High Court of KeralaSingle Judge2016-09-30Discharged in respect of the offence under Sect...

Harish v. State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.3888 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Hon'ble Justice Anu Sivaraman
Judgment Date: 2016-09-30
Court Decision / Holding: The revision petition is allowed in part. The court discharges the revision petitioner in respect of the offence under Section 3(1)(X) of the Act; the petitioner shall face trial for the remaining offences before the appropriate court. Crl.R.P. is ordered accordingly. The interim stay on proceedings in S.C.No.262/09 of the Sessions Court, Pathanamthitta remains subsisting as per the court’s order.
Final Disposition: Discharged in respect of the offence under Section 3(1)(X) of the SC/ST (POA) Act; trial for the remaining offences to proceed; Crl.R.P. allowed in part.

Parties to the Case

Appellants / Petitioners

Harish, S/o Gangadhar

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Sreekumar
• Sri T. M. Jafarkhan

Counsels for Respondents

• Sri N.B. Sunilnath

Case Synopsis & Summary

Harish, the sole accused in S.C. No. 262/09 of the Sessions Court, Pathanamthitta, moves a criminal revision under Section 397 CrPC challenging a discharge order in respect of the offence under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 along with accompanying IPC offences (Sections 294(b), 451, 323 and 354). The incident, alleged to have occurred on 24 November 2007 at about 9:30 PM, involved the accused, a member of the Ezhava community, allegedly trespassing into the de facto complainant’s residence, insulting him by uttering his caste name and assaulting him, with the mother and sister also assaulted when they tried to intervene. The final report suggests the occurrence was not witnessed by any person and occurred near a public road. The petitioner had earlier moved Crl.M.C.959/2009 to quash; the High Court directed discharge proceedings under Section 227 CrPC, and the discharge petition was later rejected, giving rise to the present revision. The pivotal issue is whether the 3(1)(X) offence requires public view and presence of the de facto complainant. Relying on precedents interpreting the public-view requirement, the High Court concludes that the 3(1)(X) offence is not made out on the facts, discharges the petitioner for that offence, and directs trial for the remaining offences before the appropriate court. Interim stay already in place is clarified as subsisting.

Provisions of Law Cited

Section 294(b) IPCSection 451 IPCSection 323 IPCSection 354 IPCSection 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Section 227 CrPC

Submissions & Arguments

Contentions of Appellants / Petitioners

Learned counsel for the revision petitioner submitted that even if all the allegations are admitted, Section 3(1)(X) would not be attracted unless the insult or intimidation occurred in public view or in the presence of the de facto complainant. They pointed to Annexure I, which indicates no witness saw the incident and that the place of occurrence was near a public road, suggesting lack of public view. Relying on decisions such as Asmathunnisa v. State of A.P. and Another, E.K. Nayanar v. M.A. Kuttappan, and Sulochanan V.S. v. State of Kerala, they argued that the public-view element is essential. They also referred to Bhaskar P. Raju v. State of Telangana and Others to support the view that the insult must transpire in public view. They contended that the discharge under Section 3(1)(X) was unsustainably upheld and urged discharge under Section 227 CrPC for this offence, with remaining offences to proceed in trial.

