Offence Under SC/ST Act Is Made Out When Offence Is Perpetrated In Public: Allahabad HC

        In a significant development, the Allahabad High Court just recently on February 18, 2020 has pronounced explicitly in a noteworthy judgment titled “K.P.Thakur And Another Vs. State of U.P. And Another” in Application U/S 482 No. – 40418 of 2012 that for constituting an offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the alleged offence should have been committed in “public view”. The single-Judge Bench of Allahabad High Court comprising of Justice Ram Krishna Gautam has clarified in no uncertain terms that where a person is allegedly insulted for being a member of the SC/ST community behind closed doors, the SC/ST Act cannot be applied. It is an important observation and a ruling which has to be abided and adhered to unless it is overruled by a larger Bench of the Allahabad High Court or by the Supreme Court!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the entire proceeding of Complaint Case No. 1577 of 2012, under Sections 323, 504, 506 I.P.C. and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending in the Court of Judicial Magistrate, Duddhi, Sonebhadra.”

To put things in perspective, after hearing the learned counsel for the applicants, learned counsel for opposite party no. 2, learned A.G.A. for the State and perusing the record as pointed out in para 2, it is then pointed out in para 3 that, “Learned counsel for applicants argued that a departmental inquiry was pending against Vinod Kumar Tanay, wherein applicant no. 1 K.P. Thakur was Enquiry Officer and applicant no. 2 Binod Kumar was Presenting Officer. This enquiry was being hindered by Vinod Kumar Tanay by any means. He was summoned for recording of evidence in above inquiry, where he came with M.P. Tiwari, another co-worker. It was objected with a direction to M.P. Tiwari not to intervene in the proceeding of enquiry and he was asked to remain outside of the chamber of applicant no. 1, wherein enquiry was being conducted. He made obstruction. The complainant Vinod Kumar Tanay was of habit of creating hindrance in the smooth functioning by making false accusation at different stages because of being member of Scheduled Caste community. In that enquiry too he tried so, for which instant complaint was lodged by applicants to Department’s superiors as well as local authorities. This complaint, with false accusation, was got lodged before court of Judicial Magistrate, Duddhi, Sonebhadra, wherein allegation was levelled with a view to make hindrance in above departmental enquiry, wherein he was examined under Section 200 Cr.P.C. and his two witnesses (co-workers), were examined under Section 202 Cr.P.C., and on the basis of same, learned Magistrate passed impugned summoning order for offences punishable under Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of SC/ST Act, whereas no assault or abuse in a public view was said to be made by applicants nor it was ever made. The statements, recorded under Section 200 Cr.P.C. as of complainant was with no mention that this occurrence of alleged assault and abuse was made with intention to abuse or insult on the basis of complainant being member of Scheduled Caste community by present applicants, who were not member of Scheduled Caste community. The place of occurrence has been said to be chamber of applicant no. 1 that too after bolting it from inside i.e. it was not an abuse in the public view. The essential ingredients of offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) are intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. In Gorige Pentaiah Versus State of Andhra Pradesh & Others; (2008) 12 Supreme Court Cases 531, Apex Court has propounded at para 6 that a public view is the view, which is of public access. Once it is inside any house, it will not be a public view and in the case of lack of above basic ingredient, the offences of Section 3(1)(x) of the Act is not completed. The same has been propounded by Apex Court while interpreting public view in same case at para 28. In present case, the place of occurrence has been said to be chamber of applicant no. 1 which was said to be bolted from inside. Meaning thereby, that was not a public view at all. The enquiry concluded with dismissal of complainant as well as his witnesses. Applicants being officers of Northern Coalfields Limited being Controller and Head of Department of Mining, where complainant was an employee and they are to take work from him with administrative control and if such type of practice is being permitted then it will be highly impossible for administrative superiors in getting work from administrative inferiors in performance of official duties. The allegations levelled by complainant was false, baseless and under manipulation, for hindering senior officers and influencing enquiry being conducted against him. It was abuse of process of law. Hence, this application with above prayer for setting aside impugned summoning order.”

