Gireeshkumar, A. and Another vs State of Kerala and Another

Mr. Justice S.S. Satheesachandran

Petitioners in the above two Crl.M.Cs. are the accused in Crime No. 231 of 2011 of Vanchiyoor Police Station, Thiruvananthapuram registered

for the offence u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short ""the Act""). Crl. M.C. No. 1365

of 2011 is filed by the 2nd and 3rd accused (A-2 and A-3) and Crl.M.C. No. 1517 of 2011, by the 1st and 4th accused (A-1 and A-4) in the

aforesaid crime, and both petitions are moved u/s 482 of the Code of Criminal Procedure (for short ""the Code""), for quashing the criminal

proceedings against them. Annexure 3 is the FIR registered in the crime. The aforesaid crime was registered on a complaint given by additional

2nd respondent/de facto complainant to the Commissioner of Police, Thiruvananthapuram. Annexure 1 is, in fact, a communication sent to the

above police officer through post. The de facto complainant, a member of the Scheduled Caste, retired from service as the Head of the

Department, Inspector General (Registration) Department, on superannuation on 31-3-2011. Two days later on 2-4-2011 the office of the

Inspector General (Registration) and premises was sprinkled with cow-dung water, to remove the impurities caused by the de facto complainant, a

member of the Scheduled Caste, previously, holding the post of Inspector General, and, the above incident though brought to the notice of the new

incumbent, the Head of Department, who has taken charge of that office, no action has been taken, was the grievance raised in the communication

sent to the Senior Police Officer. With the endorsement of the recipient, Commissioner of Police, to register a case on the basis of Annexure I for

the offence u/s 3(1)(x) of the Act, with Annexure 2 communication, it was sent over to the Sub Inspector of Police, Vanchiyoor Police Station. On

receipt of the above communication with the original of Annexure 1, crime under Annexure 3 was registered for the offence u/s 3(1)(x) of the Act.

In the investigation of the crime, the accused persons were identified and arrested and, later, they have been enlarged on bail. Investigation

disclosing that offences u/s 3(1)(ii) of the Act and Section 451 of the Indian Penal Code too had been committed by the accused, Annexure 4

report was filed before the Magistrate informing that investigation is being continued incorporating such offences as well in the crime.

In both the above Crl.M.Cs., the de facto complainant has been subsequently impleaded as additional 2nd respondent. He has filed separate

counter-affidavit with some annexures in both petitions and is represented by different counsel in the respective petition.

The Investigating Officer has also filed a statement, in which, among others, it is stated thus:

............................ the accused persons, who are not members of the SC/ST Community, intentionally insulted and to humiliate the complainant A.

K. Ramakrishnan who belongs to Scheduled Caste Community and retired from service as I.G., Registration on 31-3-2011 and after he leaving

from his office, at about 8.30 p.m. the accused persons sprinkled cow-dung water in the office room, premises and official car which he was used

and celebrated as ''Purification Ceremony'' and thus committed offence under relevant sections of IPC and SC/ST (POA) Act.

A site inspection was conducted in the office premises of the I.G. (Registration) with the assistance of the scientific expert from Forensic Science

Laboratory and some substances detected, presumably from the sprinkling of cow-dung water, were collected from the premises and sent over to

the above Laboratory for analysis, according to the Investigating Officer. Three among the four accused in the case had been arrested and later

enlarged on bail when the statement was filed on 27-2-2012. The investigation, it is stated, has revealed that all the four accused conjointly

participated in the commission of the offence imputed with the common intention to humiliate the de facto complainant, as against whom they had

previous official enmity and ill-will. Though the de facto complainant in Annexure 1 alleged that the ""purification ceremony"" in the office where he

worked as the Head of the Department, after his retirement on 31-3-2011 was carried out on the morning of 2-4-2011, in the investigation of the

crime registered, it is stated the aforesaid acts are stated to have been done by the accused persons at about 8.30 p.m. on 31-3-2011, the date on

which the de facto complainant left service.

I heard the learned counsel for the petitioner, respective counsel appearing in the two petitions for the common additional 2nd respondent (de

facto complainant) and also the learned Public Prosecutor.

None of the two offences imputed against the petitioners under the Act nor any offence under the IPC on the allegation set forth in Annexure 3

FIR based on Annexure 1 complainant of the de facto complainant would lie, is the submission of the learned counsel for the petitioners to contend

that the continuation of the criminal proceedings against the petitioners in the present case is nothing but an abuse of process of the court. Adverting

to the allegation imputed that cow-dung water was sprinkled in the office premises on retirement of the de facto complainant, a member of the

Scheduled Caste, to remove the impurities left behind by him as the Head of the Department, it is contended by the counsel that even assuming and

accepting it in its totality, that will not constitute an ''atrocity'' under the Act, nor does it make out an offence u/s 3(1)(ii) of that Act. Similarly, to

constitute an offence u/s 3(1)(x) of the Act, the learned counsel submitted that the atrocity committed against a member of the Scheduled Caste by

any person other than belonging to such Caste or Tribe must be in public view in the presence of such victim. No such atrocity being imputed by

the allegations raised, and as there is total and complete absence of factual basis to constitute the offences under Sections 3(1)(ii) and 3(1)(x) of

the Act on the imputations levelled against the petitioners/accused, the criminal proceedings launched against them are liable to be quashed, is the

submission of the counsel. Per contra, the respective counsel appearing for the de facto complainant in the two petitions separately, both of them,

strenuously contended that the investigation revealed that the sprinkling of cow-dung water was done in the office premises on the night of 31-3-

