IN THE COURT OF ADDITIONAL SESSIONS JUDGE AT
CRIMINAL REVISION APPLICATION NO. 234 OF 2003
Valjibhai Hiralal Patel, Age-65 Yrs, Religion-Hindu, Occupation-retired, Residing at, 236, Dr. Ambedkar Street, Near Futi Masjid, Dariapur, Ahmedabad.
(1) Falgun Chiman Patel, Editor, Sandesh Daily Newspaper, Rentiyawadi, Pittaliya bamba, Ahmedabad - 380 001.
(2) The State of Gujarat.
Shri P. N. Patel, learned advocate, for the opponent No. 1.
Shri M.C. Vaghela, learned APP for the opponent-State.
Shri M.C. Vaghela, learned APP for the opponent-State.
1. The revision arises out of an order dated 7-8-2003 passed by the learned Metropolitan Magistrate, Court No. 18, which order had the effect of allowing ‘c’ summary to be filed in the proceedings arising out of a complaint filed by the present applicant involving alleged commission of offence punishable under Section 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Being aggrieved by such order, the present revision has come to be filed.
2. The brief facts that are required to be narrated for the purpose of better understanding of the questions involved herein are required to be narrated as hereinafter follows:-
It appears that the opponent No. 1 is the managing editor and publisher of daily newspaper Sandesh and it appears that an offending cartoon was published in the said newspaper dated 29-7-1996 which, according to the applicant, was intended to be offensive and detrimentally affect the sentiments of the persons belonging to the scheduled castes and the scheduled tribes, inasmuch as the cartoon portrays and projects the erstwhile chief minister of Uttar Pradesh Ms. Mayawati in a derogatory fashion and the present chief minister of Uttar Pradesh being Shri Mulayamsing Yadav is projected to be abusing the said Ms. Mayawati as belonging to the scheduled caste. It is submitted that the cartoon was intended to humiliate the persons belonging to the scheduled castes and therefore, a private complaint came to be filed by the applicant. It is submitted that an order under Section 156(3) Cr. P.C. was passed by the concerned learned Magistrate and investigation was carried out by a senior police officer attached to Shahpur police station and it is submitted that in the circumstances, consequent to such investigation is carried out, the learned Magistrate thereafter surprisingly accepted the report filed by the IO that no offence appears to have been committed and the acceptance of ‘c’ summary is a clear fallacy on the part of the learned Magistrate.
(3) Shri Solanki the learned advocate for the applicant submits that the impugned order is patently illegal and is required to be set aside. It is submitted that no reasons have ben provided by the learned Magistrate which would justify the passing of the impugned order. It is submitted that the learned Magistrate has obviously misinterpreted the judgment of the Apex Court referred to on page-9 of the impugned order and it is submitted that the cartoon itself which is offensive, inasmuch as the words ‘sale, chamar’ are clearly intended to be used in an abusing manner. It is submitted that this is a clear offence prima facie made out, to have been committed by the opponent No. 1 to have published such a cartoon in his newspaper and it is submitted that in the circumstances, the impugned order could not have been passed and it is urged that the revision, therefore, be allowed.
(4) Opposing the present revision, Shri Patel, the learned advocate for the opponent No. 1, submits that the present revision is not required to be entertained, inasmuch as the present applicant has no locus to file the complaint in the first instance. It is submitted that in any case, a senior police officer holding the rank of deputy superintendent of police has investigated into the complaint upon specific order by the Court and having prima facie found that no offence having been committed, has recommended that the proceedings be brought to an end by filling the ‘c’ summary. It is submitted that it was not open for the present applicant to oppose such recommendation of the police officer and in any case, the learned Magistrate has rightly considered the report filed by the IO and has rightly come to the conclusion that no offence being made out, the proceedings were required to be brought to an end. It is submitted that in any case, the applicant cannot lodge the complaint since admittedly, the cartoon in question has projected and referred to only two persons, one being Shri Mulayamsing Yadav and the other being Ms. Mayawati, and if at all, the cartoon does make out even prima facie the commission of any offence, it cannot be open for the present applicant to lodge the complaint in the regard, It is, in fact, only the persons affected by the said cartoon, being the said Ms. Mayawati or Shri Mulayamsing Yadav, who could have any grievance with regard thereto. It is submitted that the applicant cannot, therefore, be heard to have any grievance in this regard and it is submitted that in the circumstances, there is nothing wrong, improper or illegal on the part of the learned Magistrate in having passed the impugned order and therefore, the same is not required to be interfered with and therefore, the revision rejected.
(5) It needs to be noted that having considered the rival submissions and having called for the records and proceedings of the trial court, it appears that a large number or judgment have been pressed into reliance by both the complainant, meaning the present applicant, as also the opponent No. 1. The same, in my opinion, are not required to be referred to for the simple reason that I am of the opinion that this is a fit case in which the proceedings are required to be remanded to the Court of the learned Metropolitan Magistrate for reconsidering the report in its entirety. There is, in my opinion, from the cartoon sufficient prima facie evidence as would suggest commission of an offence which would offend the sentiments of the persons belonging to the scheduled castes and/or the scheduled tribes. The Kerala High Court in a judgment delivered in the case of Rosamma Thomas & Othrs. V/s Circle Inspector of Police, Tripunithara & Othrs. as reported in 1999 Cri. L.J. 1666 has clearly laid down a ration that an offence or intention to insult or humiliate a member of the schedule tribe in a public place prima facie would make out an offence committed under Section 3(1)(x) of the Atrocities Act and the questions as to whether mere calling by caste name is an offence, whether the accused had any intention or not cannot be gone into at an early stage and an FIR cannot be quashed at the threshold. I do not find much merit in the submissions of Shri Patel that the present applicant had no locus to filed the complaint and pursue the present revision. A bare reading of the provisions contained in Section 3 of the Atrocities Act, more particularly in Section 3(1) (x) of the said Act, would make it abundantly clear that what is contemplated is an offence committed by a person with an intention of publicly humiliating the persons belonging to the scheduled castes and the scheduled tribes. There is nothing, in my opinion, which would emerge from the said provisions which would even remotely prohibit or bar a person belonging to the scheduled caste from filling a complaint with regard to such public humiliation even if he is not directly affected by the same. In my opinion, it would be necessary to reproduce the provisions contained in Section 3(1)(x) of the Atrocities Act for a better understanding thereof, which run as thus :-
3. 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 ay place within public view:
Shall be punishable with imprisonment for a term which shall not be less then six months but which may extend to five years and with fine.
In my opinion, therefore, there is no merit in the submissions made by Shri Patel in this regard. Again, it would be incorrect and inappropriate to quash the FIR at the threshold which is exactly what the impugned order has had the effect of doing. In my opinion, therefore, the impugned order is required to be reconsidered and the parties are required to be given an opportunity of reagitating their respective versions and I, therefore, pass the following order :-
The revision is allowed. The impugned order dated 7/8/2003 is quashed and set aside. The proceedings are remanded to the Court of learned Metropolitan Magistrate, Court No. 18, with direction to reconsider the application moved by the IO attached to Shahpur police station and is only after considering the facts and circumstances in light of the provisions contained in Section 3(1)(x) of the Atrocities Act, that appropriate order be passed thereupon. The revision accordingly stands disposed of.
Pronounced in the open Court today on this 31st day of January, 2005.
(P. B. Desai)
Additional Sessions Judge
Court No. 6, Ahmedabad City