Vimal Arackal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY,THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940** **Crl.MC.No. 2086 of 2015** **CP 1/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI CRIME NO.857/2012 OF Kannammali Police Station, Ernakulam** **PETITIONER/ACCUSED IN C.P 1/2015 OF JFCM-I, KOCHI:** **VIMAL ARACKAL AGED 43 YEARS S/O.CHARLES ARACKAL, ARAACKAL HOUSE, RUBY LINE END, THAMMANAM P.O, KOCHI 32, ERNAKULAM DISTRICT.** **BY ADV. SRI. PRAVEEN K. JOY** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM KOCHI 682 031 REPRESENTED BY SUB INSPECTOR OF POLICE, KANNAMALI POLICE STATION.** ***ADDL.R2 IMPLEADED** **'CHANDRAMATHI, AGED 65, D/O.CHOTHIPALAN, PUNNAKKATHARA, CP 11/451, ANGADIKADAVU P.O, KUMBALANGI, KOCHI TALUK, ERNAKULAM' IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 2-6-2015 IN CRL.M.A.NO.4982/15 IN CRL.M.C.NO.2086/2015** **BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.06.2018, THE COURT ON 14.8.2018 PASSED THE FOLLOWING:** Crl.M.C.No.2086/2015 2 ## **ORDER** The petitioner, who purchased certain extent of land from the 2[nd] respondent and others, has approached this Court with this petition to quash the final report filed against him in Crime No. 857/2012 of Kannamali Police Station. 2. The facts required for disposal of this petition in brief are as follows: The 2[nd] respondent and her relatives had an extent of 2.29 Ares of land in Kumbalangi Village. On 17.9.2012 after receiving the sale consideration transferred the entire property to this petitioner by executing sale deed No. 4157/2012. They have handed over the ownership and possession of the property on the very same day to this petitioner. The property was owned by 11 persons and they together had executed document No.4155/2012 on 17.9.2012. On 19.10.2012 the 2[nd] respondent preferred Annexure-III complaint against the petitioner before the Assistant Commissioner, Fort Kochi Police Station alleging that the petitioner had trespassed into her residence on 29.9.2012 and Crl.M.C.No.2086/2015 3 insulted her by calling her caste name. On the basis of the complaint, Annexure-IV FIR was registered as Crime No.857/2012. In fact, there is no allegation against this petitioner to attract an offence under Section 3(1)(x) of Scheduled Castes & Schedules Tribes (Prevention of Atrocities) Act (for short 'the Act') and hence Annexure-I, the final report filed against him in CP No. 1/2015 before the Judicial First Class Magistrate Court-I, Kochi is liable to be quashed after setting aside Annexure III complaint and Annexure-IV FIR. 3. Heard Sri. Praveen K. Joy, the learned counsel for the petitioner and Smt.M.K.Pushpalatha, the learned Public Prosecutor and perused the materials on record. 4. The learned counsel for the petitioner submitted that the complaint does not disclose the essential ingredients so as to attract an offence under Section 3(1) (x) of the Act. Moreover, the alleged trespass was on 29.9.2012. In fact, the sale deed in favour of the petitioner was executed and registered on 17.9.2012 and possession was also handed over to the petitioner. So he is the owner in possession of the property and hence there can be Crl.M.C.No.2086/2015 4 no trespass. It is also argued by the learned counsel for the petitioner that the 2[nd] respondent is only a shareholder out of the eleven co-owners of the property who executed the document in his favour. It is not the private or exclusive property of the 2[nd] respondent and in short the ingredients to attract the alleged offence are not discernible from the complaint filed against him and hence this is a fit case for quashing the final report, to meet the ends of justice. 5. The proposition of law pertaining to the statutory power under Section 482 of Code of Criminal Procedure is well settled that, it cannot be exercised as a matter of course but it has to be exercised judiciously, sparingly with great caution and care, to prevent abuse of process of the court and to secure the ends of justice. 6. Bearing in mind the legal proposition of law as enunciated in _**Gian Singh v. State of Punjab and Another [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another [(2014) 6 SCC 466], Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others v. State of**_ Crl.M.C.No.2086/2015 5 _**Gujarat and another (2018)1 SCC (Cr)1**_ etc whether the case on hand persuade this Court to exercise its power under Section 482 Cr.P.C, is the question to be looked into. 7. The 2[nd] respondent had admittedly sold her property along with the other 10 co-owners to this petitioner by executing sale deed No. 4155/2012 on 17.9.2012. Annexure-II is the copy of the sale deed. According to the petitioner, on the date of execution of the sale deed itself the possession of the property was handed over to him. The recitals of the sale deed also indicate the same. So he has been in possession and enjoyment of the property as per the sale deed. Annexure III is the complaint filed by the 2[nd] respondent on 19.10.2012 before the Assistant Commissioner of Police, Fort Kochi alleging that on 29.09.2012 at about 11 a.m the petitioner had trespassed into the residential house which is a shed, caused damages to it and destroyed the household articles and insulted her by calling her caste name. It is further alleged in the complaint that at the time of execution of the sale deed she had requested two months time to vacate the premises and he agreed for the same but in total violation of the same he Crl.M.C.No.2086/2015 6 trespassed into the house and committed the alleged offence. The case registered against the petitioner is under Section 3(1)(x) of the Act which reads as follows: - “ 3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Castes or a Scheduled Tribe,- - (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. 