Babu Mathew v. State of Kerala and Others

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940 **Crl.MC.No. 5876 of 2014** CP 54/2014 of J.M.F.C.-II,THAMARASSERY PETITIONER/ACCUSED: BABU MATHEW S/O.MATHEW, KOORAPPILLIL HOUSE, KOOMBARA. PO,MARANJATTY,THAMARASSERY BY ADV.SRI.T.G.RAJENDRAN ## RESPONDENT/COMPLAINANT/STATE: 1. LIMU P.K S/O.KRISHNAN,PALAKULANGARA HOUSE, - KUMARANELLUR,THOTTAKKAD,KOZHIKODE 673 620 2. GIRIJA W/O.LIMU,RESIDING DO 3. SUB INSPECTOR OF POLICE MUKKOM POLICE STATION, 673 525 4. DEPUTY SUPERINTENDENT OF POLICE THAMARASSERY 673 526 5. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031. R2 BY ADV. SRI.K.SHIBILI NAHA R2 BY ADV. SRI.SAJU RAGHAVAN R 2 TO 5 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPLATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5876 of 2014 APPENDIX PETITIONER(S)' EXHIBITS ANNEXURE 1 COPY OF THE FINAL REPORT KS. TRUE COPY P.S. TO JUDGE **C.R.** ## **SHIRCY V.,J. ------------------------------------------------------** ## **Crl.M.C.No.5876 of 2014** ## **------------------------------------------------------** ## **Dated this the 20[th] day of June, 2018 ORDER** This petition under Section 482 of the Code of Criminal Procedure (herein after referred to as Cr.P.C.) has been preferred by the sole accused in C.P.No.54/2014 on the file of the Judicial 1[st] Class Magistrate Court-II, Thamarassery to quash the final report filed against him for having committed offences punishable under Sections 341,323,324 of the Indian Penal Code ('IPC' for short) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the SC/ST Prevention of Atrocities Act). The first respondent is the complainant. The second respondent is his wife (hereinafter referred to as the 'victim'). 2. The facts of the case in brief, as advanced by the CRMC 5876/2014 2 prosecution are that on 13.6.2014 at about 10.a.m while the defacto complainant was proceeding along with his ailing son to consult a Doctor, this petitioner/accused had wrongfully restrained him due to his enmity towards him as a result of the property dispute pending between them and assaulted him. When his wife rushed to the spot and tried to intervene to save him, the petitioner caught hold of her hair and torn off her dress with the intention to outrage her modesty. The petitioner who is not a member of Scheduled Caste or Scheduled Tribe attacked the defacto complainant and his wife with the knowledge that they are members of Scheduled Caste. Thereupon on the basis of the complaint lodged by the de facto complainant Crime No.430/2014 was registered on 13.06.2014 by the Police Thamarassery under Sections 341, 323, 324 and 354 of IPC. After investigation final report was filed deleting Section 354 IPC but incorporating Section 3(1)(xi) of the SC/ST Prevention of Atrocities Act. Aggrieved by the filing of CRMC 5876/2014 3 the final report under Section 3(1)(xi) of the SC/ST Prevention of Atrocities Act, after deleting 354 IPC, the instant petition for quashing the final report has been preferred by him. 3. Heard Sri.T.G.Rajendran, the learned counsel for the petitioner and Smt.M.K.Pushpalatha, the learned Public Prosecutor and perused the materials on record. 4. Mr.T.G Rajendran, the learned counsel for the petitioner emphatically contended that due to the pendency of the civil dispute between the parties they are on inimical terms. On 13.06.2014 when this petitioner was found plucking coconuts with the help of a coconut climber from the disputed property which is in his possession, the first respondent/de facto complainant questioned him and it resulted in a wordy altercation between them. But the petitioner has not committed any offence as alleged by the prosecution. In fact, he was falsely implicated in the case. He would further submit that the investigating agency was CRMC 5876/2014 4 right in deleting Section 354 of IPC but without materials on record, charged him under Section 3(1)(xi) of the SC/ST Prevention of Atrocities Act. The plea for quashing the final report was advanced mainly on that ground. 5. The second ground advanced by the learned counsel for the petitioner is that though no medical evidence is available, he has been charged under Sections 323 and 324 of IPC. So also there is no case for the witness that the petitioner had wrongfully restrained him, but he was charged for having committed offence under Section 341 of IPC. According to him, the above facts would indicate that the ingredients to attract offences under Sections 341,323 and 324 are also not made out. So in short, no materials are available to face trial, still final report has been filed. Hence the same is liable to be quashed . 6. Per contra, Smt.M.K.Pushpalatha the learned Public Prosecutor has opposed the application and submitted that this is a fit case which has to go for trial and the contentions CRMC 5876/2014 5 raised are merit less as well. In fact Section 354 of IPC was deleted since a special provision has been provided for the said offence under the special Act. Therefore, the argument advanced by the learned Counsel for the petitioner that he is entitled to the relief of quashing the final report is only to be rejected, is the stand taken by the learned Public Prosecutor . 