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Judgment
The petitioner-sole accused now stands before this Court calling in question an order dated 03.08.2024, passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru, which turns down the application of the petitioner seeking his discharge from the array of accused in Spl.C.No.2146/2023, registered for the offences under Section 504 of the IPC and Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Heard Sri. Sandesh J Chouta, learned Senior Counsel appearing for the petitioner, Sri Anoop Kumar, learned Additional State Public Prosecutor appearing for respondent No.1-State and Sri. K.B.K.Swamy, learned counsel appearing for respondent No.2 – complainant.
The facts enumerated, are as follows:
An incident that happens on 12.08.2023 is complained of on 15.08.2023 by the respondent No.2 - complainant, which becomes a crime in Crime No.162/2023 for the offences punishable under Sections 109, 506, 509, 341, 504, 120B, 143, 147, 149, 307 and 354 of the IPC and Sections 3(2)(v), 3(1)(w)(i)(ii), 3(1)(r) and 3(1)(s) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Act’ for short).
The police conduct investigation and file a charge sheet, which is now pending as special case in Spl.C.No.2146/2023, for the offences under Section 504 of the IPC and Section 3(1)(r) of the Act. The petitioner files an application seeking discharge from the array of accused, under Section 227 of the Cr.P.C., on the score that none of the ingredients of the offences that are alleged against the petitioner would be met with in the facts obtaining in the case at hand. The concerned Court in terms of the order impugned, rejects the application for discharge, which has now driven the petitioner to this Court in the subject petition.
Sri Sandesh J. Chouta, learned Senior Counsel appearing for the petitioner submits that the complaint itself could not have been entertained in the light of the fact that the complainant is not the victim, but is the nephew of the victim and whatever the complainant has heard is only from his nephew and therefore, it becomes hearsay and not a direct act of hurling of submits that the concerned Court at the time of answering the application seeking discharge is required to consider every facet and every aspect of the matter and then arrive at a conclusion as to whether charges are required to be framed against the petitioner. The learned Senior Counsel submits that the order of rejection of the application seeking discharge, would run foul of the judgments rendered by the Apex Court on the issue. He would seek to place reliance upon plethora of judgments, all of which would again bear consideration qua their relevance in the journey of the judgment.
The learned Senior Counsel would further contend that there is no doubt that the squabble did take place on a particular aspect between the petitioner and the victim. But at the time of hurling of abuses or when the abuses were hurled, the victim was not present. Therefore, the ingredients of Section 3(1)(r) of the Act are not met even to its resemblance in the case at hand, is the Learned Senior Counsel's submission.
With all the aforesaid submissions, learned Senior Counsel would seek to set the order aside and discharge the petitioner from the array of accused in the charge sheet.
Per contra, Sri K.B.K. Swamy, the learned counsel appearing for respondent No.2-complainant would vehemently refute the submissions in contending that the abuses are admittedly hurled not at one place, but at three places and all of which, are public places. It is not a case where place was of public view or the abuses have been hurled.
Sri. Swamy, learned counsel for respondent No.2 submits that the concerned Court while answering the application seeking discharge has appropriately considered the parameters of discharge and has noted the abuses that are hurled, which were in a public place. Therefore, he would submit that there is no warrant of interference with the order that is passed by the concerned Court, dismissing the application seeking discharge. He would also seek to place reliance upon a plethora of judgments, all of which ಕಲಂಕಲಂಕಲಂಕಲಂ:504 ಐಐಐಐ.����.TTTT & ಕಲಂಕಲಂಕಲಂಕಲಂ:3(1), (ಆlಆlಆlಆl), ಎ�ಎ�ಎ�ಎ�.TTTT ಎ�ಎ�ಎ�ಎ�.qqqq. [����.ಎಎಎಎ] ಆ\rಆ\rಆ\rಆ\r, 1989 >ೋ£ಾ%ೋಪಣ>ೋ£ಾ%ೋಪಣ>ೋ£ಾ%ೋಪಣ>ೋ£ಾ%ೋಪಣ ಪತ-ವನು;ಪತ-ವನು;ಪತ-ವನು;ಪತ-ವನು; ಸ�"TರುತR>ೆ”..ಸ�"TರುತR>ೆಸ�"TರುತR>ೆಸ�"TರುತR>ೆ”..”..”..
