Syamjith K.S. v. State of Kerala and The Station House Officer, North Paravur Police Station, Ernakulam District, and RadhaKrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **Crl.MC.No.7636 OF 2019(D)** **CRIME NO.601/2019 OF North Parur Police Station, Ernakulam** ## **PETITIONER/ACCUSED:** **SYAMJITH K.S., AGED 22 YEARS S/O. SASIKUMAR, RESIDING AT KAYIPARAMBIL HOUSE, CHENNAMANGALAM, KARIMPADAM, NORTH PARAVUR, ERNAKULAM DISTRICT** **BY ADVS. SRI.T.MADHU SMT.REKHA NAIR SMT.C.R.SARADAMANI** ## **RESPONDENTS/STATE:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM** - **2 THE STATION HOUSE OFFICER NORTH PARAVUR POLICE STATION, ERNAKULAM DISTRICT - 683 513** **3 RADHAKRISHNAN AGED 49 YEARS S/O. SANKARAN, RESIDING AT MANIYANATTU PARAMBIL HOUSE, NEAR AMEPARAMBU BUS STOP, NAMBYATTUKUNNAM, NORTH PARAVUR VILLAGE, ERNAKULAM DISTRICT - 683 513** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON 28.11.2019 PASSED THE FOLLOWING:** Crl.M.C.No.7636/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7636 of 2019 -----------------------------------------------Dated this the 28[th] day of November, 2019 ## **O R D E R** The petitioner is the accused in the case registered as Crime No.601/2019 of the North Paravur police station. 2. The case was initially registered against the petitioner for the offences punishable under Sections 294(b), 323 and 506 I.P.C and also under Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). Subsequently, the offences under Sections 451 and 427 I.P.C and under Section 3(2)(va) of the Act have been added. 3. The case against the petitioner was registered on the basis of the first information statement given to the police by the de facto complainant. The material averments in the first information statement can be stated as follows: The petitioner Crl.M.C.No.7636/2019 3 had married the daughter of the de facto complainant. In fact, the daughter of the de facto complainant had left her house with the petitioner and married him. Thereafter, the de facto complainant had no connection whatsoever with them. On the evening of 23.04.2019, the daughter of the de facto complainant called and told him that she was going to leave the house and to commit suicide. Then, the de facto complainant went to her house and took her to his house. He also informed this fact to the petitioner. At about 18.05 hours on that date, when the de facto complainant reached his house, he heard a commotion from the house. When he went into the house, the petitioner was there. The petitioner then intimidated the de facto complainant that he would kill him and he hit on the forehead of the de facto complainant and caught hold of his neck and hit him on both shoulders. When the wife and son of the de facto complainant tried to intervene, the petitioner hit his son also. Hearing the cry of the de facto complainant, people gathered there. Then the petitioner left the house calling the de facto complainant by his caste name. The daughter and wife of the de facto complainant Crl.M.C.No.7636/2019 4 told him that the petitioner had also assaulted them. 4. This petition is filed by the accused under Section 482 Cr.P.C for quashing Annexure-A1 First Information Report registered in the matter on the ground that the offences under the Act alleged against him are not made out from the averments in the first information statement given to the police by the de facto complainant. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. 6. Notice was served on the third respondent/de facto complainant but he has not entered appearance. 7. At present, the offences alleged against the petitioner are under Sections 451, 427, 323, 294(b) and 506 I.P.C and also under Sections 3(1)(r) and 3(1)(s) and 3(2)(va) of the Act. 8. At the time of hearing, the learned counsel for the petitioner has not addressed any arguments to the effect that the averments in the first information statement given to the police by the de facto complainant would not attract the offences alleged against the petitioner under the Indian Penal Code. In Crl.M.C.No.7636/2019 5 fact, prima facie, the averments in the first information statement, would attract those offences. The emphasis made by the learned counsel for the petitioner is that the offences alleged against the petitioner under the Act are not made out against him. 9. Section 3(1)(r) of the Act provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, shall be punished. Section 3(1)(s) of the Act provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view, shall be punished. 