7. Law is well settled that the statutory power under Section 482 of Code of Criminal Procedure has to be exercised judiciously, sparingly with great caution, care and circumspection. If only the court is fully convinced that the allegations are baseless and no purpose will be served if the prosecution is allowed to continue with the investigation or trial, quash the proceedings at the initial stage for the main reason that while exercising the said power, in fact the complainant is not allowed rather prevented from adducing evidence. Therefore, the said power can be exercised only to secure the ends of justice as well to prevent gross abuse of CRMC 5876/2014 6 process of any court and that too when it is found inevitable. It is also settled that even a defence of an accused though appears to be reasonable or probable should not be taken into consideration to exercise the inherent power of the High Court under Section 482 Cr.P.C. In short, when it appears that continuation of proceedings would tantamount to abuse of process of law, the inherent powers under Section 482 Cr.P.C can be exercised. A galaxy of decisions are there, rendered by the Hon'ble Supreme Court as well this High Court on the subject. 8. Bearing in mind the legal proposition of law as enunciated in _**Gian Singh v. State of Punjab and Another [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another [(2014) 6 SCC 466], Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others v. State of Gujarat and another (2018)1 SCC (Cr)1**_ etc. the issue involved has to be evaluated to find out whether the ends of justice would CRMC 5876/2014 7 justify the exercise of inherent jurisdiction. True that the FIR registered for the offence under Section 354 of IPC was deleted and a charge under 3 (1)(xi) of SC/ST Prevention of Atrocities Act was incorporated. The learned counsel for the petitioner submitted that Section 354 of IPC was deleted as it was found baseless and the allegation do not disclose any offence or even a prima facia case against the petitioner. The learned Public Prosecutor has assiduously argued on the behalf of the State that a perusal of the final report indicates that the petitioner has committed an offence coming under SC/ST Prevention of Atrocities Act and as there is specific provision to prosecute the petitioner in the special Act, for the offence alleged to have been committed by him, the approach of the prosecution will be different and the prosecution could very well try the petitioner for the serious offence committed by him. 9. For appreciating the main thrust of the contention raised by the petitioner, I find it convenient to refer to CRMC 5876/2014 8 Section 354 of IPC which reads as under: “354. **Assault or criminal force to woman with intent to outrage her modesty.** - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.]” The essential ingredients to attract an offence under Section 354 are : - 1 . The assault must be on a woman 2. The accused must have used criminal force on her 3.The criminal force must have been used on the woman intending to outrage her modesty or knowing it to be likely that his act will thereby outrage her modesty 10. Section 3(1)(xi) of SC/ST Prevention of Atrocities Act reads as under : - “Section 3.(1) Whoever, not being a member of a CRMC 5876/2014 9 Scheduled Caste or a Scheduled Tribe- 3 (1) (xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty.” (The alleged incident was on 13.06.2014. Hence, the provisions of the Act before amendment are applicable) 11. The ingredients to attract an offence under Section 3(1)(xi) are also the same such as; 1. The assault must be on a woman 2. The accused must have used criminal force on her 3. Assault or use of criminal force must be with the intention to outrage her modesty or to cause dishonour to her. 4. The assault or criminal force was on a woman who is a member of Scheduled Caste or Scheduled Tribe. 12. On a reading of both Sections it is amply clear that the scope and object and the essential ingredients to attract CRMC 5876/2014 10 both the offences are one and the same, except the fact that Section 3(1)(xi) of SC/ST Prevention of Atrocities Act is attracted only if the victim is member of Scheduled Castes or Scheduled Tribes. SC/ST Prevention of Atrocities Act was enacted to prevent the commission of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Any kind of atrocity towards a member of Scheduled Castes and Scheduled Tribes for that reason will come under the purview of this special act and this act was enacted for the purpose of protecting and preventing atrocities against the members hailing from that community. It is well settled that a provision of a statute should be interpreted to meet the objects of the statute. Actually, the main object of the statute is to prevent atrocities towards the downtrodden members of Scheduled Castes and Tribes and to protect them to live with dignity and it indicates the legislative concern. Doubtless to say that this special statue was enacted as the provisions in the Indian Penal Code was CRMC 5876/2014 11 found inadequate and insufficient to deter crimes against the members of Scheduled Castes and Scheduled Tribes. When assault is on a woman who is a member of Scheduled Castes or Scheduled Tribes by a man who is not a member of Scheduled Caste or Tribe with the knowledge about her community and with the intention to outrage her modesty the offence will fall under the provisions of this special enactment . 