Asmathunnisa vs State Of A.P & Anr

Asmathunnisa ... Appellant

Versus

State of A.P. represented by the

Public Prosecutor, High Court of A.P.,

Hyderabad & Another ... Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. The appellant is the Headmistress in the Little Star

School located at Gayatri Hills, Yousufguda, Hyderabad has

preferred this appeal against the impugned judgment and

order passed by the High Court of Judicature of Andhra

Pradesh at Hyderabad in Criminal Petition No.2127 of 2006.

2 3. It may be pertinent to mention that her husband Mohd.

Samiuddin and the appellant are being prosecuted for an

offence under section 3(1)(x) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short

`the 1989 Act').

4. The appellant filed a petition before the Andhra Pradesh

High Court under section 482 of the Code of Criminal

Procedure for quashing the proceedings in Crime No.50 of

2006, Police Station Jubilee Hills, Hyderabad. The High

Court, by the impugned judgment, has declined to quash the

proceedings.

5. The brief facts which are necessary to dispose of this

appeal are recapitulated as under:

A complaint was filed against the appellant and her

husband Mohd. Samiuddin on 09.02.2006 before the Sub-

Inspector of Police, Jubilee Hills Police Station, Hyderabad,

which reads as under:

"I am to inform you that just besides my house a

building bearing No.8-2-293/82/B/60, in 1+3

storied building, a school is being run from 1 to 10th

class. I have informed the management of the

school with regard to sound pollution. I have also

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submitted representation to the DEO, Hyderabad.

Since the authorities have not taken any action in

this regard, I approached the Hon'ble High Court of

A.P., and obtained an interim order on 03.10.1995.

While the DEO trying to implement the interim

orders, the Little Star School management, Gayathri

Hills, has created more sound pollution. When we

were not able to stay at our houses due to sound

pollution, we invited the press people and expressed

our grievances on 08.02.2006. The same news was

published in the Newspapers on 09.02.2006. After

reading the news, the School management, Smt.

Asmatunnisa and her husband namely Md.

Samiuddin came to my house at 9.00 a.m., when I

was not there. Md. Samiuddin abused in filthy

language by naming caste and asked my wife, R.

Sridevi, without even looking that she is a lady, that

where did she sent me and also said that "AA

LAMBADODU", "let him come home today we will

settle the matter with him." Smt. Asmatunnisa also

abused my wife. Smt. Anuradha, who is staying

opposite to my house was the eye witness for the

incident."

The significant part of this complaint is that the offending

words were admittedly spoken by Mohd. Samiuddin, the

husband of the appellant. He abused Sridevi's husband in

filthy language by naming caste and said that "AA

LAMBADODU", "let him come home today we will settle the

matter with him." At that time, admittedly Sridevi's husband

was not present.

4 6. The appellant has also been implicated because she had

accompanied her husband to the house of the complainant.

Admittedly, the appellant did not utter offending words. It

would be relevant to set out relevant provisions of law as

under:

7. Section 3 sub-section (1) sub-section (x) of the 1989 Act

is reproduced as under:

"3. Punishments for offences of atrocities. - (1)

Whoever, not being a member of a Scheuled Caste

or a Scheduled Tribe,-

xxx xxx xxx

intentionally insults or intimidates with intent to

humiliate a member of a Scheduled Caste or a

Scheduled Tribe in any place within public view;"

8. Learned counsel for the appellant submitted that:

A. According to the complaint, no offence under the

aforesaid section can be made out against the appellant

because the ingredients of the offence are not made out. In

the complaint so called offending words were not even

attributed to the appellant. It is alleged that the appellant

merely accompanied her husband and the offending words

were spoken by the husband of the appellant, therefore, the

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appellant in this appeal by no stretch of imagination can be

held guilty of the offence under the section 3(1)(x) of the 1989

Act.

B. According to the section, any word which intentionally

insults or intimidates with intent to humiliate a member of a

Scheduled Caste or a Scheduled Tribe is an offence under the

1989 Act. In the instant case, the husband of Sridevi was not

present when the offending words, if any, were spoken by the

husband of the appellant. In absence of real aggrieved person

present at that point of time, no offence under the said section

can be made out against the appellant.