10. On a perusal of the aforesaid provisions, it can be seen that, in order to attract the aforesaid provisions, the act alleged shall be committed by the accused within public view. Learned counsel for the petitioner has contended that the averments in the first information statement given to the police Crl.M.C.No.7636/2019 6 by the de facto complainant would not reveal that the petitioner has committed any such act within public view. 11. Prima facie, on the basis of the averments contained in the first information statement given to the police by the de facto complainant, the aforesaid contention cannot be accepted. It is stated in the first information statement that neighbours had gathered at the scene of the incident and when they came, the accused left the place and then he had abused the de facto complainant by calling him by his caste name. There is also an allegation in the first information statement that when the people gathered there, the petitioner had hurled abuses towards the de facto complainant. In such circumstances, at this stage of the case, it cannot be found that the petitioner has not committed any act of abuse or insult within public view. 12. Learned counsel for the petitioner would contend that there is no specific averment in the first information statement given to the police by the de facto complainant that the de facto complainant is a person who belongs to Scheduled Caste and that the petitioner is a person who does not belong to Scheduled Crl.M.C.No.7636/2019 7 Caste and therefore, the offences under the Act are not attracted against the petitioner. In support of this contention, learned counsel for the petitioner has placed heavy reliance upon the decision of the Supreme Court in **Gorige Pentaiah v. State of Andhra Pradesh : (2008) 12 SCC 531** . 13. In **Gorige Pentaiah** (supra), the Supreme Court has held as follows: _“In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27/05/2004, the appellant abused them with the name of their caste. According to the basic ingredients of S.3(1)(x) of the Act, the complainant ought to have alleged that the accused – appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent no.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused – appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. When the basic ingredients of the offence_ Crl.M.C.No.7636/2019 8 _are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.”_ 14. The dictum laid down by the Apex Court in the aforesaid decision cannot be applied to the facts of the present case. It is true that the de facto complainant had not specifically stated in the first information statement given to the police that the petitioner is a person who does not belong to Schedule Caste. However, the de facto complainant had stated to the police that he belonged to a particular caste. There is no dispute with regard to the fact that it is a scheduled caste. Moreover, in the statement given to the police by the wife of the de facto complainant it is stated that the petitioner belongs to a particular caste which is not a scheduled caste. The petitioner is not a stranger. He is the husband of the daughter of the de facto complainant. He very well knew that the de facto complainant is a person who belonged to Scheduled Caste. 15. Moreover, there can be no doubt with regard to the fact that the averments in the first information statement given Crl.M.C.No.7636/2019 9 to the police by the de facto complainant make out an offence punishable under Section 3(2)(va) of the Act against the petitioner. Out of the offences under the I.P.C alleged against the accused, the offences under Sections 323 and 506 I.P.C are offences included in the Schedule of the Act. Section 3(2)(va) of the Act provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punished. Therefore, prima facie, the allegations raised against the petitioner in Annexure-A1 FIR constitute an offence punishable under Section 3(2)(va) of the Act. ## 16. **In Asharafi v. State of U.P : AIR 2017 SC 5819,** the Apex Court has observed as follows: _“Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the_ Crl.M.C.No.7636/2019 10 _words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under S.3(2)(v) of the SC/ ST Prevention of Atrocities Act”._ 17. Section 3(2)(va) of the Act, inserted by virtue of Amendment Act 1 of 2016, also contains the expression “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Thus, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community is sufficient to attract the offence under Section 3(2) (va) of the Act. 18. In the instant case, the accused, being the husband of the daughter of the de facto complainant, was very well aware of Crl.M.C.No.7636/2019 11 the fact that the de facto complainant is a person who belongs to Scheduled Caste. The mere knowledge that the victim is a person who belongs to Scheduled Caste is sufficient to attract Section 3(2)(va) of the Act. 19. In the aforesaid circumstances, the prayer made by the petitioner for quashing Annexure-A1 F.I.R cannot be allowed. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.7636/2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE TRUE CERTIFIED COPY OF THE FIR DATED 10/5/2019 IN CRIME NO.601/2019 OF NORTH PARAVUR POLICE STATION, ERNAKULAM DISTRICT** ## **ANNEXURE A2** **THE TRUE COPY OF THE ORDER DATED 29/10/2019 IN CRL.M.C.NO.2132/2019 ON THE FILES OF THE LEARNED SESSION'S COURT ERNAKULAM** ## **ANNEXURE A3** **THE TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 7/2/2019 ISSUED BY THE LOCAL REGISTRAR, KOCHI MUNICIPAL CORPORATION** RESPONDENTS' EXHIBITS : NIL TRUE COPY PS TO JUDGE