Most crucially, it is then held in para 9 that, “In present case, the complaint is by an administrative inferior against administrative superior, admittedly, who is conducting a departmental enquiry against him and he had gone there to participate in above proceeding. The Enquiry Officer is to decide as to whether Assisting Officer is to be given to employee, who is delinquent employee in above inquiry or inquiry is to be conducted in camera in Chamber. Any Tom and Harry can never be permitted to come inside, wherein the enquiry is being conducted and to participate in above enquiry, rather if any Assisting Officer is to be taken by delinquent employee; he will have to move an application before Administrative Head or Enquiry Officer for appointing and permitting any Assisting Officer to that delinquent employee and, thereafter, that Assisting Officer may take part in above Administrative Enquiry. In present case, M.P. Tiwari in his statement, recorded under Section 202 Cr.P.C., has said that he went at the place of occurrence to say the justice. Neither he was appointed as Assisting Officer nor he was permitted to take part in enquiry, but he went to that place for saying justice. He was so social worker and so a person of securing cause of justice that without following the procedure, he present himself for saying justice, though he was asked to remain out and he remained outside. The door was locked from inside. It was a Chamber of the Enquiry Officer, where Presenting Officer and Enquiry Officer were present and it can never be said to be a public view. Even if, any occurrence took place at that place, it may never be said to be a public view and it has been verified by Apex Court, mentioned as above. Hence, the very ingredient of offence punishable under Section 3(1)(x) of the Act was missing. The second aspect is that complainant in his statement recorded under Section 200 Cr.P.C. has not said that he was insulted because of being a member of Scheduled Caste community by a persons, who were not members of Scheduled Caste community. This ingredient too was missing in the statement of complainant, recorded under Section 200 of Cr.P.C. Other two witnesses, who were examined were co-workers of the same Department and they were admittedly not inside the room, when this occurrence took place and how this occurrence took place, what was precipitation time and what resulted in this occurrence, were not witnessed by those witnesses. Hence, for the same occurrence, these superiors have lodged complaint with local authorities as well as Department Heads and for the same, this complaint was filed there. What was the precipitating point, could not be determined by those witnesses. Moreso, Apex Court in Vaijnath Kondiba Khandke vs State of Maharashtra and Anr. AIR 2018 SC 2659, has propounded that while dealing with a matter, in which complaint or accusation has been lodged by administrative junior or employee against his Head of Office or administrative superior regarding their exploitation or harassment, the Court must take in mind that if such type of occurrence are being actually visualized, then it will be highly impossible for administrative superiors to take work from administrative juniors. There must be administrative authority of administrative superiors, then and then only, they will be in position to take work from junior employees and mere bald allegation of harassment and such type of exploitation are to be strictly analyzed with all care and caution. Hence, in present case, admittedly, applicants were Enquiry Officer and Presenting Officer. They were conducting a regular departmental enquiry against complainant. Meaning thereby, charge was framed and the employee complainant was charged employee. Meaning thereby, prima facie, he was delinquent employee, for which charge was framed. Preliminary inquiry stage was passed. Thereafter, departmental enquiry was being conducted and when this enquiry was conducted this fuss was created. Who created this and what was the precipitating point was to be visualized and examined by Magistrate before summoning applicants, but casually impugned order of summoning for offence punishable under Section 3(1)(x) of the Act was passed. On above facts and circumstances, as apparently offence under Section 3(1)(x) of the Act was not made out, on the basis of evidence collected in inquiry by Magistrate concerned, hence this application merits to be allowed in part.”

Finally, it is then held in the last para 10 that, “The application is partly allowed. The summoning for offence punishable under Section 3(1)(x) of the Act is hereby quashed. For rest of the offences, the prayed relief is refused.”

In conclusion, it may well be said that the Allahabad High Court through this latest judgment seeks to send an unmistakable message to one and all that offences under SC/ST Act is made out only when the offence is perpetrated in public. If it happens behind closed doors, then the SC/ST Act cannot be applied! No doubt, it has been very rightly reiterated by the Allahabad High Court in this latest judgment that just mere bald allegation of harassment and such type of exploitation are to be strictly analyzed with all care and caution. No denying it!

Sanjeev Sirohi