows: _The petitioners are falsely implicated as Accused Nos. 1 and 2 in Crime No. No. 513/2017 of Nooranadu Police Station, Alappuzha District. The said case was registered for offences under Sections 447, 323, 324, 326 and 294(b) read with 34 of the Indian Penal Code and_ 3 Crl.Appeal No. 7036 of 2018 _Sections 3(1)(r)(s) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act. The prosecution case is that on 20.04.2017 at 7 PM, the accused persons committed trespass into the house compound of the defacto complainant, uttered obscene words at the defacto complainant and his mother, voluntarily caused hurt to the mother of the complainant and caused grievous hurt with weapons to the defacto complainant, abused the defacto complainant and his mother by calling their caste name in order to humiliate them, since they belongs to Scheduled Caste community and thereby the accused persons have allegedly committed the offences punishable under the above Sections. In connection with the above incident, Annexure B counter was also registered against the defacto complainant and others as Crime No. 514/2017 of Nooranadu Police Station for the offences punishable under Sections 341, 323, 324 and 34 of the Indian Penal Code. The police after investigation has laid the final report in Annexure B case and the same is now pending before concerned jurisdictional Magistrate Court._ _In Annexure C order, this Court has directed the court below to examine the whole case records and to see whether the required elements of the offence under Sections 3 (1) (r) and (s) are there. Pursuant to Annexure C order, the 2[nd] petitioner surrendered before the investigating officer. The 2[nd] petitioner was produced before the Sessions Court, Alappuzha and he was remanded to judicial custody. The learned Sessions Court dismissed the bail application filed by the 2[nd] petitioner as per Annexure D order, wherein the court below has specifically found that "it is really doubtful whether the offence under Section 3 (1) (r) (s) of the SC/ST (Prevention of Atrocities) Act would_ Crl.Appeal No. 7036 of 2018 4 _get attracted". The police after investigation had laid Annexure H final report before the Sessions Court, Alappuzha, alleging offences under Sections 447, 323, 324, 326 and 294(b) read with 34 of the Indian Penal Code and Sections 3(1)(r)(s) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act. Annexure H final report filed by the investigating officer is arbitrary and illegal. The investigating officer blindly ignored and blatantly discarded the observations made by this Court in Annexure C order and the learned Sessions Court in Annexure D order. Hence it is clear that the investigating officer has not applied his mind and not collected any material to substantiate the allegation as against the petitioners. The incorporation of 3(1)(r)(s) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act is against the findings of this Court and the learned Sessions Court._ 4. It is in the light of these averments and contentions that the petitioners have filed the instant Crl.M.C with the aforementioned prayers, mainly to quash all proceedings in Anx.H Final report in crime No.513/2017 of Nooranadu Police Station, Alappuzha District, which has now led to the pendency of Sessions Case, S.C No.683/2017 on the file of the Sessions Court concerned, Alappuzha to the extent it alleges offences punishable under Sec.3(1)(r), (s) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. 5. Sri.Nireesh Mathew, learned counsel appearing for the petitioners has made submissions in tune with the pleadings in this 5 Crl.Appeal No. 7036 of 2018 case. In particularly, it is pointed out that it can be seen from the impugned Anx.A FIS that, except raising bald allegations that in the course of the incidents the accused persons have also held out the schedule cast name of the 2[nd] respondent defacto complainant etc, there is no case set up therein that the said utterance of the caste names have taken in a place within public view as contemplated in Sec.3(1)(r), (s) of the SC/ST (POA) Act, 1989. Further that this aspect of the matter has been crucially taken up cognizance by the Sessions Court in Anx.D order dated 31-05-2017, wherein it has been _inter alia_ observed that “it is really doubtful whether the offence under Sec.3(1)(r), (s) of the SC/ST (POA) Act, 1989 would get attracted”, etc. 6. Per contra, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent- State of Kerala would point out that, subsequently during the course of the investigation, it was disclosed that the abovesaid incident of assault carried out by the petitioners/accused on the defacto complainant on the day in question was directly witnessed by two immediate neighbours of the 2[nd] respondent defacto complainant, who are all residing within the 6 Crl.Appeal No. 7036 of 2018 close precincts thereof, etc, and that the said persons are two ladies residing in the immediate neighbourhood of the 2[nd] respondent, whose statements under Sec.161 Cr.PC has been duly recorded by the police in the course of the investigation and those persons are charge witnesses CW5 & CW6, about which mention is also made in Anx.A Final report given on internal pages 6 & 7 thereof. 