(Emphasis added)
The concerned Court takes cognizance of the offences and registers a special case in Spl.C.No.2146/2023. The taking of cognizance leads the petitioner to file an application seeking his discharge before the concerned Court invoking Section 227 of Cr.P.C. The concerned court answers the application seeking discharge by the impugned order. The reasons so rendered by the concerned Court reads as follows:
“…. …. ….
12.Point No.1: Eliminating the unnecessary facts, the undisputed facts which could be noticed are that the complainant by name Manjunath S.L. had lodged written information on 15.8.2023 who contends to be the nephew of Sri Bheemanaik, Ex-MLA of Hagaribommanahalli Constituency. He has contended that there were several abusive words being hurled by the accused Siraj Sheik due to some political rivalry between them. It is also alleged in the complaint that the accused had used abusive words and also offended by taking the name of their caste. It is noticed from the entire averments made in the complaint that, initially a squabble had taken place between the complainant and accused due to displaying of a flex board to welcome the District In charge Minister on 12.08.2023. Further it is alleged in the complaint that subsequently on 15.08.2023 when the District Minister had visited, once again verbal altercation had taken place and in the presence of several public persons the accused had abused the complainant and his maternal uncle in filthy language touching the name of his caste. It is the contention of prosecution that the complainant who is the nephew of Sri Bheemanaik, who was also Ex-MLA of Hagaribommanahalli constituency, was abused by the accused person with offensive words touching the name of his caste once again at Junior College premises where KDP meeting was being conducted.
13.It is relevant to note at this juncture that initially when the FIR was lodged, there were three set of incident that had taken place i.e., one prior to the visit of the District In charge Minister near Ramanna Daba and subsequently on 12.8.2023 a squabble that has taken place in the presence of District In charge Minister and later on an another incident that had taken place in the KDP meeting which was called by the District In charge Minister near the Junior College. The three incidents are required to be read conjointly to ascertain whether any intentional abuses were hurled by the accused person to the complainant. Admittedly, in the instant case, the victim i.e., Sri Bheemanaik was not at all present at the place of incident when the abuses were being hurled near the Junior college. However, it is relevant to note at this juncture that in the initial stage when FIR was filed it is narrated in the complaint that several volley of allegations were being made touching the dignity and modesty of women folk of the family of the complainant. However, at the time of filing the charge sheet, it is noticed from the records that the Investigating officer had reached the conclusion on the basis of the materials which were obtained during the course of investigation that the abuses which were hurled were in the name of the caste attracting the provisions of Sec.3(1)(r) of the Act.