2011, a few hours before midnight. Petitioners, some of the staff members of the Registration Department, did such purification ceremony in the

office premises to remove the impurities left behind by the de facto complainant as the Head of the Department since he happened to be a member

of the Scheduled Caste. The acts done by the petitioners constitute an atrocity as defined under the Act and they are liable to be prosecuted for

the offences under Sections 3(I)(ii) and 3(1)(x) of the Act and also the penal offence proceeded against them, is the submission of the counsel to

contend that exercise of inherent power canvassed for by the petitioners/accused to quash the criminal proceedings is not warranted nor will be

permissible in the case. The investigation of the crime is practically over, and in view of the orders passed by the court in the petitions filing of the

final report is kept back by the Investigating Officer, is the further submission made by the counsel.

Some arguments were made before me by the learned counsel appearing for the additional 2nd respondent/ de facto complainant in Crl. M.C.

No. 1517 of 2011 that till) midnight on 31-3-2011, the de facto complainant continued in service. Any purification ceremony done in the office

premises till he left service would constitute an atrocity under the Act, is the further submission of the counsel. The merit of that submission need be

looked into only if it is found that the facts and circumstances presented and the allegations raised in the case constitute offences under the Act, for

which the petitioners are being proceeded against.

Petitioners, who are staff members of the Registration Department, on account of their official animosity and ill-will towards the de facto

complainant, a member of the Scheduled Caste, who was the Head of the Department as Inspector General, Registration, on his retirement from

service on superannuation on 31-3-2011, as part of a purification ceremony to remove the impurities left behind by the 2nd respondent in the

office, sprinkled cow-dung water in the office premises, is the gist of the accusation imputed to constitute the offences under Sections 3(1)(ii) and

3(1)(x) of the Act and also the penal offence u/s 451 of the IPC. Petitioners/accused are stated to be not members of the SC/ST, and as such, the

acts done by them as imputed above constitute atrocities against the member of tire Scheduled Caste, is the case canvassed for, to prosecute them

for the offences referred to above under the Act.

Section 3(1)(ii) of the Act reads thus:

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

***

(ii) acts with intent to cause injury, insult or annoyance to any men her of the-Scheduled Caste or a Scheduled Tribe by dumping excreta, waste

matter, carcasses or any other obnoxious substance in his premises or neighborhood.

The crucial question, in the given facts of the case and in the nature of the allegations raised, is whether sprinkling of cow-dung water, assuming that

it was done as part of ''purification ceremony'' in the office premises would constitute an atrocity against a member of the Scheduled Caste covered

under the aforesaid offence. Though cow-dung is an animal waste, it cannot be considered as ""excreta"" covered under the aforesaid Section of the

Act. The word ""excreta"" used in Section 3(1)(ii) of the Act is in relation to human excreta and not of any animal waste. A reference to the

Statement of Objects and Reasons accompanied to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Bill, 1989 gives a

clear indication that it is dumping of human excreta with intend to cause injury, insult or annoyance to any member of the Scheduled Caste or

Scheduled Tribe in his premises or neighborhood is included as an atrocity, and thus, offence under the aforesaid Section. The Act has been

intended to eradicate the evil of serious crimes committed against the members of the Scheduled Caste/Scheduled Tribe for various historical,

social and economic reasons denying them number of civil rights. The Objects and Reasons spell out the circumstances surrounding the enactment,

in which, among others, it has been observed thus;

........................ Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste

persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and

rape of women belonging to the Scheduled Castes and the Scheduled Tribes..................... A special Legislation to check and deter crimes against

them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.

It is not every act or insult or humiliation that is meted out to a member of the SC/ST by a person not a member of SC/ST that will come within an

atrocity under the Act but only such acts constituting one or the other offences u/s 3 of the aforesaid Act. The ingredients of the offence u/s 3(1) (ii)

of the Act can be stated thus:

(i) A person not being a member of Scheduled Caste or Scheduled Tribe,

(ii) with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe,

(iii) dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood.

