SC/ST Act - To Attract Section 3(1)(s), Incident Must Happen Both In A Public Place And In Presence Of Public : Bombay HC [Read Order]

The Bombay High Court on Wednesday held that insult or humiliation must take place in the presence of or in the proximity of atleast one independent public witness in order for the offence to qualify as atrocity under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

Justice AM Badar granted anticipatory bail to one Salim Shaikh accused under Sections 354, 440, 277, 143, 504 and 506 of the Indian Penal Code as well as under Sections 3(1)(s), 3(1)(w)(i)(ii) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 2015.

Case Background

According to the prosecution case, on May 12, 2018, first Informant Rajeshri along with her husband Vilas and their children went to the parking place of the Sai Ashray Housing society where they lived and at that time, the appellant accused Salim Shaikh, his wife Mumtaz and other family members abused Rajeshri and her husband Vilas in the name of their caste. This incident, according to the prosecution, took place in a place within public view as one Neha Khosla had witnessed that event.

Advocate Gayatri Gokhale appeared on behalf of the accused and vehemently argued that the said case was false as the accused and his family were not present on the said spot at that time. She submitted that all the other co-accused in the case have obtained bail. Also, while hearing the anticipatory bail application filed by Mumtaz Shaikh, wife of the accused, High Court had observed that frequent quarrels were taking place because the accused's family was the only Muslim family living in the said society, Gokhale said.

She further argued that the accused and his family members are singled out by other residents belonging to Hindu religion, and therefore, several FIRs have been lodged against the appellant accused and his family members. Also, because of this conduct on the part of other residents and in order to comply directions of the court, the accused and his family members are now constrained to reside in some other house, by leaving the apartment owned by him in Sai Ashray Complex, where the alleged incident took place.

To substantiate her contention that the accused and his family were not present at the time of the incident, a CD containing CCTV footage was produced before the Investigating Officer.

Whereas, the APP and the informant's lawyer opposed the bail plea and relied upon the statement of Neha Khosla to substantiate allegations under Sections 3(1)(s) and 3(1)(w) of the said act.

Judgement

Court noted –

"Statement of Neha Khosla shows that she is not an independent public witness. She is friend of the prosecuting party."

Further, Court examined the act itself and impugned provisions therein-

As far as the offence punishable under Section 3(1)(s) is concerned, offence of atrocity is made out only when the same takes place "in any place within public view." Referring to the law laid down in Pradnya Pradeep Kenkare and Ors. vs. State of Maharashtra and Balu s/o. Bajirao Galande vs. State of Maharashtra and Another, Court observed-

"It is, thus, clear that the word "public" not only relates to the location defined by the word "place" but also to the subjects witnessing the incidence of insult or intimidation to the member of scheduled castes or scheduled tribe. Presence of both ingredients is absolutely necessary for making out the offence of atrocity.

Abuses, insult or humiliation must take place in presence of or in the proximity of atleast one independent public witness."

Justice Badar also noted that as per the informant's statement, Shrutika had disclosed to her that the appellant/accused caught hold of her hand and threatened her. However, Rajeshri's statement does not make out a case that the accused had intentionally touched Shrutika and that touch was sexual in nature. On the contrary, even if what the First Informant has stated is accepted, then the appellant/accused was threatening Shrutika. Similar is the statement of Shrutika Sirsath. The touch, even if it is assumed was there, it was for threatening Shrutika. It was not of a sexual nature. Similarly, the words and acts alleged were also not of a sexual nature.

In view of the above, the Court held that bar to grant anticipatory bail under Section 18 of the SC/ST Act was not applicable in the case, and allowed the application.

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