14.On perusal of the entire charge sheet it indicates that at the inception, the party workers of Indian National Congress had intended to welcome the district In-charge Minister Sri Zameer Ahmed Khan who had intended to visit Hagaribommanahalli. It is also noticed from the records and also from the written information filed by CW1 which narrates the incident that had taken place would reflect that on 11.8.2023 a squabble had taken place between the ಆI>ೆHೕಆI>ೆHೕಆI>ೆHೕಆI>ೆHೕ ಆಆಆಆ ಸೂ�ೆಸೂ�ೆಸೂ�ೆಸೂ�ೆ ಮಗG�ೆಮಗG�ೆ,,ಮಗG�ೆಮಗG�ೆ,, ಎರಡುಎರಡುಎರಡುಎರಡು �ಾಂಡ�ಾಂಡ,�ಾಂಡ�ಾಂಡ,,, 17171717 �ಾಂಡಗಳ�"�ಾಂಡಗಳ�"�ಾಂಡಗಳ�"�ಾಂಡಗಳ�" ಬಂNಾರಬಂNಾರಬಂNಾರಬಂNಾರ ಸ#ಾಜದವರುಸ#ಾಜದವರುಸ#ಾಜದವರುಸ#ಾಜದವರು ಅವG�ೆಅವG�ೆಅವG�ೆಅವG�ೆ ಓ�ಓ�ಓ�ಓ� <ಾ9ಲ"<ಾ9ಲ"<ಾ9ಲ"<ಾ9ಲ" ಎಂದುಎಂದುಎಂದುಎಂದು ನಮ�ನಮ�ನಮ�ನಮ� #ಾಮG�ೆ#ಾಮG�ೆ#ಾಮG�ೆ#ಾಮG�ೆ �ೈದನು;�ೈದನು;�ೈದನು;�ೈದನು; <ಾಗೂ<ಾಗೂ ಐ<ಾಗೂ<ಾಗೂಐಐ.ಐ..�.��.�..ಎ`.ಎ`ಎ` ಆUcೋಎ`ಆUcೋಆUcೋಆUcೋ kಂU-ಗುqrದವ*ೆkಂU-ಗುqrದವ*ೆkಂU-ಗುqrದವ*ೆkಂU-ಗುqrದವ*ೆ ಎಂದುಎಂದು �ೈದುಎಂದುಎಂದು�ೈದು�ೈದು�ೈದು ಬಂNಾರಬಂNಾರ NಾMಬಂNಾರಬಂNಾರNಾMNಾMNಾM Gಂದ*ೆvಾಗುವGಂದ*ೆvಾಗುವ NಾMGಂದ*ೆvಾಗುವGಂದ*ೆvಾಗುವNಾMNಾM ಸೂಚಕNಾMಸೂಚಕಸೂಚಕ ಪದಬಳ ೆಸೂಚಕಪದಬಳ ೆಪದಬಳ ೆಪದಬಳ ೆ #ಾU#ಾU ಬಂNಾರ#ಾU#ಾUಬಂNಾರಬಂNಾರ ಸ#ಾಜದಬಂNಾರಸ#ಾಜದಸ#ಾಜದ ಘನ�ೆ�ೆಸ#ಾಜದಘನ�ೆ�ೆಘನ�ೆ�ೆಘನ�ೆ�ೆ ದ ೆ 1ದ ೆ 1ದ ೆ 1ದ ೆ 1 ಆಗುವಂ�ೆಆಗುವಂ�ೆಆಗುವಂ�ೆಆಗುವಂ�ೆ �ೈ>ಾUರು�ಾR*ೆ�ೈ>ಾUರು�ಾR*ೆ.�ೈ>ಾUರು�ಾR*ೆ�ೈ>ಾUರು�ಾR*ೆ ... ಈಈಈಈ ಘಟ*ೆಯನು;ಘಟ*ೆಯನು;ಘಟ*ೆಯನು;ಘಟ*ೆಯನು; ನನ;ನನ;ನನ;ನನ; Nೊ�ೆಯ�"ದ?Nೊ�ೆಯ�"ದ?Nೊ�ೆಯ�"ದ?Nೊ�ೆಯ�"ದ? ರ}ೕಶGಂದರ}ೕಶGಂದ ಅವನರ}ೕಶGಂದರ}ೕಶGಂದಅವನಅವನ �ೕ�ಅವನ�ೕ��ೕ� ಕಂಪGಯ�ೕ�ಕಂಪGಯಕಂಪGಯ C�ೈ`ಕಂಪGಯC�ೈ`C�ೈ`ನ�"C�ೈ`ನ�"ನ�" �UHೕನ�"�UHೕ�UHೕ #ಾUT>ೆನು�UHೕ#ಾUT>ೆನು#ಾUT>ೆನು..#ಾUT>ೆನು.. Annexure:-03 ಎಂದುಎಂದು ಸೂhTಎಂದುಎಂದುಸೂhTಸೂhT,ಸೂhT,, ದೂ�*ೊಂA�ೆ,ದೂ�*ೊಂA�ೆದೂ�*ೊಂA�ೆದೂ�*ೊಂA�ೆ ಲಗMRTರು�ೆRೕ*ೆಲಗMRTರು�ೆRೕ*ೆ..ಲಗMRTರು�ೆRೕ*ೆಲಗMRTರು�ೆRೕ*ೆ..”..”.”.”
Thereafter, it is also noticed that another squabble has taken place on the very same day at about 12.00 p.m. when KDP meeting was being convened at the college premises of Hagaribommanahalli village. The aforesaid act clearly indicates of hurling abuses and insults to the complainant and also to his maternal uncle CW-6 Bheemanaik. It would be appropriate to consider whether the aforesaid abuses attract the rigors of the Act. For the sake of convenience, the provision of Sec.3(1)(r) is required to be considered at this juncture, which reads as follows:
Section 3. Punishments for offences of
atrocities:
(1)Whoever, not being a member of Scheduled Caste or a Scheduled Tribe ---
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(b)********
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(j)********
(k)********
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(m)*******
(n)*******
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(q)******
(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;
As per the aforesaid provision, the insult or humiliation which is being hurled at the complainant should have been made with an intention to humiliate him, because he belongs to Scheduled caste or Scheduled tribe and same is required to be made in any place within public view. In the aforesaid instance, it is noticed that the first incident had taken place near Ramanna Dhaba, Railway Gate, Hagaribommanahalli and also it was committed in the presence of party workers and subsequently the second incident had taken place when the party workers were welcoming the District Incharge Miniseter near Railway Gate and last incident had allegedly taken place near the college premises where KDP meeting was being conveyed, hence all the incidents had taken place at a public place.
