Smti. Puspha Nelson v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE BIBHAS RANJAN DE CRR/60/2024 Smt. Puspha Nelson ... Petitioner Vs The State ... Respondents For the petitioner : Mr.K.Vijay Kumar For the State : Mr. Sumit Karmakar Heard on : February 27, 2025 Judgement on : February 28, 2025 BIBHAS RANJAN DE, J.

1.

This revisional application has been preferred assailing the order No. 42 dated 25.07.2024 passed in connection with Special Case No. 4 of 2019 wherein learned Special Judge, Port Blair rejected one application under Section 227 of the Code of Criminal Procedure claiming discharge of the accused from the charge under Section 3 (1) (u) of the Scheduled Castes and the Scheduled tribes (Prevention of Atrocities) Act, 1989 (for short Act 1989).

2.

One complaint was lodged before the PS Pahargaon against the accused alleging, inter alia, that the accused came to the house of the complainant (sister in law) on 10.12.2019 at about 5:30 P.M. and abused her referring to her casts i.e. Nicobarese and also abused her as 'Nicobari Junglee' and thereby accused expressed her feeling of enmity, hatred and ill-will against the members of Nicobari cast.

3.

On receipt of that complaint specific case being No. 516 of 2019 dated 11.12.2019 was registered. The case was investigated through recording statement of witnesses and by seizuring cast certificate, category certificate and Aadhar Card of the complainant. Finally charge sheet was submitted against the accused under Section 3 (1) (u) of the Act 1989.

4.

At the time of consideration of charge one application, on behalf of the accused, was filed with a prayer for discharging the accused. Learned Special Judge considering the rival contention, recorded his findings with respect to the allegation made in the written complaint that he prima facie found accusation against the accused for committing offence under Section 3 (1) (u) of the Act 1989. It was held by learned Judge that the comment made by the accused was against the complainant as well as her entire community and no publication is required to attract the provision of Section 3 (1) (u) of the Act, 1989. 5.

Mr. K.Vijay Kumar, learned counsel appearing on behalf of the petitioner has contended that the allegation of abuse was held within the premises of the complainant and in support of his contention he relied on a judgement delivered by Hon'ble Apex Court in connection with Special Leave Petition (Criminal) No. 87788779 of 2024 (Karuppudayar vsi State Rep. b y the Deputy Superintendent of Police, Lalgudi Trichy and others) decided on 31.01.2025. Mr. Vijay Kumar referred to the paragraph 9, 11, 17, 18 and 19.

6.

Per contra, Mr. Sumit Karmakar, learned Public Prosecutor has refuted the argument advanced on behalf of the petitioner by submitting that the judgement relied on behalf of the petitioner is not applicable at all in the case at hand. 7.

On careful perusal of the entire judgement passed by the Hon'ble Apex Court it has come to my notice that the Hon'ble Apex court dealt with an offence under

Section 3 (1) (r) and under Section 3 (1) (s) of the Scheduled Castes and the Scheduled tribes (Prevention of Atrocities) Act, 1989 and observed that allegation made in the FIR did not make out a case that offence is committed in public view. 8.

But in the case at hand the offence alleged is under Section 3 (1) (u) of the Act 1989 which runs as follows:

"(u) by words either written or spoken or by sings or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes;"

9.

Hon'ble Apex Court in Karuppudayar (supra) dealt with the offence under Section 3 (1) (r) and under Section 3 (1) (s) of the Act 1989 which runs as follows respectively:- "(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;"

10.

Therefore, It is clear that unlike our case under Section 3 (1) (u) Hon'ble Apex Court dealt with an offence under Section 3 (1) (r) and 3 (1) (s). 11.

On careful perusal of the materials collected in the case diary of particularly statement of one M. Kamraj recorded under Section 161 of the Code of Criminal Procedure, I, prima facie, find that he supported the allegation made in the complaint, claiming himself to be an eye witness. Moreover to constitute the offence under Section 3 (1) (u) neither the presence of public is required nor the offence is required to be committed within public view.

12.

In the aforesaid view of the matter I am unable to interfere with the order assailed in this revisional application. 13.

As a sequel, revisional application being CRR/60/2024 stands dismissed.

14.

Parties are directed to act on the website copy of this judgement duly downloaded from the official website of this Court. 15.

Parties are at liberty to communicate this order to the learned Trial Judge.

(Bibhas Ranjan De, J)