RegHunathan Pillai T. v. State of Kerala and Reeja R.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **CRL.MC.NO.3393 OF 2015** **CRIME NO.174/2015 OF ARUVIKKARA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **REGHUNATHAN PILLAI T., S/O.THANKAPPAN PILLAI, MARUNAPPURA VEEDU, AMBALAMUKKU, PEROORKADA P O, THIRUVANANTHAPURAM.** **BY ADVS.SRI.P.A.AHAMMED, SRI.THOUFEEK AHAMED** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 REEJA R., D/O.RADHA, GOKULAM HOUSE, VELLURKONAM, KOKKOTHAMANGALAM MURI, ARUVIKKARA VILLAGE 695005** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR ADV. SRI.R.SUNIL KUMAR FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. No. 3393 of 2015 -----------------------------------------Dated this the 23[rd] day of November, 2020 ## O R D E R The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“..........quash Annexure-A FIR and all proceedings pursuant thereto in the interest of justice.”_ 2. Heard Sri.Thoufeek Ahamed, learned counsel appearing for the petitioner (sole accused), Sri.Santhosh Peter, learned Public Prosecutor appearing for R-1 (State) and Sri.R.Sunil Kumar, learned counsel appearing for contesting respondent No.2 (lady defacto complainant). 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.A FIR in Crime No.174/2015 of Aruvikkara Police Station, Thiruvananthapuram, which has been registered for offences punishable under Secs.406 & 420 of the IPC and Secs.3(1)(v) & (viii) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of the FIS given by the 2[nd] respondent lady defacto complainant on 24.3.2015 in respect of the alleged incidents which happened for the period from 1998 August upto 28.10.2014. 4. The brief of the prosecution cases is that, the petitioner with Crl.M.C. No. 3393 of 2015 ..3.. the knowledge that the 2[nd] respondent and her mother belongs to Scheduled Caste community (Hindu-Cheramur), had given Rupees One Lakh in August, 1998, to the 2[nd] respondent’s mother on security of the property having an extent of 16 cents along with a house belonging to the mother of the 2[nd] respondent, on condition that, when money is returned back, property will be re-conveyed to her. That, the petitioner on 22.10.1998, had made the 2[nd] respondent’s mother to convey the property of 16 cents by execution of deed at Sasthamangalam SRO, and later when the 2[nd] respondent and her mother had requested the petitioner to re-convey the property on payment of due amounts, the petitioner on 28.10.2014, had abused the 2[nd] respondent as well as her mother stating that, members of their community used to borrow money for fulfilling their own purpose, and could not return the money, and thus the petitioner had taken possession of the property of the 2[nd] respondent’s mother by cheating and thus dispossessed a member of the Scheduled Caste from the lawful possession of their property. 5. The case of the petitioner is that, the abovesaid allegations are false and vexatious and has been made on malafide and extraneous considerations. That, the 2[nd] respondent had Crl.M.C. No. 3393 of 2015 ..4.. previously filed a petition before the Kerala State Scheduled Castes/Scheduled Tribes Commission, and later on, a crime was registered on Aruvikkara Police Station, Thiruvananthapuram, for the very same offences in question. Further that, with regard to the very same property, the 2[nd] respondent’s mother had filed a civil suit as O.S. No. 1081/1999 on the file of the Additional Munsiff Court, Thiruvananthapuram, in which the petitioner herein has been arrayed as the defendant therein and the prayer in the said suit was for declaration of title of subject property in favour of the plaintiff therein (the 2[nd] respondent’s mother) and for recovery of property. In that, counter claim was preferred by the petitioner, who was the defendant in said suit, etc. 6. The said suit O.S. No. 1081/1999 filed by the 2[nd] respondent’s mother was dismissed by the Munsiff and the counter claim filed by the petitioner herein was allowed. Later on, the said judgment and decree of the Munsiff Court in O.S. was confirmed by the first appellate court, in the first appeal filed by the 2[nd] respondent’s mother. Later, the 2[nd] respondent’s mother has preferred a regular second appeal as RSA. No. 171/2006 before this Court, and the said second appeal was dismissed by this Court as per Crl.M.C. No. 3393 of 2015 ..5.. Anx.B judgment dated 4.7.2007. But, liberty has been accorded to the 2[nd] respondent’s mother for seeking to realize certain amounts mentioned therein. Further, the petitioner has paid an amount of Rs.4,50,219/- in tune with the findings of the judgment of the above regular second appeal. The 2[nd] respondent has also filed a suit for money against the petitioner for recovery of money from the 2[nd] respondent’s father’s salary, and the court had decreed the suit and petitioner had satisfied the decree by paying an amount of Rs.1,43,452/- on 3.1.2014, and all dues regarding the property were closed by the petitioner. 