I have also bestowed my anxious reading to the statements which have been recorded by the Investigating Agency in particularly with respect to CW7 Ramesh, CW8 Pavadi Hanumanthappa, CW9-Dish Manjunatha, CW10-Turayi Naik, CW11-S.Ramanna, CW12-Smt.Manjula, CW13-Smt.Ambika, CW14-Smt.Saraswathamma, CW15-Mari Ramappa, CW16-B.Devendrappa, CW17-G.Somanatha, CW18-Smt.Shahira Banu, CW19-SmtYashodamma, CW20-Kori Gonibasappa, CW21-Akki Thotesha, and CW22-Dish Bhima Naik. On perusal of their statements, it indicates that the abuses being hurled by accused person by using filthy language against the caste of the Bheema Naik is forthcoming. No doubt it does not indicate the particular abuses being hurled by the accused person against this complainant. However, the ingredients indicate of insulting the complainant and also his maternal uncle CW6 Bheemanaik. In order to attract the rigors of Sec.3(1)(r) of the Act, the intention plays a very vital role. In the instant case as noticed from the records, the act cannot be termed as the one which had taken place in a spur of a moment. It is noticed that on 11.8.2023 itself a squabble has taken place when the photographs and name of the accused person was not forthcoming in the flex banner which was being installed to welcome the District-in-charge Minister. Thereafter, on the very next day i.e., on 12.8.2023 when the District Incharge Minister had come to attend a meeting, he was being welcomed by the party workers at 11.00 a.m. in the morning. It is also noticed that the statement of the witnesses consistently indicates that they had welcomed him and at that time, CW6 Bheemanaika was requested to sit in the back seat of the car in which the District Incharge Minister was traveling. On noticing the same, the accused got enraged and got down from the car and started to hurl abuses. The aforesaid act clearly indicates that the on an earlier instance he had developed political ill-will against the complainant and also against his maternal uncle CW6 Bheemanaik. Further, the complaint also indicates that he had abused him by stating about the community and caste to which he belonged to and also he had abused about the number of votes their community possessed in his constituency. By looking in to the aforesaid aspects, at this juncture, the prima facie materials is produced to cause a grave suspicion in the mind of the court towards commission of offence, which is sufficient for framing of charge.
18.xxx
19.xxx
…When the ratio laid down in the aforesaid judgment is applied to the case on hand, it indicates that the accused had hurled abuses touching name of the caste and also the chastity of women folk of the complainant. Further the aforesaid judgment clearly indicates that mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. It is common knowledge that whenever chastity and character of women folk is assailed in view of general public, obviously, it would lead to a situation which would drive a person to commit any offence or to cause breach of public peace. Under the circumstances, the submissions of the learned senior counsel cannot be accepted at this juncture. Further the behavior of each individual with respect to provocation given is required to be appreciated in the wake of facts and circumstances of the case and further the appropriate stage would be during the course of trial. The materials which are produced before the court are sufficient to construe existence of a prima facie case for the purpose of framing of charges. Hence, I hold that there are sufficient materials to proceed against the accused at this juncture and to frame necessary charges. Accordingly, I answer Point No.1 in the Negative.
22.Point No.2 : In view of above observations on Point No.1, I proceed to pass the following;
ORDER
The application filed U/Sec.227 of Cr.P.C., by the accused Shiraj Sheikh is hereby dismissed by holding that there are materials to frame charges against him." (Emphasis added)
The concerned Court on the aforesaid reasons, finding prima facie material to try the petitioner for the offences under Section 3(1)(r) of the Act and Section 504 of the IPC, rejects the application. The rejection of which, as observed hereinabove, has driven the petitioner to this Court in the subject petition.
The learned counsel for respondent No.2 – complainant has also taken this Court through the video footage and the voice analysis by the Forensic Science Laboratory. The extract of the voice analysis and video footage is as follows:
"The Vivo mobile phone marked as D1 was subjected to Forensic acquisition using MSAB XRY ver.10.6.0 and the digital data were analyzed using forensic software MSAB XAMN 7.6.0, and Forevid ver.1.2.1.