C. It is not established that the words were spoken by a

person who was not a member of Scheduled Caste or

Scheduled Tribe.

D. The entire incident is alleged to have taken place at the

residence of Sridevi and not in any place within public view.

E. None of the ingredients of this offence are present in the

instant case. Even if the contents of the complaint in its

entirety are taken as correct and true even then no offence is

made out against the appellant.

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9. In this connection, learned counsel for the appellant has

placed reliance on a judgment of the Kerala High Court in E.

Krishnan Nayanar v. Dr. M.A. Kuttappan & Others 1997

Crl. L.J. 2036. The relevant paragraphs of this judgment are

paras 12, 13 and 18. The said paragraphs read as under:

"12. A reading of Section 3 shows that two kinds of

insults against the member of Scheduled Castes or

Scheduled Tribes are made punishable - one as

defined under sub-section (ii) and the other as

defined under sub-section (x) of the said section. A

combined reading of the two sub-sections shows

that under section (ii) insult can be caused to a

member of the Scheduled Castes or Scheduled

Tribes by dumping excreta, waste matter, carcasses

or any other obnoxious substance in his premises

or neighbourhood, and to cause such insult, the

dumping of excreta etc. need not necessarily be

done in the presence of the person insulted and

whereas under sub-section (x) insult can be caused

to the person insulted only if he is present in view of

the expression "in any place within public view".

The words "within public view", in my opinion, are

referable only to the person insulted and not to the

person who insulted him as the said expression is

conspicuously absent in sub-section (ii) of Section 3

of Act 3/1989. By avoiding to use the expression

"within public view" in sub-section (ii), the

Legislature, I feel, has created two different kinds of

offences an insult caused to a member of the

Scheduled Castes or Scheduled Tribes, even in his

absence, by dumping excreta etc. in his premises

or neighbourhood and an insult by words caused to

a member of the Scheduled Castes or Scheduled

Tribes "within public view" which means at the time

of the alleged insult the person insulted must be

present as the expression "within public view"

indicates or otherwise the Legislature would have

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avoided the use of the said expression which it

avoided in sub-section (ii) or would have used the

expression "in any public place".

13. Insult contemplated under sub-section (ii) is

different from the insult contemplated under sub-

section (x) as in the former a member of the

Scheduled Castes or Scheduled Tribes gets insulted

by the physical act and whereas is the latter he gets

insulted in public view by the words uttered by the

wrongdoer for which he must be present at the

place.

xxx xxx xxx

18. As stated by me earlier the words used in sub-

section (x) are not "in public place", but "within

public view" which means 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. In my view, the entire

allegations contained in the complaint even if taken

to be true do not make out any offence against the

petitioner".

10. 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.

11. Learned counsel for the appellant also submitted that, in

any event, the words were not attributed to the appellant. She

merely accompanied her husband to that place even according

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to the allegation in the complaint and she did not utter

offending words. According to appellant, in the facts and

circumstances of this case, Section 3(1)(x) of the 1989 Act is

not attracted.

12. Learned counsel for the appellant has also drawn our

attention to a judgment of this Court Gorige Pentaiah v.

State of Andhra Pradesh & Others (2008) 12 SCC 531. The

relevant paragraph of this judgment is as under:

"6. .. According to the basic ingredients of Section

3(1)(x) of the Act, the complainant ought to have

alleged that the appellant-accused was not a

member of the Scheduled Caste or a Scheduled

Tribe and he (Respondent 3) was intentionally

insulted or intimidated by the accused with intent

to humiliate in a place within public view. In the

entire complaint, nowhere it is mentioned that the

appellant-accused was not a member of the

Scheduled Caste or a Scheduled Tribe and he

intentionally insulted or intimidated with intent to

humiliate Respondent 3 in a place within public

view. When the basic ingredients of the offence are

missing in the complaint, then permitting such a

complaint to continue and to compel the appellant

to face the rigmarole of the criminal trial would be

totally unjustified leading to abuse of process of

law.