Contentions of Respondents

The Public Prosecutor contended that the offence under Section 3(1)(X) could be attracted where insult or intimidation occurs in public view or in the presence of the de facto complainant, even if not observed by others, and that proximity to a public road would ordinarily afford public view. The prosecution argued that the informant and witnesses could have perceived the incident or intimidation at the residence, and that the absence of direct witness does not defeat the charge if circumstances show visibility to the complainant or others nearby. They emphasized the need to proceed with trial on the remaining offences and cautioned against lightly discharging one component of the case, arguing for proper consideration of the evidence and statutory purpose to safeguard the complainant’s dignity and ensure fair investigation.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Asmathunnisa v. State of A.P. and Another	2011 KHC 4297	Positive	Cited as supporting the requirement that the 3(1)(X) offence must be committed in public view or in the presence of the de facto complainant; relied upon to argue the public-view element.
E.K.Nayanar v. M.A.Kuttappan	1997 KHC 66	Positive	Cited for the principle that the public-view requirement is essential for attracting the 3(1)(X) offence.
Sulochanan V.S. and Others v. State of Kerala and Others	2012 KHC 2975	Positive	Cited to support the necessity of proving public-view presence for the 3(1)(X) offence.
Bhaskar P. Raju v. State of Telangana and Others	2015 KHC 3646	Positive	Hyderabad High Court decision cited to affirm that insult or intimidation must take place in public view for Section 3(1)(X) to be attracted.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** ## **Crl.Rev.Pet.No. 3888 of 2009 ( )** **---------------------------------** ## **S.C.NO.262/2009 of SESSIONS COURT, PATHANAMTHITTA DATED 19-10-2009** **REVISION PETITIONER(S)/ACCUSED: ----------------------------------------------------** **HARISH, S/O.GANGADHARAN, KESAVE NILAYAM, ARUVAPPULAM VILLAGE, KOZHENCHERRY TALUK.** **BY ADVS.SRI.S.SREEKUMAR SRI.T.M.JAFARKHAN** ## **RESPONDENT(S)/COMPLAINANT:** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.N.B.SUNILNATH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3009-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 3888 of 2009 ( ) ------------------------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **ANNEXURE I TRUE COPY OF FINAL REPORT FILED BY THE POLICE ANNEXURE II TRUE COPY OF THE JUDGMENT IN CRL.M.C.959/09 DATED 31.3.09 ANNEXURE III TRUE COPY OF ORDER IN M.P.NO.1264/09 DATED 19.10.2009** ## **RESPONDENT'S ANNEXURES** ## **NIL** **//True Copy//** **P.A. To Judge** **Bb** ## **ANU SIVARAMAN, J.** ......................................................... **Crl.R.P.No.3888 of 2009** ......................................................... **Dated this, the 30[th] day of September, 2016.** ## **O R D E R** This revision is filed at the instance of the sole accused in S.C.No.262/09 of the Sessions Court, Pathanamthitta. Offences alleged were under Sections 294(b), 451, 323 and 354 IPC read with Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). 2. It is submitted that the charge against the revision petitioner is that, on 24.11.2007 at 9.30 p.m., the petitioner, who belongs to the Ezhava community, had trespassed into the residential building of the _de facto_ complainant who belongs to a Scheduled Caste community and had called him by community name and assaulted him. It is further alleged that the mother and sister of the _de_ Crl.R.P.No.3888 of 2009 : 2 : _facto_ complainant attempted to interfere and they were also assaulted and thereby, the alleged offences were committed. The petitioner had earlier moved Crl.M.C.No.959/2009, to quash the final report. By Annexure II order, dated 31.03.2009, the Crl.M.C. was disposed of, directing the petitioner to move the Sessions Court under Section 227 of the Code of Criminal Procedure, for discharge, pursuant to which, a petition was moved for discharge, which was rejected by Annexure III order, which is under challenge. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. It is contended by the learned counsel appearing for the revision petitioner that, even if all the allegations against the petitioner are admitted, the offence covered by Section 3(1)(X) of the Act would not be attracted. It is contended that, from a perusal of Annexure I final report itself, it would be revealed that the occurrence was not Crl.R.P.No.3888 of 2009 : 3 : within public view and no person had even seen the commission of the offence complained of under Section 3 (1)(X) of the Act. In the above circumstances, it is contended that the dismissal of the application for discharge by Annexure III order on the ground that the place of occurrence was near a public road, cannot be sustained. It is further submitted that the revision petitioner was discharged of the offence under Section 354 IPC by Annexure III and charge was directed to be framed accordingly. 5. The learned counsel for the revision petitioner would rely on the decisions of the Apex Court in **Asmathunnisa v. State of A.P. and Another [2011 KHC** **4297]** , of this Court in **E.K.Nayanar v. M.A.Kuttappan [1997 KHC 66]** and **Sulochanan V.S. and Others v. State of Kerala and Others [2012 KHC 2975]** , to contend that the requirements of the offence being committed in public view and in the presence of the _de facto_ Crl.R.P.No.3888 of 2009 : 4 : complainant have to be satisfied to attract the offence under Section 3(1)(X) of the Act. It is further submitted that the Hyderabad High Court in **Bhaskar P. Raju v. State of Telangana and Others [2015 KHC 3646]** has considered an identical matter and has held that the section is specific that the insult or intimidation should have taken place in public view. If it is committed in any place which is not within public view, the offence would not be attracted, it is contended. Since in the said case, the alleged offence had taken place in chambers of the officers where there was no public, it could not be said to be within public view. In the above circumstances, it was held that the offence under Section 3(1)(X) of the Act was not made out and proceedings were quashed. 6. In the instant case as well, the allegation is that, the revision petitioner had trespassed into the residential building of the _de facto_ complainant and insulted and assaulted him. It is submitted by the learned counsel for Crl.R.P.No.3888 of 2009 : 5 : the revision petitioner that Annexure I would also go to show that statements of the witnesses do not disclose that the offence complained of was actually seen by them or was committed in public view. In the above circumstances, it is contended that the ingredients of the offence have not been made out. I am therefore, of the view that the dismissal of the application for discharge as evidenced by Annexure III is unsustainable. While admitting this revision petition, this Court had ordered an interim stay of all further proceedings in S.C.No. 262/09 of the Sessions Court, Pathanamthitta, which order is still subsists. In the above circumstances, this Court is of the view that this is a fit case where the request made by the revision petitioner for discharge under Section 227 of the Code of Criminal Procedure ought to have been allowed by the Sessions Court. This Court therefore, discharges the revision petitioner in respect of the offence under Section 3 (1)(X) of the Act. The revision petitioner shall face trial for Crl.R.P.No.3888 of 2009 : 6 : the remaining offences before the court of appropriate jurisdiction. Crl.R.P. is ordered accordingly. Sd/- **ANU SIVARAMAN, JUDGE** Bb/01/10/2016 _[True copy] P.A to Judge_