The digital data present in the Vivo mobile phone marked as D1 was forensically analyzed for the alleged video files and their genuinity. The generated alleged video files and their details are enclosed in softcopy as Annexure A1 (In a SanDisk pendrive 32GB bearing number BM2306002390WSDCZ48-032G and its MD5 Hash value is "8c444bf5e18073ee54affe8a9c6e4690")
Opinion
1.The Vivo mobile phone marked as D1 contains 06 alleged video files; the video files details are as follows:
Sl. No. File Name MD5 Hash Value Size in MB Duration 01 VID-20230814-WA0054.mp4 6189B05e7e793353 7950c206ed5072d1 7.82 35s: 861ms 02 03 Video_ 20230812 _124522mp4 Video_ 20230812 _124617.mp4 b310516e18a795b aeeb8fdc3bea442b9 b41b4011e3b4515d 27a8fca1954b9428 111 105 53s: 461ms 50s: 562ms 04 Video_ 20230812 _124717.mp4 f7ae0f0d5cf1374
f15f93fe896a46e7
149 1mn::
12s
05 Video_ 20230812 _124858.mp4 15e513e4739f7ac8 fa679a03dce4c3e7 224 1mn:
48s
06 Video_ 20230812 _125309.mp4 0036fc45a9de728f e638e7347ad20bb5 30.6 14s:
765ms
Based on frame analysis and visual observation, the above mentioned video files are continuous and genuine."
(Emphasis added)
The issue now is, whether the abuses have been hurled in a public place and whether the abuses were intentional, which would bring in the ingredients of Section 3(1)(r) of the Act and in the presence of the victim. For this it is necessary to notice the provision. Section 3(1)(r) of the Act reads as follows:
3. Punishments for offences of atrocities.—(1)
Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— … … …
(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;
(Emphasis supplied)
Section 3(1)(r) of the Act punishes an act of intentionally insulting or intimidating, with intent to humiliate, a member of a Scheduled Caste or Scheduled Tribe in any place within public view. The ingredients of the provision being thus clear, what requires examination is, whether the complaint so registered and the material collected by the Police culminating in the charge sheet would, at least prima facie, bring the alleged acts within the four corners of Section 3(1)(r) of the Act. The summary of the charge sheet has already been extracted hereinabove. It is not a case where the accused was oblivious of the caste of the complainant or CW-1. The parties were not strangers; they were political rivals. The material on record, at this stage, would indicate that the accused was well aware that the complainant/CW-1 belonged to a Scheduled Caste. Knowledge of that circumstance, therefore, cannot prima facie be brushed aside as either absent or accidental.
The next ingredient of the afore-quoted provision of the Act is, whether the alleged insult was hurled at a place “within public view.” Here again, the complaint and the summary of the charge sheet speak with sufficient clarity. The abuses are not alleged to have been uttered in the privacy of four walls, away from the gaze or hearing of others. They are alleged to have been hurled at not one, but three different places. The genesis of the episode was a squabble concerning a banner at a political rally. The first volley of abuses is alleged to have been hurled there, followed by two further instances at two other places, all admittedly, in the presence of members of the public.
A political rally, by its very nature, is a congregation in the public domain. It is convened to be seen, heard and witnessed by a multitude. A political dais cannot be converted into a platform for caste humiliation, nor can the din of political rivalry drown the constitutional guarantee of dignity. Words uttered at such a gathering do not remain confined between the speaker and the person against whom they are directed; they travel to the gathering assembled and acquire a distinctly public character. Therefore, on the allegations as obtaining in the complaint and the charge sheet, the requirement of the act having occurred “within public view” is prima facie writ large. The second ingredient of Section 3(1)(r) of the Act is thus met.
What then remains is the crucial ingredient - the intention to insult or intimidate with intent to humiliate. At the stage of discharge, intention cannot ordinarily be dissected with the precision expected after a full-fledged trial. It has to be gathered prima facie from the words allegedly uttered, the circumstances in which they were uttered, the relationship between the parties and the material collected during investigation. Two circumstances assume significance in the case at hand: first, the alleged knowledge of the accused that the victims belonged to a Scheduled Caste; and second, the allegation that, despite such knowledge, the offending abuses were deliberately hurled against them in full public view.