8. A reading of this provision would show that if a person who is not a member of scheduled caste or scheduled tribe intentionally insult or humiliate a member of scheduled caste or scheduled tribe on the ground that the victim is a member of scheduled caste or tribe, within public view, an offence is said to have been committed by the said person. So the essential ingredients to attract the offence are that; a) the victim shall be a member of scheduled caste or scheduled tribe, b) the person who committed the act shall not be a member of scheduled caste or scheduled tribe, c) The act was with the intention to insult or intimidate the member of scheduled caste or scheduled tribe, as he/she being a Crl.M.C.No.2086/2015 7 member of such caste or tribe, d) the accused had knowledge or at least aware of the fact that the victim belonged to the community of scheduled caste or tribe, e) the intention of the accused was to humiliate such member in a place within public view. 9. Public view means anything which is visible to public view while they are in or passing along any public place (Fifth Edition-Concise Law Dictionary). The word used in this provision is 'public view' not 'public place'. Therefore, the incident should be in a place where the public/people were present and that the accused had committed the offence with intention to harass/insult/intimidate the victim in public. So also, the intention of the accused assumes importance. The intentional insult/intimidation to humiliate a member of scheduled caste/tribe in a place within public view by a person who is not a member of SC/ST community, with the knowledge that the victim is a member of scheduled caste or tribe alone would constitute an offence under this section. In short, the basic ingredients to Crl.M.C.No.2086/2015 8 constitute an offence under this provision of the special statute, is definitely the intention to humiliate or insult the victim in public by calling caste name or by committing such other acts. 10. It is important to note that the alleged place of occurrence as revealed from the materials on record is the residential house of the 2[nd] respondent that too inside her house. She has no case that public was present at the time of the occurrence. So prima facie it is difficult to conclude that her house is coming within the ambit of 'public view'. So also it is not discernible from the materials on record that he had used any particular/specific words so as to humiliate her or to insult her as alleged. Merely calling a person by caste would not attract the penal provision. Therefore, prima facie the essential ingredients to attract an offence under Section 3(1)(x) are lacking. Even if he had used any words so as to insult her it will not constitute an offence under Section 3(1)(x) of the Act, as the incident was not at place within public view. An allegation that the 'humiliation was with the intention to insult her for being a member of scheduled caste' or knowing her caste, is conspicuously absent in the Crl.M.C.No.2086/2015 9 complaint lodged by her. The mere fact that the victim is a member of scheduled caste or tribe is not sufficient to attract an offence under the Special Statute. 11. Moreover it is to be noted that the complaint has not been lodged by her immediately after the alleged incident. Another ground stressed by the learned counsel is that the allegation of trespass is also insufficient to constitute an offence as the document in favour of the petitioner would makes it abundantly clear that the possession of the land was handed over to him at the time of execution of the deed itself. So even if he had entered into the property or in the house situated in the property it will not come within the ambit of 'trespass' as alleged. On consideration of the materials put forth it could be seen that the prosecution case if proceeded with, would cumiliate as a mere abuse of the process of law. Prima facie there is no case so as to attract an offence under Section 3(1)(x) of the Act. As the essential ingredients are prima facie found lacking, I have no hesitation to exercise the extra ordinary jurisdiction conferred on this court under Section 482 Cr.P.C. Crl.M.C.No.2086/2015 10 12. The special Act was enacted to protect the members of scheduled castes and tribes the weaker and down trodden section of the society and to prevent commission of assault, humiliation, inhuman exploitation, insult, harassment and all kinds of atrocities against them or to eradicate grave social evils as well to make them confident that they are also part of the main stream of the society, but that is not to say that, innocent persons to be prosecuted on frivolous complaints. Hence, I am constrained to conclude that the final report filed pursuant to FIR registered on the complaint are only to be quashed as prayed for, by the petitioner though the normal rule is not to interfere with the criminal proceedings. Therefore, the petition is allowed. Accordingly, Annexure IV FIR registered on the basis of Annexure-III complaint and final report filed in Crime No.857/2012 on the file of the Judicial First Class Magistrate Court-I, Kochi are hereby quashed. **SHIRCY V.** **JUDGE** ks Crl.M.C.No.2086/2015 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 ANNEXURE 1. COPY OF THE FINAL REPORT IN CP 1/15 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT 1, KOCHI.** **ANNEXURE P2 ANNEXURE 2. COPY OF THE SALE DEED NO.4155/2012 DATED 17.9.12. ANNEXURE P3 ANNEXURE 3. COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINT BEFORE THE POLICE DATED 19.10.12.** **ANNEXURE P4 ANNEXURE 4. COPY OF THE FIR IN CRIME NO.857/12 OF KANNAMALI POLICE STATION.**