13. At this juncture it is relevant to take note of Section (2)(a) of SC/ST Prevention of Atrocities Act “atrocity” means an offence punishable under Section 3 of SC/ST Prevention of Atrocities Act **.** As per section 2(ec) “victim” means any individual who falls within the definition of the “Scheduled Castes and Scheduled Tribes” under clause (c) of sub-section (1) of section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and CRMC 5876/2014 12 includes his relatives, legal guardian and legal heirs; 14. Definitely, mere assault on a woman does not constitute an offence under section 3 (1)(xi) of SC/ST Prevention of Atrocities Act or under Section 354 of IPC. Here, the question to be looked into is whether the petitioner committed offence which would come under the provisions of SC/ST Prevention of Atrocities Act. An offence under section 3 (1)(xi) is attracted when a man intentionally or knowingly did any act to dishonour or outrage the modesty of a woman. The word 'modesty' is not defined in the code or in SC/ST Prevention of Atrocities Act. So what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. Therefore, any indecent act which is done to lower the dignity of a woman or any indecent thing done against her wish in connection with sex amounts to outrage her modesty. The culpable intention of the accused to cause any thing adverse to the dignity of woman is the crux of the CRMC 5876/2014 13 matter. 15 **.** According to Oxford Advanced Learner's dictionary the word 'Modesty' means 'the action of behaving or dressing so that you do not show your body or attract sexual attention'. 'Outrage' means 'an act or event that is violent, cruel or very wrong and that shocks people or makes them very angry'. Like that 'dishonour' means 'a loss of honour or respect because you have done something immoral or unacceptable'. 16. Therefore, the crux of both Sections (354 of IPC and section 3(1)(xi) of SC/ST Prevention of Atrocities Act) is the culpable intention or knowledge of the accused and use of criminal force on the woman to do some thing immoral or unacceptable. When a person do any immoral activity or any act which may cause dishonour to a lady or which is not acceptable to her, it would come within the ambit of this provision. When a particular provision is provided under the Special Act for a particular offence it is not necessary to CRMC 5876/2014 14 charge the accused for the very same offence under the Indian Penal Code and a reading of both, makes it explicitly clear that the essential ingredients to attract the offences in the Indian Penal Code and in SC/ST Prevention of Atrocities Act are one and the same and the only difference is that Section 3 (1)(xi) of SC/ST Prevention of Atrocities Act is attracted when the victim is a member of Scheduled Caste or Scheduled Tribe. So deleting Section 354 of IPC in the final report does not mean that no offence to attract an offence under Section 3(1)(xi) of the SC/ST Prevention of Atrocities Act was committed by the petitioner/accused. 17. Therefore, deleting a provision in the Indian Penal Code and substituting the very same provision provided in the special enactment cannot be taken as a ground to conclude that no offence is attracted. Moreso, at this stage it is not possible to infer that prima facie no offence has been committed by this petitioner so as to justify in CRMC 5876/2014 15 quashing the proceedings in exercise of powers under Section 482 Cr.P.C. 18. It is further argued by the learned counsel for the petitioner that no medical/wound certificate is produced to show that the witnesses sustained injuries in the alleged attack by the petitioner and hence allegations levelled against him are false. Whether the allegations are worth reliable or not have to be tested during trial while crossexamining the witnesses concerned. 19. Of course, the Honourable Supreme Court recently in _**Subhash Kashinath Mahajan (Dr.) v. State of Maharashtra and Another (2018 (2) KHC 2007)**_ observed in paragraph 67 as innocent citizens are termed as accused, which is not intended by the legislature. The Legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. Considering the nature of the allegation leveled against the petitioner a full-fledged trial of the case, appears to be CRMC 5876/2014 16 inevitable to ascertain whether the offence alleged will fall within the scope of Section 3(1)(xi) SC/ST Prevention of Atrocities Act. 20. It is submitted by the learned counsel for the petitioner that the 1[st] Class Magistrate Court II Thamarassery where the final report has been filed has no jurisdiction to take cognizance of the offence and since no special court as specified under Section 14 of the Act has been constituted in Kozhikode District, the final report ought to have been filed before the Principal Sessions Court. In fact no special court has been established in Kozhikode. Hence the learned Judicial First Class Magistrate Court, II Thamarassery has jurisdiction to take cognizance of the offence and commit the case to the Principal Sessions Court, Kozhikode for trial. In view of the above and for the reasons stated herein above, this petition is dismissed. The observations in this order are made only for the purpose of disposal of this CRMC 5876/2014 17 petition. All contentions available to the petitioner are left open which may be gone into by the trial court. **Sd/SHIRCY.V JUDGE** smm TRUE COPY P.S. TO JUDGE