The two circumstances, read together with the material collected during investigation, are sufficient, at this stage, to require the accused to face trial. The ingredients of Section 3(1)(r) of the Act, therefore, cannot be said to be absent so as to warrant discharge. The other offence alleged is the one punishable under Section 504 of the IPC. Sections 503 and 504 of the IPC read as follows:
“503.Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.
Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration
A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.
504.Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
(Emphasis supplied)
Section 504 of the IPC and Section 3(1)(r) of the Act, though operating in their respective statutory fields, have a common thread running through them - the element of intentional insult. Section 3(1)(r) of the Act, however, carries an additional and graver statutory complexion, when such intentional insult or intimidation is directed against a member of a Scheduled Caste or Scheduled Tribe with intent to humiliate him or her within public view. Section 503 of the IPC has borne interpretation by the Apex Court in the case of MOHD WAJID V. STATE OF UTTAR PRADESH1, wherein the Apex Court has held as follows:
“…. …. ….
Sections 503, 504 and 506 IPC
25.Chapter XXII IPC relates to criminal intimidation, insult and annoyance. Section 503 reads thus:
“503.Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration
A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.”
26.Section 504 reads thus:
“504. Intentional insult with intent to provoke
breach of the peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
27.Section 506 reads thus:
“506. Punishment for criminal intimidation.—
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
if threat be to cause death or grievous hurt, etc.—
and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
28.An offence under Section 503 has the following essentials:
(1)Threatening a person with any injury;
(i)to his person, reputation or property; or
(ii)to the person, or reputation of any one in whom that person is interested.
(2)The threat must be with intent;
(i)to cause alarm to that person; or
(ii)to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii)to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
29.Section 504 IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender.
30.In judging whether particular abusive language is attracted by Section 504 IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
31.Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504 IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504 IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai [King Emperor v. ChunnibhaiDayabhai, (1902) 4 Bom LR 78] , a Division Bench of the Bombay High Court pointed out that:
“To constitute an offence under Section 504 IPC it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.”
(emphasis supplied)
32.A bare perusal of Section 506 IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.
33.In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 IPC may probably could be said to have been disclosed but not under Section 504 IPC. The allegations with respect to the offence punishable under Section 504 IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR.
34.One of the essential elements, as discussed above, constituting an offence under Section 504 IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.”
…. …. ….
37.We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc. then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not.
38.In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.”
(Emphasis supplied)
If the impugned order rejecting the application for discharge is tested on the anvil of the principles laid down by the Apex Court and the material forming part of the charge sheet, interference becomes wholly unwarranted.
The case does not rest upon the solitary word of one complainant against another. The prosecution cites about 21 witnesses, of whom CW-7 to CW-21 are projected as eyewitnesses to the alleged abuses hurled against CW-1 and the complainant. The incidents are also alleged to have been captured on the video. The compact disc containing the recording forms part of P.F. No.146 of 2023, and the FSL report is said to have confirmed that the video footage contained therein pertains to the incident in question. Thus, there is ocular material, coupled with electronic material, which the prosecution seeks to prove at trial. Whether that material ultimately withstands the rigour of cross-examination is an altogether different matter; but its evidentiary worth cannot be prematurely annihilated at the stage of discharge. The submission of the learned senior counsel Sri Sandesh J. Chouta, therefore, does not merit acceptance.
The learned senior counsel has taken this Court through the chronology of events and the material on record threadbare and has sought an assessment of the statements of the eyewitnesses as though this Court was conducting a trial before the trial could commence. CW-1 is the nephew of the complainant and CW-2 is a former Member of the Legislative Assembly against whom abuses are also alleged to have been hurled. CW-1 and CW-2 are thus projected as victims of the acts alleged.
Much emphasis is laid upon the judgments of the Apex Court and this Court, which have cautioned against misuse of the provisions of the Act. There can be no quarrel with the principles enunciated therein. But a judgment is not a mantra to be mechanically chanted, divorced from the facts that gave birth to it. Precedents declaring that the provisions of the Act should not be permitted to become instruments of misuse were rendered in the peculiar factual matrices obtaining therein. They cannot become a universal passport for discharge, wherever an offence under the Act is alleged. Precedent must illuminate the facts before the Court; it cannot eclipse them. A political rally, by its very character, is a congregation in the public domain. It is convened to be seen, heard and witnessed by a multitude. Therefore, when caste-related abuses are hurled from the platform of a political rally, in the presence and hearing of members of the public, the act cannot be portrayed as one occurring within the confines of a private conversation. A political rally is perhaps one of the clearest illustrations of an act occurring “within public view”, for the very purpose of such a gathering is public communication and public participation. Words spoken from a political dais travel beyond the person against whom they are directed; they reverberate through the gathering assembled before it. Thus, if the other statutory ingredients are established— particularly, that the insult or intimidation is on account of the victim belonging to a Scheduled Caste or Scheduled Tribe— the requirement of “within public view” under the Act cannot be said to be wanting merely because the offending words were uttered in the course of a political rally.