7. The learned Prosecutor has also taken his attention to the relevant portions of the statements given by CW5 & CW6 collected in the abovesaid investigation under Sec.161 Cr.PC and has also brought to the notice of this Court the contents of the said statement, wherein it has been stated that CW5, who is a lady living in the neighbourhood, had seen the incident of assaults on the day in question as well as beating on the 2[nd] respondent with an iron rod by the accused and while doing so, the accused No.2 had held and uttered out the schedule caste name of the 2[nd] resp0ndent in a derogative manner by uttering out the caste to which he belonged (kurava, which is a schedule caste community), etc. Further that another lady of the neighbourhood has also sated to the same effect that, she had also seen the abovesaid incident and had also heard the Crl.Appeal No. 7036 of 2018 7 accused No.2 uttering out the caste name of the 2[nd] respondent in a derogative manner as aforesaid, etc. 8. Hence it is pointed out by the learned Public Prosecutor that the very nature of things, the incident is said to have happened on 2004-2017 at about 7.00 p.m and the FIS was registered on the next day (21-04-2017) at about 5.30 p.m and immediately after the heat and commotion of the incident, the defacto complainant may not have noted the details regarding his immediate neighbours also witnessing the said incident or would have omitted to say so and therefore the police after meticulous investigation could get those evidentiary aspects and has taken the statements of CWs. 5 & 6 as aforesaid. 9. Further the learned Prosecutor would urge that it is well settled that the First Information Report in respect of a crime cannot be seen as if it is an encyclopaedia of all factual aspects and that the 2[nd] respondent is a person, who belongs to the weaker and backward sections in the society and his mere omission that to say that CWs.5 & 6 had also witnessed the incident and had heard the same etc, immediately after the scuffle and commotion, cannot be treated as a material omission or introduction of a altogether new case, etc. 8 Crl.Appeal No. 7036 of 2018 10. Per contra, Sri.Nireesh Mathew, learned counsel appearing for the petitioner would point out that even going by the case of prosecution and the 2[nd] respondent CWs.5 & 6 are immediate neighbours of the 2[nd] respondent and the FIR has been registered about a day after the incident and ordinarily it only stands to reason and logic that if the abovesaid versions of CWs. 5 & 6 were actually true and that they had actually witnessed the incident and heard the utterance of the words, etc then the 2[nd] respondent could have easily brought those things to the notice of the police in the course of the registration of the FIR and this aspect has been even seriously taken out of by the Sessions Court in Anx.D Bail order dated 31-05-2017 and that therefore it is only prudent to infer that on knowing about this said serious discrepancy, the investigation agency has “cured the anomaly by introducing a new case” and it appears that CWs 5 & 6 have given statements to the police much after the incident and that these aspects would really raise a serious cloud of suspicion on the very believability and credibility of the abovesaid versions now put forwarded by the prosecution, which has to be seen as new story invented by the prosecution just to get over the serious Crl.Appeal No. 7036 of 2018 9 legal lacuna pointed out in Anx.D order etc. 11. Section 3(1)(r),(s) of Scheduled Caste/Scheduled Tribe Act reads as follows: _“3. Punishments for offences atrocities.—3 [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—_ _(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. Hence, Sri.Nireesh Mathew, learned counsel appearing for the petitioners would point out that this is a fit case, whereby this Court may exercise its inherent powers under Sec.482 of Cr.PC to quash the impugned criminal proceedings to the limited extent it alleges the involvement of the abovesaid offences in terms of Sec.3(1) (r), (s) of SC/ST (POA) Act. Further submissions are made by the petitioner that, it cannot be said that the place of the incident can be said to be a place in public view as understood in Ses.3(1)(r),(s) of SC/ST (POA) Act, etc. 13. To this, the learned Prosecutor would point out that, going by the prosecution case, defacto complainant and CW5 & CW6 are living in the immediate neighbourhood and they are living in the 10 Crl.Appeal No. 7036 of 2018 close precincts and there is nothing