The word ""excreta"" used in the aforesaid sub-section is to be understood as human excreta only but not of any expulsion from any animal, like

cow-dung. Then also, whether on the allegation imputed in the case the aforesaid offence is made out has to be examined. Dumping of excreta,

waste matter, carcasses or any other obnoxious substance should be in his (member of SC/ST) premises or neighborhood. A Government office

even if it is under the control of the Head of the Department cannot be considered as ""his premises"" but only that of the Government. The words

his premises"" having regard to the next accompanying words ""or neighborhoods"" spells out that what is contemplated is land or building under the

occupation of the member of the Scheduled Caste and the term ''neighborhood'' close-by surrounding to the land or building possessed or

occupied by a member of Scheduled Caste/Scheduled Tribe. If that be so, sprinkling of cow-dung water in the office premises even assuming that

it was done before midnight on 31-3-2011, which of course is not the case of the de facto complainant, cannot constitute an offence u/s 3(1)(ii) of

the Act. Though the learned counsel for the de facto complainant, who appeared for him in Crl. M.C. No. 1517 of 2011 relied on Union of India

(UOI) Vs. George, to contend that the de facto complainant continued in service till midnight of the date of his superannuation, and as such, the

office occupied by him would also come under the term ""his premises"" u/s 3(1)(ii) of the Act. I do not find any merit in that submission. The

decision referred to dealt with a question over the retirement benefits of an employee, and, in that context, it was held that his service continued till

the midnight of the date of his superannuation from service. Not only that the Government office premises cannot be considered as the premises of

a Government servant or that of the Head of the Department, the de facto complaint, on his superannuation, having already handed over the charge

to his successor, in the working hours of the day, by no stretch of imagination, can contend that such office continued to be ''his premises'' till

midnight of that day. The allegation imputed against the petitioners with respect to sprinkling of cow-dung water in the office premises as part of a

purification ceremony whether it was done before midnight on 31-3-2011, the date of superannuation of the de facto complainant or later on 2-4-

2011 as imputed in his Annexure 1 complaint, will not satisfy the ingredients to constitute the offence u/s 3(1)(ii) of the Act.

Does the aforesaid act imputed against the petitioners/accused constitute an offence u/s 3(1)(x) of the Act is next to be examined. Section 3(I)

(x) of the Act reads thus:

Punishments for offences of atrocities.--(1) Whoever, not being a member of a Scheduled Caste 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;

Ingredients of the aforesaid offence are thus:

(i) A person not being a member of Scheduled Caste or a Scheduled Tribe,

(ii) intentionally insulting or intimidating,

(iii) with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe,

(iv) in any place within public view,

If the above four ingredients are satisfied, then, the person who does such acts commits an offence covered by the aforesaid clause u/s 3 of the

Act. The de facto complainant has no case that the humiliation or insult with respect to the purification ceremony, sprinkling of cow-dung water in

the office premises, was done in his presence. The Supreme Court in Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High

Court of A.P., Hyderabad and Another, analysing and interpreting the offence u/s 3(1)(x) of the Act has held that to constitute an offence as

atrocity covered under that clause the insult or intimidation of the member of the SC/ST by a person not belonging to that Caste or Tribe must be

in his presence within public view. The interpretation placed over the words ""within public view"" u/s 3(1)(x) of the Act by this Court in E. Krishnan

Nayanar v. Dr. M. A. Kuttappan and others 1997 (1) KLT 512 that it is referable only to the person insulted and not to the person who insulted

him, found approval by the Supreme Court in Asmathunnisa''s case, cited supra, and the observations made thereof in paragraph 10 of the

decision read thus:

......... 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.

So, in the present case where the allegations do not spell out nor is there any case that the humiliation or insult was meted out to the de facto

complainant within public view, in his presence, which is an essential ingredient to constitute the aforesaid offence of atrocity, prosecution of the

petitioners for that offence is unsustainable.

The offence u/s 451 of the IPC has also been imputed against the petitioners with the offence of atrocity under Sections 3(1)(ii) and 3(1)(x) of

the Act in the case. Learned counsel for the petitioners would submit that the offence u/s 451 of the IPC has no independent existence otherwise

than on the allegations raised constituting the offence of atrocity under the Act. I do not agree. The crime has been registered for the offences under

the Act on the allegation that some purification ceremony was conducted in the office premises by sprinkling cow-dung water to remove the

impurities left behind by the de facto complainant, a member of the Scheduled Caste after he left service on superannuation. Even assuming that the

allegations do not constitute an ''atrocity'' against a member of the Scheduled Caste or Scheduled Tribe by a person not belonging to that Caste or

Tribe, if the investigation reveals that some penal offence or any other offence arising out of ''untouchability'', under the Protection of Civil Rights

Act, 1955 is borne out on the materials gathered, prosecution for such offences can certainly be proceeded with against the offenders thereof. So

much so, it is futile to contend that the penal offence against the petitioners u/s 451 of the IPC has no independent existence otherwise man on the

allegations imputed of the offence of atrocity under the Act.

In the above circumstances, quashing of the criminal proceedings as such against the petitioners is not allowable, but, only quashing of the

proceedings against them for the offence of atrocity under the Act. Criminal proceedings against the petitioners for the offence of atrocity under

Sections 3(1)(ii) and 3(1)(x) of the Act in Crime No. 231 of 2011 are quashed invoking the inherent jurisdiction of this Court u/s 482 of the Code.

It is made clear that the investigating agency can proceed further and complete the investigation of the crime and file a final report in the case u/s

173(2) of the Code in case any offence under the IPC or any other Statute is made out against the petitioners or any of them for prosecuting them.

Crl.M.Cs. are allowed in part as indicated above.