13. This Court, in a number of cases, has laid down the

scope and ambit of the High Court's power under section 482

of the Code of Criminal Procedure. Inherent power under

9 section 482 Cr.P.C. though wide have to be exercised

sparingly, carefully and with great caution and only when

such exercise is justified by the tests specifically laid down in

this section itself. Authority of the court exists for the

advancement of justice. If any abuse of the process leading to

injustice is brought to the notice of the court, then the Court

would be justified in preventing injustice by invoking inherent

powers in absence of specific provisions in the Statute.

14. The law has been crystallized more than half a century

ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC

866 wherein this Court has summarized some categories of

cases where inherent power can and should be exercised to

quash the proceedings. This Court summarized the

following three broad categories where the High Court would

be justified in exercise of its powers under section 482:

(i) where it manifestly appears that there is a

legal bar against the institution or continuance

of the proceedings;

(ii) where the allegations in the first information

report or complaint taken at their face value

and accepted in their entirety do not constitute

the offence alleged;

(iii) where the allegations constitute an offence but

there is no legal evidence adduced or the

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evidence adduced clearly or manifestly fails to

prove the charge."

15. In Smt. Nagawwa v. Veeranna Shivalingappa

Konjalgi and Others (1976) 3 SCC 736, according to the

court, the process against the accused can be quashed or set

aside :

"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".

16. This court in State of Karnataka v. L. Muniswamy &

Others (1977) 2 SCC 699, observed that the wholesome power

under section 482 Cr.P.C. entitles the High Court to quash a

proceeding when it comes to the conclusion that allowing the

proceedings to continue would be an abuse of the process of

11

the court or that the ends of justice requires that the

proceedings ought to be quashed. The High Courts have been

invested with inherent powers, both in civil and criminal

matters, to achieve a salutary public purpose. A Court

proceeding ought not to be permitted to degenerate into a

weapon of harassment or persecution. In this case, the court

observed that ends of justice are higher than the ends of mere

law though justice must be administered according to laws

made by the Legislature. This case has been followed in a large

number of subsequent cases of this court and other courts.

17. In Janta Dal v. H.S. Chowdhary and Others (1992) 4

SCC 305 the court observed as under:

"131. Section 482 which corresponds to

Section 561-A of the old Code and to Section 151 of

the Civil Procedure Code proceeds on the same

principle and deals with the inherent power of the

High Court. The rule of inherent powers has its

source in the maxim "Quadolex aliquid alicui

concedit, concedere videtur id sine quo ipsa, ess uon

potest" which means that when the law gives

anything to anyone, it gives also all those things

without which the thing itself could not exist.

132. The criminal courts are clothed with

inherent power to make such orders as may be

necessary for the ends of justice. Such power

though unrestricted and undefined should not be

capriciously or arbitrarily exercised, but should be

exercised in appropriate cases, ex debito justitiae to

do real and substantial justice for the

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administration of which alone the courts exist. The

powers possessed by the High Court under Section

482 of the Code are very wide and the very

plenitude of the power requires great caution in its

exercise. Courts must be careful to see that its

decision in exercise of this power is based on sound

principles."

18. In Dr Raghubir Sharan v. State of Bihar (1964) 2 SCR

336, this court observed as under

"... Every High Court as the highest court exercising

criminal jurisdiction in a State has inherent power

to make any order for the purpose of securing the

ends of justice .... Being an extraordinary power it

will, however, not be pressed in aid except for

remedying a flagrant abuse by a subordinate court

of its powers ...."

19. In the said case, the court also observed that the

inherent powers can be exercised under this section by the

High Court (1) to give effect to any order passed under the

Code; (2) to prevent abuse of the process of the court; (3)

otherwise to secure the ends of justice.

20. In Connelly v. Director of Public Prosecutions 1964 AC

1254, Lord Ried at page 1296 expressed his view "there must

always be a residual discretion to prevent anything which

savours of abuse of process" with which view all the members

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of the House of Lords agreed but differed as to whether this

entitled a Court to stay a lawful prosecution.

