## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA**
**TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937**
## **Crl.Rev.Pet.No. 932 of 2015**
## **-------------------------------**
## **CRL.MP 189/2015 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.**
**........**
## **REVISION PETITIONER/PETITIONER:**
**-----------------------------------------------------**
**M.P. CHOTHY, AGED 65 YEARS, S/O.KALAMBAN PAINKAN, MACHERIKKUDY HOUSE, IRINGOLE.P.O, PIN-683548.**
## **BY ADV. M.P. CHOTHY (PARTY IN PERSON)**
**RESPONDENT/ACCUSED:**
**-------------------------------------**
## **1. HANY K. DAS, S.H.O,**
**ERNAKULAM NORTH POLICE STATION NOW S.H.O, PERUMBAVOOR POLICE STATION.**
**2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT.**
**BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**mbr/**
**Crl.Rev.Pet.No. 932 of 2015 -------------------------------------**
## **APPENDIX**
## **PETITIONERS' ANNEXIURES:**
**ANNEXURE 1 : TRUE PHOTOCOPY OF THE CRIMINAL MISCELLANEOUS PETITION NO.189/15. ANNEXURE 2 : TRUE PHOTOCOPY OF ARGUMENT NOTE FILED BY THE PETITIONER. ANNEXURE 3 : CERTIFIED COPY OF THE ORDER DATED 15.5.2015. RESPONDENTS' ANNEXURES: NIL.**
**//TRUE COPY//**
**P.S. TO JUDGE**
**mbr/**
## **“CR”**
## **B.KEMAL PASHA, J.**
================ Crl.R.P. No. 932 of 2015 ======================= Dated this the 23[rd] day of February, 2016
## **O R D E R**
The petitioner has filed Annexure-1 complaint against the 1[st] respondent herein, who is the SHO, Ernakulam Town North Police Station, alleging an offence under Section 166 of the Indian Penal Code.
2. The case of the complainant is that he had filed complaint dated 24.07.2014 before the 1[st] respondent, alleging that one Nandan, a clerk attached to the Consumer Disputes Redressal Forum (CDRF), Ernakulam, had misbehaved towards him and insulted him, thereby committing an offence punishable under Section 7(1)(d) of the Protection of Civil Rights Act, 1955 (for short “the Act”) and further that the said person had committed an offence under Section 3(1)(x)
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of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also. According to the petitioner, even though the 1[st] respondent was duty bound to register a crime in the matter, as per the directions of the Apex Court in **Lalitha Kumari v. Government of U.P.** [2014 (2) SCC 1], the 1[st] respondent has not registered any crime in the matter and thereby, he has committed an offence punishable under Section 166 IPC.
3. The question to be considered is, whether the petitioner had preferred a complaint before the 1[st] respondent, which revealed the commission of any cognizable offence or not?
4. According to the petitioner, he had filed complaint dated 24.07.2014 before the 1[st] respondent. The petitioner, who is party in person, has handed over the copy of such a complaint filed by him as aforesaid, for perusal of this Court.
5. On a perusal of the said complaint, it could be
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seen that the case of the complainant in that petition is that he had obtained the copy of an order of dismissal of his complaint by the CDRF, and on a perusal of the copy, he could see that the matter in its fifth page were not legible. As he could not read it out, he asked the said person, named Nandan to read out the said page to him. Immediately, the said Nandan replied that 'it was not his job to do it'. According to the petitioner, he felt insulted because of that answer given by the said Nandan and he considered that the said refusal of the said person was on account of untouchability.
6. Again, the petitioner had allegedly furnished an application for obtaining readable copy. The copy had to be typed and had to be handed over. When he appeared at the office, he was made to wait there for long and after finishing all of his other works, the said Nandan told the petitioner to remit an amount of 21/-₹ as fee. When he handed over a 100 rupee currency note, the said Nandan demanded change. The petitioner
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gave the change. Thereupon, the copy of the dismissal order was served on him. Since he had applied for the copy of the order sheet also, he demanded it. Then, he was told that there was no such application. When the petitioner insisted that there was such an application and he wanted to see it, the entire case bundle was searched by the said clerk and he could trace out the said application. Then, the petitioner questioned Nandan as to how the said application could be traced out. At that time, the said Nandan replied that 'there was no need for the petitioner to get angry'.
7. According to the petitioner, the aforesaid reply given by the said Nandan, humiliated and insulted him. On a perusal of the replies allegedly made by the said Nandan, it seems that any abusive words were not used by the said person. Further, it seems that any words of insult were not used by the said person. It may be true that the petitioner might have got insulted himself. But legally speaking, it could not invite insult within the
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meaning of Section 7(1)(d) of the Protection of Civil Rights Act, 1955.
8. As per Section 7(1)(d) of the Act, “Whoever insults or attempts to insult, on the ground of “untouchability”, a member of a Scheduled Caste, shall be punishable under the said provision”. Therefore, in order to attract the said provision, a person belongs to a Scheduled Caste should be insulted or attempted to be insulted on the ground of “untouchability”.
9. According to the petitioner, the burden is on the said person, named Nandan to prove that the petitioner was insulted, not on the ground of “untouchability”. It is the case of the petitioner that as per Section 12 of the said Act, “when an offence under the said Act is committed in relation to a member of a Scheduled Caste, the court shall presume, unless the contrary is proved, that such act was committed on the ground of “untouchability”. The said presumption can be invited only before a court of law.. The said presumption is not
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available before a Police Officer. Over and above it, the said presumption comes into play even before a court of law, only when any act constituting an offence under that Act is shown committed in relation to a member of a Scheduled Caste. Then, the question is, whether any act constituting an offence under that Act was committed by the said Nandan or not?
10. As pointed out earlier, in order to constitute an offence under Section 7(1)(d) of the Act, the insults or attempts should be on the ground of “untouchability”. There is absolutely nothing to show that the said Nandan had given the aforesaid replies with a view to insulting the petitioner, or insulting the petitioner on the ground of “untouchability”. Had there been any such thing to show that the petitioner was insulted by Nandan or attempted to be insulted by him on the ground of untouchability, the offence under Section 7(1) (d) could have been raised against the said person, since the petitioner is a member of a Scheduled Caste.
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Only when it is shown that any act constituting an offence under the said Act was committed, the presumption under Section 12 of the Act is attracted. In this case, as there is nothing to show that any act constituting an offence under the Act has been committed, the presumption under Section 12 is not attracted.
11. Matters being so, there was nothing wrong on the part of the 1[st] respondent in not registering a crime based on the complaint dated 24.07.2014 preferred by the petitioner. The said complaint did not reveal any cognizable offence at all. It did not reveal any offence under the Protection of Civil Rights Act, 1955 or the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Therefore, it cannot be said that the 1[st] respondent had committed an offence punishable under Section 166 of the IPC. The impugned order passed by the court below does not suffer from any illegality, irregularity, or impropriety and therefore, the
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same is not liable to be interfered with.
In the result, this Crl.R.P. is dismissed.
Sd/- **B.KEMAL PASHA, JUDGE**
stu
