Scheduled Castes & Scheduled Tribes; Govidbhai Dhanjibhai Makwana Vs. Tarun Amrutlal Sheth [Gujarat High Court, 07-10-2016]

Penal Code, 1860 – Ss. 153, 153 (a), 153 (b) & 505 (2) – Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 – Ss. 3 [1](ix) and 3 [1] (x) – Protection of Civil Rights Act, 1955 – Ss. 7[1](c) & (d) – No prior sanction as envisaged under Section 196 [1](a)CrPC is sought by the petitioner before filing of the complaint under Section 3 [1](c) and (d) of the Civil Rights Act. Nor any of the provisions of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act are attracted in the complaint. Resultantly, present Criminal Application fails.

# Scheduled Castes & Scheduled Tribes

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA

7th October 2016

SPECIAL CRIMINAL APPLICATION No. 2851 of 2011

GOVIDBHAI DHANJIBHAI MAKWANA….Applicant(s) Versus TARUN AMRUTLAL SHETH & 1….Respondent(s) Appearance : Mr. JITENDRA MALKAN for Mrs. DHARITA P MALKAN, for Ms. KHUSHBOO V MALKAN, ADVOCATE for the Applicant(s) No. 1 Mr. MB RANA, ADVOCATE for the Respondent(s) No. 1

JUDGMENT

This writ petition, preferred under Articles 226 & 227 of the Constitution of India, calls in question the Order dated 17th September 2011 passed by the learned 3rd Additional Sessions Judge, Banaskantha at Palanpur in Criminal Revision Application No. 61 of 2009, which is impugned herein, whereby the Revision Application preferred by the petitioner against the order dated 11th August 2009 passed in Criminal Case No. 6805 of 2009 by the learned Chief Judicial Magistrate, First Class, Palanpur was rejected.

Succinctly, the facts of the present case are that on 19th December 2008, the respondent no. 1, who is an Editor, Publisher & Owner of “Rakhewal” newspaper, published an article in its daily newspaper, making derogatory remarks against the scheduled castes and scheduled tribes. Being aggrieved and dissatisfied, the petitioner preferred Criminal Case No. 6805 of 2009 before the learned Chief Judicial Magistrate, Palanpur on 11th August 2009, which eventually came to be rejected by the trial Court vide Order dated 11th August 2009. Aggrieved by the order, petitioner preferred Criminal Revision Application No. 61 of 2009 under

# Sections 397 & 398 of the Code of Criminal Procedure, 1973

[“CrPC” for short] before the Sessions Court, Banaskantha, which too came to be dismissed vide Order dated 17th September 2011 passed by the learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur, giving rise to filing of present writ petition.

Heard learned advocate Mr. Jitendra Malkan appearing with learned advocate Ms. Khusbhu V. Malkan for the applicant; learned advocate Mr. M.B Rana for the respondent no. 1 and learned APP Mr. Rutvij Oza for the respondent no.2-State of Gujarat.

It was submitted by learned advocate Mr. Jitendra Malkan appearing for the applicant that the learned Chief Judicial Magistrate, Palanpur as well as learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur have committed grave error in rejecting Criminal Case No. 6805 of 2009 by order dated 11th August 2009 and Criminal Revision Application No. 61 of 2009 by order dated 17th September 2011. That, the contents of the article written and published by the respondent no. 1 are unambiguous and derogatory against the castes other than the Brahmins. That, by publishing the article the respondent no. 1 has tried to humiliate the teachers hailing from backward classes. That, the orders passed by both the Courts below are contrary to evidence on record and bad in law. The petitioner has got an extra ordinary prima facie case as the article shows the hatred mind of the respondent no. 1 towards castes other than Brahmin. Hence, it was requested to quash and set-aside the impugned order dated 17th September 2011 passed by the learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur confirming the order dated 11th August 2009 passed by the learned Chief Judicial Magistrate, Palanpur in Criminal Case No. 6805 of 2009.