7. The abovesaid factual aspects canvassed by the petitioner are not in any manner disputed by the respondents, more particularly the second respondent regarding the dismissal of original suit, confirmation by first appellate court and subsequent RSA judgment rendered by this Court in Anx.B and the subsequent events relating to payment of money by the petitioner as aforestated. The petitioner would point out that, on 28.10.2014, the 2[nd] respondent, in order to get back the property by pressurizing the petitioner had filed instant complaint before the SC/ST Commission, later on a complaint before the Aruvikkara Police Station, for the offences punishable under Crl.M.C. No. 3393 of 2015 ..6.. Secs.406 & 420 of the IPC and Secs.3(1)(v) & (viii) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the very same subject matter and the dispute which has been decided in the civil suit, etc. 8. There does not appear to be any serious dispute by the respondents, more particularly the 2[nd] respondent, about the factum of civil proceedings already concluded and payment of due amounts by the petitioner. The subject property covered in the abovesaid civil proceedings is the same as the one covered in the impugned criminal proceedings at Anx.A FIR. Therefore it is only to be held that the initiation of impugned criminal proceedings at Anx.A is an abuse of the process of law, and has been done only for extraneous and ulterior considerations. 9. Section 3(1)(v) & (viii) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (unamended) as it stood at the relevant time reads as follows: “( _v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water; xxx xxx xxx_ (viii) _institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;_ ” Crl.M.C. No. 3393 of 2015 ..7.. 10. In view of the abovesaid factual aspects it cannot be seriously contended by the respondents that the ingredients of clause 'v' or clause 'viii' of Sec. 3(1) of the abovesaid Act are disclosed in the instant case. 11. Sri.R.Sunil Kumar, learned counsel appearing for the 2[nd] respondent would submit that, atleast the offence as per Sec.3(1)(x) of the SC/ST (POA) Act, 1989 (unamended) will come into play in this case. Sec. 3(1)(x) of the abovesaid Act, reads as follows: _“(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;”_ 12. A reading of the impugned criminal proceedings would make it clear like the day light that, the 2[nd] respondent has not even made out any case that the alleged incident of insult or humiliation has been done in any place within public view. The Apex Court, even recently reiterated the legal position as per judgment rendered on 5.11.2020 in Criminal Appeal No. 707/2020 in the case in _**Hitesh Verma v. The State of Uttarakhand**_ that, in view of the decision of the Apex Court in cases as in _**Swaran Singh and others v. State [(2008) 8 SCC 435]**_ that, another key ingredient of the provision insult/intimidation in “any place within public view” and Crl.M.C. No. 3393 of 2015 ..8.. that unless there are specific allegations that the incident has happened in any place within public view, the ingredients in abovesaid offence will not be made out. It will be profitable to refer to para Nos. 14 & 15 of the abovesaid judgment dated 5.11.2020 in Criminal Appeal No. 707/2020 in the case in _**Hitesh Verma v. The**_ ## _**State of Uttarakhand**_ , which read 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 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.”_ Crl.M.C. No. 3393 of 2015 ..9.. _15. As per the FIR, the allegations of abusing the informant were within the 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 charge-sheet, 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.”_ 13. In view of the well settled legal position it cannot be contended that the ingredients of Sec.3(1)(x) of the abovesaid Act would come into play in the facts and circumstances of this case. Moreover, the prosecution does not have any case that, the said offence as per Sec.3(1)(x) is disclosed. Further, it has been apprised to this Court that the abovesaid allegations have been made by the 2[nd] respondent only on account of extraneous and ulterior considerations and that it is only to be held that the other allegations regarding insult and intimidation made out to a member of the SC/ST community also would have been made only for extraneous and oblique considerations, and the incidents would have happened not in the manner alleged by the prosecution, but in some other manner. Hence inevitable conclusion of the upshot of the discussion is that, the impugned criminal proceedings is liable for Crl.M.C. No. 3393 of 2015 **==> picture [24 x 7] intentionally omitted <==** interdiction as it amounts to abuse of process of law. In that view of the matter it is ordered that, the impugned Anx.A FIR in Crime No.174/2015 of Aruvikkara Police Station, Thiruvananthapuram district, as against the petitioner accused and all consequential proceedings arising therefrom against the petitioner accused will stand quashed and set aside. 14. The petitioner will produce a certified copy of this order before the Investigating Officer concerned, as well as before the criminal court concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 3393 of 2015 ..11.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A**|**CERTIFIED COPY OF FIR NO 174/15 OF**| |---|---| ||**ARUVIKKARA**<br>**POLICE**<br>**STATION**<br>**DTD**| ||**24/3/2015**| |**ANNEXURE B**|**TRUE COPY OF JUDGMENT OF THIS HON'BEL**| ||**COURT IN RSA NO 171/2006 DTD 4/7/2007**| |**ANNEXURE C**|**TRUE COPY OF RECEIPT NO 6907 DTD**| ||**28/2/2009**| |**ANNEXURE D**|**TRUE COPY OF RECEIPT NO 6912 DTD**| ||**28/2/2009**| |**ANNEXURE E**|**TRUE COPY OF JUDGMENT DTD 31/7/2013 IN**| ||**OS NO 1149/2008 OF THE FIRST**| ||**ADDITIONAL**<br>**SUB**<br>**COURT,**| ||**THIRUVANANTHAPURAM**| |**ANNEXURE F**|**TRUE COPY OF THE CHALAN DTD 3/1/2014**|