Rajendran v. State of Kerala and Salim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023/24TH BHADRA, 1945** **CRL.REV.PET NO.859 OF 2023** **AGAINST THE ORDER IN CMP.1216/2023 OF SPECIAL COURT FOR SC/ST (POA) ACT, MANNARKKAD** ## **REVISION PETITIONER/COMPLAINANT:** **RAJENDRAN AGED 48 YEARS S/O GOPALAN, MANNOTH VEEDU, PIRAYIRI, PALAKKAD, PIN – 678004** **BY ADV L.RAJESH NARAYAN** ## **RESPONDENTS/PETITIONERS/3RD ACCUSED:** - **1 STATE OF KERALA REPRESENTED BY INSPECTOR OF POLICE, TOWN NORTH POLICE STATION, PALAKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682020** **2 SALIM AGED 45 YEARS BISMI FANCY, NAVAKKODU, KODUNTHIRAPULLY (P.O) PALAKKAD, PIN – 678004** ## **SRI.C.S. HRITHWIK, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. No.859/2023 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## Crl.R.P. No.859 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 15[th] day of September, 2023_ ## **O R D E R** ~ ~ ~ ~ ~ ~ The petitioner, who is the complainant in SC No.764/2020, is aggrieved by the common order dated 20.07.2023 in CMP No.1216/2023 passed by the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Mannarkkad. 2. The petitioner filed a complaint against the 2[nd] respondent and another accused alleging offences punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 420 IPC. The petitioner states that the police did not take any action and it was on the basis of a protest complaint that SC No.764/2020 was registered for the Crl.R.P. No.859/2023 : 3 : offences punishable under Section 420 read with Section 34 IPC and Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act, 1989'). 3. The 2[nd] respondent filed CMP No.1216/2023 invoking Section 227 Cr.P.C. seeking discharge. The petitioner filed objections to the petition. According to the petitioner, the ingredients of the offences alleged were satisfied. The Special Court, however, by order dated 20.07.2023 found that there is no sufficient ground to proceed further against the accused and that they are entitled to discharge under Section 227 Cr.P.C. 4. The counsel for the petitioner urged that the distinction between the expressions “public place” and “in any place within public view” has been elucidated by the Hon'ble Apex Court in _**Swaran Singh v. State** [(2008) 8 SCC 435]._ Even if remark is made inside a building but some members of the public are there (not merely relatives or friends), then also it will be an offence since it is in the public Crl.R.P. No.859/2023 : 4 : view. 5. The counsel for the petitioner submits that the incident in question took place within public view and the prosecution has cited two witnesses who have allegedly seen the incident. Whether they are friends or relatives of the de facto complainant or persons who have got any affinity towards the de facto complainant or whether they could be considered as “members of the public” are questions to be decided in evidence. The materials produced by the prosecution are sufficient to make out a _prima facie_ case against the accused. In the circumstances, the court below committed a grave error in granting discharge to the petitioner. 6. I have heard the learned counsel for the petitioner and the learned Public Prosecutor representing the 1[st] respondent. 7. The case of the petitioner before the court below was that the 3[rd] accused approached the petitioner with an information that immovable property of the other accused Crl.R.P. No.859/2023 : 5 : was available for sale. He made the petitioner to believe that the petitioner had valid title to the property. Based on that, the petitioner entered into an agreement for sale and handed over ₹50,000/- towards sale consideration as advance. Later, the accused refused to execute sale deed stating that they don't have clear title. The accused had knowledge of the defective title. By entering into an agreement for sale of property without clear title, the accused have committed the offence under Section 420 IPC. 8. The petitioner further alleged that when the petitioner approached the accused on 30.06.2019 at the house of the accused, the 2[nd] accused closed the gate and the accused called the caste name of the petitioner. The caste name was called with an intention to be heard by the public. Therefore, the accused have committed an offence under Section 3(1)(s) of the Act, 1989. 9. The Special Court noted that the issue arises out of a contractual transaction. The Special Court noted that calling of caste name by the accused was not heard by any Crl.R.P. No.859/2023 : 6 : public. It was on the basis of those findings that the Special Court allowed the CMP and discharged the accused. 10. The argument of the petitioner is that in AnnexureA1 complaint, the petitioner had specifically alleged that the accused called caste name of the petitioner with an intention that it be heard by others outside. Whether persons standing outside are members of the public is to be decided on the basis of analysis of evidence to be adduced. The Special Court therefore committed a grave error in granting discharge. 11. It is to be noted that in Annexure-A1 complaint, the allegation raised by the petitioner is that the accused called caste name with an intention that it will be heard by the public outside the residential compound. I am of the view that the said statement even if accepted to be proved, will not constitute an offence under Section 3(1)(s) of the Act, 1989. The petitioner has not stated that the accused has abused the petitioner in any place within public view. Crl.R.P. No.859/2023 : 7 : In that view of the matter, I do not find any illegality in the common order dated 20.07.2023 passed by the Special Court discharging the accused under Section 227 Cr.P.C. The Crl.R.P. therefore fails and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/15.09.2023 Crl.R.P. No.859/2023 : 8 : ## **APPENDIX OF CRL.REV.PET 859/2023** ## **PETITIONER'S ANNEXURES** **Annexure A1 TRUE COPY OF THE COMPLAINT FILED AS CMP NO.13/2019 BEFORE THE HON'BLE SPECIAL COURT FOR SC/ST (POA) ACT, MANNARKKAD Annexure A2 TRUE COPY OF THE APPLICATION FOR DISCHARGE FILED BY THE 2ND RESPONDENT DATED 26.6.2023 Annexure A3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO ANN. A/2 Annexure A4 CERTIFIED COPY OF THE COMMON ORDER DATED 20.7.2023 IN CMP NO.1216/2023 IN SC 764/2020 ON THE FILES OF THE HON'BLE SPECIAL COURT FOR SC/ST (POA) ACT, MANNARKKAD**