Per contra, learned advocate Mr. M.B Rana appearing for the respondent no.1 vehemently opposing the submissions made by the learned advocate for the petitioner urged that this petitioner has never approached this Court for violation and or breach of any fundamental rights, but has challenged the orders passed by the Courts below, and therefore, this petition is not maintainable under Article 226 of the Constitution of India. He has further urged that before notice was issued by the petitioner on 13th July 2009, as he is a practicing advocate, for the publication of the alleged article in the daily newspapers “Rakheval” on 19th December 2008. That, the entire proceeding was initiated by the petitioner after passing of seven months from the date of actual publication of the said article. That, the proceedings are pre-planned which shows abuse of process of law, commenced with mala fide intention. He has further submitted that the respondent no. 1 on receipt of the said legal notice on 16th September 2009 has tendered his apology in “Rakheval” newspaper saying that there was no intention by “Rakheval” or by he himself to give a slightest intention to hurt feeling of any body or to insult anybody in any manner. That, he is not the owner of the said article. That, neither he nor “Rakheval” publication agrees with the views of the author of the said article. Further, it is urged that article which was published is provided by an author of book “Sanmarganusari” – publication of Samast Mahajan Prakashan. The said book is compilation of the articles, which are already published in different leading newspapers of the State. That, no ingredients of provisions of Section 153, 153 [a], 153 [b] and Section 505 (2) IPC or Sections 3 [1](ix) and 3 [1] (x) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 or Section 7[1](c) & (d) of the Protection of Civil Rights Act, 1955

are satisfied for any offence under the said provisions are attributed. The petitioner has tried to abuse the process of law as he is also the owner, author and publisher of the fortnightly newspaper “Police Mitra”. That, another Criminal case has been registered against the respondent no. 1 at Ahmedabad, being M. Case No. 1 of 2010 with Madhupura Police Station for the same allegations and offence, as in the present petition. That, two different complaints on the same cause of action would not be maintainable. That, initially the proceedings by the petitioner is just to settle the account, being a rival publication house. That, no previous sanction as envisaged under Section 196 [1] (a) of the Code of Criminal Procedure, 1973 of the State Government or Central Government; as the case may be, was sought by the petitioner before filing of the complaint. That, no Court of law can take cognizance for the offence punishable under Section 153 (1) & 505 IPC without prior sanction from the State Government. Ultimately, it was requested by him to dismiss the present writ petition.

Learned APP Mr. Rutvij Oza appearing for the respondent no.1-State extended support to the arguments advanced for and on behalf of the respondent no.2- complainant by adding that the petitioner herein is prima facie involved in the offence, as he had published the objectionable article in daily newspaper “Rakheval” which prima facie constitute an offence, and therefore, it was requested by learned APP to dismiss the present Application.

Having heard learned advocates appearing for the respective sides and considering the submissions made as well as documents placed on the record, it appears that the disputed article as attached and annexed to this petition as “R3” is part of the book “Sanmarganusari” published by Samast Mahajan Prakashan and the said book is compilation of various articles. Prima facie, the respondent no.1 is not author of the said book, as it appears from the record. However, the respondent no. 1 on receiving a legal notice from the petitioner herein on 16th September 2009, has tendered his unconditional apology by publishing it in “Rakheval” newspapers. It appears from the above apology tendered by the respondent no.1 that there was no intention of “Rakheval” newspaper or of the respondent no. 1 to hurt the feeling of anybody or to insult any one in any manner; even though the said article was just published in the newspaper. It is further declared by the respondent no. 1 that neither the deponent nor the “Rakheval” publication agree with any of the views of the author of the said article. Here, it will be necessary to refer to a petition preferred by the Criminal Misc. Application No. 6227 of 2011 preferred by the Trust, one of the Trustees, Author, Copyright Holder and distributors of the book “Sanmarganusari” for quashment of the complaint, being C.R No. I-170 of 2011 registered with Ellisbridge Police Station, Ahmedabad dated 20th April 2011 by the respondent no. 2 therein for the offence punishable under Sections 3 [1] (ix); 3 [1] (x) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 and under Section 7 [1] (c) of the Protection of Civil Rights, 1955 read with Section 153 [A], 500, 505 [1] (3) & 120-B of the Indian Penal Code, which this Court partly allowed by quashing the complaint qua applicants nos. 2, 4, 5 & 6 therein. Further, the statement of the petitioner that on the same cause of action, as a part of strategy, another criminal case was registered against the respondent no.1 at Ahmedabad, being M. Case No. 1 of 2010 with Madhupura Police Station, Ahmedabad containing the same allegation, as have been raised in the present case, is not denied or challenged by the petitioner. It also appears from the documentary evidence produced on record that the present petitioner is also a partner of S.K Jadav Associates, a Law Office and owner, editor and publisher of a fortnightly newspaper “Police Mitra”. Being a partner of the said associate, he has initiated legal proceedings against the respondent no. 1 which prima facie appears that is abuse of process of law. The said fortnightly newsletter “Police Mitra” is also published from Banaskantha district. It also transpires that on 15th August 2009, publication was given by way of an advertisement in “Police Mitra” newspaper to plan out further strategy of legal action against the respondent no.

