Satish Singhal vs State

Court: DELHI HIGH COURT

Bench: JUSTICE MANOJ KUMAR OHRI, J

Satish Singhal vs State on 20 September 2021

Law Point: SC ST Act alleged crime did not happen in public view. Fit case to grant Anticipatory Bail 

JUDGEMENT

1. The present bail application has been filed under Section 438 Cr.P.C. on behalf of the applicant seeking anticipatory bail in FIR No. 21/2021 registered under Sections 3(1)(r)/3(1)(s) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act) at Police Station Nihal Vihar, Delhi.

2. Learned counsel for the applicant submits that the present incident is alleged to have taken place on 30.09.2019, when the applicant had gone to the house of the complainant alongwith his wife, children and some unknown persons, wherefore an altercation took place. On this occasion, the applicant and his wife are alleged to have uttered caste-based remarks against the complainant, besides threatening him for life. Learned counsel for the applicant submits that a perusal of the FIR would show that no offence under Sections 3(1)(r)/3(1)(s) of the SC/ST Act is made out. He further submits that the FIR came to be registered on 08.01.2021 with respect to an incident that had allegedly taken place about 1 year and 4 months earlier i.e., on 30.09.2019. He submits that the FIR was registered on a handwritten complaint given by the complainant, where no ‘public view’ has been mentioned in terms of Section 3(1)(r) of the SC/ST Act. He further submits that the complainant and the applicant have been embroiled in a property dispute with respect to Plot No. CN-163, New No. RZK-2/313D & 313-A measuring 125 Sq. Yds. Situated at Nagloi Jat, Nihar Vihar, of which both claim to be owners by virtue of respective Agreements to Sell executed by one common seller i.e., Krishan Kumar. He also submits that prior to the lodging of the present FIR, there have been multiple cases pending between the parties. In this regard, he has referred to FIR No. 673/2019 registered under Sections 354(B)/323/341/506/509/34 IPC, FIR No. 703/2019 registered under Sections 323/341/34 IPC and FIR No. 704/2019 registered under Sections 323/341/506/34 IPC at Police Station Nihal Vihar, Delhi out of which the first two are stated to be registered by the applicant or his family members against the erstwhile owner i.e. Krishan Kumar. He has also referred to the civil proceedings pending between the applicant and the erstwhile owner. He submits that the complainant has filed the present FIR at the behest of Krishan Kumar with malafide intention on account of the aforementioned property dispute.

3. Learned APP for the State, duly assisted by learned counsel for the complainant, has vehemently opposed the bail application. It is stated that though the FIR came to be registered on 08.01.2021 the complaint with respect to the incident was given on the next date i.e. on 01.10.2019, which was received at the concerned police station vide DD No. 65B. Learned counsel for the complainant additionally submits that a PCR call was also made on 30.09.2019 with respect to the incident in question.

4. On a specific query, the ACP, Paschim Vihar, has replied that no PCR call was received on 30.09.2019. He has also stated that PCR calls were earlier received on 27.02.2019 & 16.03.2019, when only an incident of quarrel was reported and there was no complaint with respect to uttering of any caste-based remarks on those occasions.

5. Learned counsel for the applicant has relied on the decision in Prathvi Raj Chauhan v. Union of India and Others reported as (2020) 4 SCC 727 to submit that the anticipatory bail is maintainable in a case under the SC/ST Act, provided the ingredients of the offence are not made out on prima facie reading of the FIR.

6. I have heard the learned counsels for the parties and perused the material placed on record.

7. Insofar as maintainability of an application under Section 438 Cr.P.C. in view of bar created by Section 18 of the SC/ST Act is concerned, suffice it to say that the Supreme Court in Prathvi Raj Chauhan (Supra) has held:

“11. Concerning the applicability of provisions of Section 438 Code of Criminal Procedure, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.”

8. This view has been reiterated by a separate and concurring judgment of Hon’ble S Ravindra Bhat, J. in the following manner:

“32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.”

9. The present case is registered under Sections 3(1)(r)/3(1)(s) of the SC/ST Act, 1989 which read as under:

“3. Punishments for offences of atrocities.-7 [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- xxx

(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

xxx shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.]”

10. It is well settled that for applicability of Sections 3(1)(r)/3(1)(s) of the SC/ST Act to a case, all the ingredients of the alleged offence are to be made out from the complaint. Notably, an offence under Section 3(1)(r) [formerly Section 3(1)(x)] is not made out simply because the complainant is a member of a Scheduled Caste or a Scheduled Tribe.