unnatural in CWs.5 & 6 witnessing the incident and hearing the utterance of the words and therefore, if the persons standing there could have easily witnessed the incidents and could have heard the utterance of words, then which has to be treated that the incidents have occurred “in a place within public view” as understood in Sec.3(1)(r),(s) of the abovesaid Act, etc. 14. After hearing both sides, this Court is of the considered view that the abovesaid main contentions urged by the petitioners regarding the untenability and lack of believability of the version put forward by the prosecution based on the statements given by CWs.5 & 6 etc, cannot be acted upon in a petition under Sec.482 of Cr.PC. The matter would require judicial evaluation after due appreciation of evidence and therefore those matters would essentially belong to the realm of evidence and it will be really hazardous for this Court to enter into that area, while exercising his jurisdiction essentially as a court of supervision and superintendence and as those matters would fall within the province of the trial court as it requires judicial evaluation after due appreciation of evidence on record. Crl.Appeal No. 7036 of 2018 11 15. Further the abovesaid aspects as to whether the witnessing of the incident and hearing of the words as aforestated cannot be said to be a place within public view as understood in Sec.3(1)(r),(s) of SC/ST (POA) Act, would also require meticulous and nuanced appreciation of evidence. In that regard, it will be profitable to refer to recent judgment of the Apex Court rendered on 05-11-2020 in the case in _**Hitesh Verma v** ._ _**State of Uttarakhand and another**_ in Crl.Appeal No.707/2020, where it has been held in paras 14 & 15 thereof as follows: _“14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an 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, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view._ _The Court held as under:_ _“28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) 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_ Crl.Appeal No. 7036 of 2018 12 _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 there (not merely relatives or friends) then 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 other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.”_ _15. As per the FIR, the allegations of abusing the informant were withinthe four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the chargesheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.”_ 16. Therefore the abovesaid rival contentions of both sides regarding the applicability or otherwise of the provisions contained in Sec.3(1)(r),(s) of the abovesaid Act are left open to be raised and decided in appropriate proceedings in the manner known to law before the trial court. 17. The upshot of the above discussion is that, it may not be 13 Crl.Appeal No. 7036 of 2018 right and proper for this Court to exercise the inherent extraordinary discretionary powers conferred on this Court under Sec.482 of Cr.PC, so as to quash the impugned criminal proceedings as sought for in this petition. All such issues are left open to be raised and decided in appropriate proceedings in the manner known to law before the trial court and if so raised, the same may be decided independently untrammelled and uninfluenced in any manner by the findings and observations made by this Court herein above in this order. This Court has been constrained to make the abovesaid observations and findings in this order only from the limited perspective to decide as to whether the inherent powers under Sec.482 of Cr.PC is to be exercised in the facts and circumstances of the case. With these observations and directions, the above Criminal Miscellaneous Case will stand dismissed. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.Appeal No. 7036 of 2018 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A: CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 21.04.2017 ALONG WITH THE FIRST INFORMATION STATEMENT OF THE DEFACTO COMPLAINANT. ANNEXURE B: TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT DATED 21.04.2017 ALONG WITH THE FIRST INFORMATION STATEMENT. ANNEXURE C: TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN B.A.NO.2977/2017 DATED 12.05.2017. ANNEXURE D: TRUE PHOTOCOPY OF THE ORDER PASSED BY THE SESSIONS COURT, ALAPPUZHA IN CRL.M.P.N.3088/2017 DATED 31.05.2017. ANNEXURE E: TRUE PHOTOCOPY OF THE ORDER PASSED BY THE SESSIONS COURT, ALAPPUZHA IN CRL.M.P.NO.3891/2017 DATED 20.07.2017. ANNEXURE F: TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN BAIL APPLICATION NO.3937/2017 DATED 09.06.2017. ANNEXURE G: TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN BAIL APPLICATION NO.5336/2017 DATED 28.07.2017. ANNEXURE H: PHOTOCOPY OF THE FINAL REPORT IN CRIME NO.513/2017 OF NOORANADU POLICE STATION DATED 25.09.2017.** ## **RESPONDENT'S/S EXHIBITS: NIL**