1. It is impressed that the entire legal proceedings initiated against the respondent no. 1 is pupating and initiated to settle the account, being a rival publication house. Further, it also transpires that before filing of the complaint; as aforestated, no previous sanction of the State Government or Central Government is taken by the petitioner, as envisaged under Section 196 [1] (a) of the Code. It also appears that on this ground and others so pleaded, the learned trial Judge of the Courts below have not considered the arguments advanced for and on behalf of the learned advocate to initiate legal proceedings against the respondent no. 1 or to take cognizance; as requested.

The Apex Court in case of

# Manzar Sayeed Khan v. State of Maharashtra & Anr., (2007) 5 SCC 1

while disposing of the appeals held that,

“..The gist of the offence under Section 153-A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and published. The matter complained of to full within the ambit of Section 153-A must be read as a whole. Once cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning”.

In case of

# Sarita Shyam Dake v. Sr. Police Inspector; Chief Administrative Officer; State of Maharashtra; Union of India; Vijay Gopal Sangare, reported in 2007 LawSuit (Bom) 869

the Bombay High Court has in its decision at paras, 7, 8, 11, 13 & 15, observed thus-

“7. Section 3(x) of The Atrocities Act provides that “whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months, but it may extend to five years and with fine”.

The provision of law comprised in Section 3(1) (x) of The Atrocities Act clearly requires that an act of insult or intimidation to humiliate a member of the Scheduled Caste should be in any place within a public view. In other words, in order that an act of insult or intimidate with intent to humiliate a member of Scheduled Caste or Scheduled Tribe should warrant proceedings under the Atrocities Act under the said provision of law, such act must have been committed in a place which is situated within a public view. It means the act should be visible and audible to a third party. If such an act takes place in a closed premises and not in presence of a third person, then such act cannot be said to be either visible or audible to public.

8) If one peruses the complaint in the case in hand, it nowhere speaks of any words having been uttered by the Petitioner in public view. On the contrary the complaint specifically discloses that the alleged words were uttered in the office premises of the petitioner and the Respondent No.5. The complaint nowhere discloses reference to the presence of any third person at the time of said incident. The complaint nowhere discloses that the words uttered were in any manner visible or audible to a third party. It also does not disclose that the incidence could be seen by any third party from outside office premises. In the circumstances, the Petitioner is justified in contending that the act in the complaint does not disclose the essential ingredients of Section 3(1)(x) of The Atrocities Act which requires incidence to be in a public view.

xxx xxx xxx

11) Section 7(1)(c) of The Civil Rights Act provides that whoever by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice “untouchability” in any form whatsoever shall be punishable with imprisonment for a term of not less than one month and not more than six months, and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

13) On plain reading of Section 7(1)(c) of the Civil Rights Act, it discloses that the offence under the said provision can be said to have been committed when a person incites or encourages any other person or class of persons or the public generally to practice “untouchability”. Merely because somebody is insulted by referring to his caste or otherwise, it cannot be said to constitute an offence under Section 7(1)(c) of The Civil Rights Act.

xx xx

15) If one peruses the complaint, it nowhere speaks about any insult to the complainant being caused by the Petitioner on the ground of untouchability. It is neither the grievance of the complainant that there is any incitement or encouragement by the Petitioner to practice untouchability nor the complainant speaks about the insult on the ground of untouchability. Being so the complaint nowhere warrants investigation in relation to the offence alleged to have been committed under Section 7(1) (c)) or (d) of the Civil Rights Act.”

As observed hereinabove, the respondent no. 1 herein is neither an author nor publisher of the book “Sanmarganusari ” which is compilation of various articles objected to by the respondent of Criminal Misc. Application No. 6227 of 2011 by filing the above referred complaint wherein this Court decided the issue on merit by partly allowing the said application. Another M. Case is also pending against the present petitioner registered with Madhupura Police Station, Ahmedabad. The respondent no. 1 has tendered his apology by publishing it in “Rakheval” newspaper. Rivalry between the petitioner and the respondent no. 1 is prima facie due to the fact that the petitioner is also Editor and Publisher as well as owner of fortnightly newsletter “Police Mitra” published and circulated in the district of Banaskantha. No prior sanction as envisaged under Section 196 [1](a)CrPC is sought by the petitioner before filing of the complaint under Section 3 [1](c) and (d) of the Civil Rights Act. Nor any of the provisions of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act are attracted in the complaint, and therefore, this Court is of the view that whatever reasons are given by the learned trial Judge below would not require any interference, warranting any disturbance in the orders impugned.

Resultantly, present Criminal Application fails. Rule discharged.

Comments