Sanjay Singh v. Govt of NCT of Delhi

1. The present bail applications have been filed under Section 438 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicants seeking anticipatory bail in FIR No. 05/2021 registered under Sections 3(1)(r)/3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act) and Section 506 IPC at Police Station New Usmanpur, Delhi.

2. Learned counsel for the applicants submits that while the applicant-Sanjay Singh is the father, the applicant-Suraj Singh is his son. He submits that the applicants in the present case are falsely implicated on account of an underlying dispute with respect to dishonour of cheque. She further submits that while the initial cheque was for Rs.1,00,000/-, the complainant has altered the same by changing the figure from Rs.1,00,000/- to Rs.4,00,000/-.

3. Learned counsel for the applicants has further 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. She further submits that in pursuance of grant of interim protection by this Court vide orders dated 17.03.2021, the applicants have joined the investigation. Lastly, she submits that the applicants are not involved in any other case.

4. Learned APP for the State duly assisted by learned counsel for the complainant has opposed the bail applications. She submits that as per the complaint, casteist remarks were uttered in a place within public view as it has been stated by the complainant that the incident dated 05.10.2020 was witnessed by two independent persons, namely Ravinder Parshad Verma & Arun Sharma. She further submits that the casteist remarks were uttered in the presence of aforesaid two witnesses and the applicants are not entitled to the benefit of anticipatory bail.

5. The Status Report has been placed on record.

6. I have heard 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 CrPC, 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, which read as under: “3. Punishments for offences of atrocities.- (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.