The case at hand presents allegations of repeated caste-related abuses at three public places, beginning at a political rally; a multitude of witnesses are cited to the incidents; and electronic material, supported by an FSL report, is also placed in the prosecutorial fold. Whether the witnesses speak the truth, whether the recordings prove what the prosecution claims they prove, whether the words were uttered with the requisite statutory intention, and whether the prosecution can ultimately establish every ingredient beyond reasonable doubt are all matters that must pass through the crucible of trial.
At this juncture it is also is apposite to refer to the judgment of the Apex Court rendered in the case of SWARAN SINGH v. STATE2, wherein, it is held as follows:
“…. …. ….
24.In our opinion, calling a member of the Scheduled Caste “chamar” with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word “chamar” will of course depend on the context in which it was used.
25.A perusal of the FIR clearly shows that, prima facie, an offence is made out against Appellants 2 and 3. As already stated above, at this stage we have not to see whether the allegations in the FIR are correct or not. We only have to see whether treating the FIR allegations as correct an offence is made out or not. In our opinion, treating the allegations in the FIR to be correct an offence under Section 3(1)(x) of the Act is prima facie made out against Appellants 2 and 3 because it prima facie seems that the intent of the appellants was to insult or humiliate the first informant, and this was done within the public view.
26.Of course, it will be open to Appellants 2 and 3 to put up their defence at the trial, and the trial court may or may not accept the correctness of the allegations in the FIR. However, at this stage we cannot quash the FIR against them and the trial must proceed.
27.Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of Section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression “public place”, but instead the expression used is “in any place within public view”. In our opinion there is a clear distinction between the two expressions.
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.
…. …. ….
34.The High Court in the impugned judgment has observed (in para 16) that the question whether the appellants indeed uttered the offending words with the intention to humiliate the complainant, are matters of evidence. We fully agree with this view. Hence, we find no merit in the appeals of Appellants 2 and 3, and they are accordingly dismissed. However, the appeal of Appellant 1 is allowed, and the proceedings against him are quashed. There will be no order as to costs.”
(Emphasis supplied)
The Apex Court in the afore-quoted judgment while interpreting the phrase "in any place within public view" makes a clear distinction from the expression "public place". The Apex Court also holds that the question whether the accused appellants therein uttered the offending words with the intention to humiliate the complainant was a matter of evidence.
Therefore this Court, while exercising jurisdiction under Section 482 of the Cr.P.C., cannot convert itself into a trial Court, weigh witness against witness, sift evidence grain by grain, or pronounce upon its ultimate probative worth. Where the defence requires the Court to decipher disputed facts, assess eyewitness testimony and weigh electronic evidence, the answer lies in a trial and not in premature termination of the prosecution. The petitioner must, therefore, face the trial and establish his defence in the manner known to law. The order declining discharge suffers from no infirmity warranting interference at the hands of this Court.
The Constitution has banished untouchability and promised equality, dignity and fraternity; yet, regrettably, the poison of caste sometimes finds expression even in the conduct of those who occupy positions of political power. When a politician or their legions hurl caste-laden abuses at a member of the Scheduled Castes or Scheduled Tribes in a public place, the indignity assumes a graver dimension. It is not merely an insult directed at an individual; it is an affront to the constitutional promise of equal citizenship and an attempt to resurrect, through words of humiliation, a social hierarchy that the Constitution emphatically sought to bury. A democracy cannot permit the public square, meant to be a space of equality, to be converted into an arena of caste humiliation. Such conduct, when it satisfies the ingredients prescribed by law, must therefore be dealt with firmly, for dignity is not a concession bestowed by the powerful upon the marginalised; it is an inviolable constitutional entitlement of every citizen.
Finding no merit in the petition, the petition stands rejected.