11. The basic ingredients that need to be established in order to attract penalty under Section 3(1)(r) of the SC/ST Act are – (i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within ‘public view’. Similarly, the basic ingredients in respect of Section 3(1)(s) of the SC/ST Act are – (i) abusing of any member of Scheduled Caste or Scheduled Tribe by caste name and (ii) in any place within ‘public view’.

12. The word ‘public view’ has not been defined under the SC/ST Act. But, what is to be regarded as a ‘place within public view’ has come up for consideration in various decisions. In Asmathunnisa v. State of Andhra Pradesh represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and Another reported as (2011) 11 SCC 259, it has been held that:-

“9. The aforesaid paragraphs clearly mean that the words used are ‘in any place but within public view’, which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.”

13. Prior to this decision, a distinction had been drawn between the expressions ‘public place’ and ‘in any place within public view’ in Swaran Singh and Others v. State through Standing Counsel and Another reported as (2008) 8 SCC 435 in the following terms:-

“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.”

14. The view taken in Swaran Singh and Others (Supra) has been cited with approval in Hitesh Verma v. State of Uttarakhand and Another reported as (2020) 10 SCC 710, wherein charge sheet against the accused was quashed to the extent of allegations under Section 3(1)(x) of the SC/ST Act [now Section 3(1)(r)]. One of the primary factors that weighed with the Court in arriving at the decision was that it was not the complainant’s case that the alleged incident had taken place within ‘public view’. A basic ingredient of the Section impugned having not been made out, the decision was rendered in favour of the accused.

15. In the present case, it is noted that the incident is stated to have taken place on 30.09.2019. A handwritten complaint was given on the next day of the incident i.e. on 01.10.2019, which was received in the concerned police station vide DD No. 65B. The contents of the aforesaid complaint are pari materia with the allegations levelled in the FIR. The complainant has stated that the applicant visited him on 27.09.2019, entered into an altercation on account of vacation of property and uttered caste-based remarks. However, a reading of the FIR would show that nowhere in the complaint/FIR, it was alleged that at the time when the caste-based remarks were uttered, any public person was present.

16. The dispute between the parties is essentially a property dispute. The first allegation with respect to the commission of offence came by way of a handwritten complaint given by the complainant which resulted in the registration of FIR. In the said complaint/FIR, it was not averred that the alleged incident was committed in a place within ‘public view’. Thus, on a reading of the complaint/FIR, one of the basic ingredients of the Sections under which the applicant is sought to be prosecuted is prima facie not made out.

17. On 12.01.2021 i.e., after about one year and four months of the incident and giving of handwritten complaint, the complainant’s statement was recorded under Section 161 Cr.P.C. wherein for the first time, the complainant stated that the caste-based remarks were uttered in the presence of two public persons. It is stated that subsequently, the statements of those two persons were recorded.

18. In addition, learned counsel for the applicant has urged that the filing of the complaint was actuated by malice and the behest of one Krishan Kumar who has sold the plot in question to both the applicant as well as the complainant vide separate documentation. It has also been urged that there are various civil and criminal proceedings between the applicant and said Krishan Kumar.

19. Keeping in view the aforesaid facts and exposition of law, and especially the fact that the names of the public persons have come on record for the first time after one year and four months from the date of alleged incident, it is directed that in the event of arrest, the applicant be released on anticipatory bail subject to his furnishing a personal bond in the sum of ₹25,000/- with one surety of the like amount to the satisfaction of the Arresting Officer/Investigating Officer/SHO of the concerned police station and also subject to the further following conditions:-

(i) The applicant shall join the investigation as and when so directed by the concerned Investigating Officer.

(ii) The applicant shall remain available on mobile number i.e., 9811601425 which he undertakes to keep operational at all times during the trial.

(iii) The applicant shall not directly or indirectly try to get in touch with any of the prosecution witnesses or tamper with the evidence.

(iv) The applicant shall not leave the NCT of Delhi without prior intimation to the concerned Investigating Officer.

(v) In case of change of residential address/contact detail, the applicant shall promptly inform the same to the concerned Investigating Officer/SHO.

(vi) The applicant shall regularly appear before the Trial Court as and when the charge sheet is filed.

(vii) The applicant, after his release on anticipatory bail, shall not indulge in or commit similar offence.

20. The bail application is disposed of in the above terms.

21. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.

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