21. In State of Haryana & Others v. Bhajan Lal & Others

reported in (1992) Suppl.1 SCC p.335, this court had an

occasion to examine the scope of the inherent power of the

High Court in interfering with the investigation of an offence

by the police and laid down the following rule: [SCC pp. 364-

65, para 60: SCC (Cri) p. 456, para 60].

"The sum and substance of the above deliberation

results in a conclusion that the investigation of an

offence is the field exclusively reserved for the police

officers whose powers in that field are unfettered so

long as the power to investigate into the cognizable

offences is legitimately exercised in strict

compliance with the provisions falling under

Chapter XII of the Code and the courts are not

justified in obliterating the track of investigation

when the investigating agencies are well within their

legal bounds as aforementioned. Indeed, a

noticeable feature of the scheme under Chapter XIV

of the Code is that a Magistrate is kept in the

picture at all stages of the police investigation but

he is not authorised to interfere with the actual

investigation or to direct the police how that

investigation is to be conducted. But if a police

officer transgresses the circumscribed limits and

improperly and illegally exercises his investigatory

powers in breach of any statutory provision causing

serious prejudice to the personal liberty and also

property of a citizen, then the court on being

approached by the person aggrieved for the redress

of any grievance, has to consider the nature and

extent of the breach and pass appropriate orders as

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may be called for without leaving the citizens to the

mercy of police echelons since human dignity is a

dear value of our Constitution."

22. In Bhajan Lal (supra), this court in the backdrop of

interpretation of various relevant provisions of the Code of

Criminal Procedure under Chapter XIV and of the principles of

law enunciated by this court in a series of decisions relating to

the exercise of the extraordinary power under Article 226 of

the Constitution of India or the inherent powers under Section

482 Cr.P.C., gave the following categories of cases by way of

illustration wherein such power could be exercised either to

prevent abuse of the process of the court or otherwise to

secure the ends of justice. Thus, this court made it clear that

it may not be possible to lay down any precise, clearly defined

and sufficiently channelised and inflexible guidelines or rigid

formulae and to give an exhaustive list to myriad kinds of

cases wherein such power should be exercised:

(1) Where the allegations made in the first

information report or the complaint, even if they are

taken at their face value and accepted in their

entirety do not prima facie constitute any offence or

make out a case against the accused.

(2) Where the allegations in the first information

report and other materials, if any, accompanying

the FIR do not disclose a cognizable offence,

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justifying an investigation by police officers under

Section 156(1) of the Code except under an order of

a Magistrate within the purview of Section 155 (2) of

the Code.

3) Where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in

support of the same do not disclose the commission

of any offence and make out a case against the

accused.

(4) Where, the allegations in the FIR do not

constitute a cognizable offence but constitute only a

non-cognizable offence, on investigation is permitted

by a police officer without an order of a Magistrate

as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or

complaint are so absurd and inherently improbable

on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient

grounds for proceeding against the accused.

(6) Where there is an express legal bar engrafted in

any of the provisions of the Code or the concerned

Act (under which a criminal proceedings is

instituted) to the institution and continuance of the

proceedings and/or where there is a specific

provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the

aggrieved party.

(7) Where a criminal proceeding is manifestly

attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and

with a view to spite him due to private and personal

grudge."

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23. This court in Zandu Pharmaceutical Works Ltd. &

Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC

122 observed thus:-

"It would be an abuse of process of the court to

allow any action which would result in injustice and

prevent promotion of justice. In exercise of the

powers, court would be justified to quash any

proceeding if it finds that initiation/ continuance of

it amounts to abuse of the process of court or

quashing of these proceedings would otherwise

serve the ends of justice. When no offence is

disclosed by the complaint, the court may examine

the question of fact. When a complaint is sought to

be quashed, it is permissible to look into the

materials to assess what the complainant has

alleged and whether any offence is made out even if

the allegations are accepted in toto."

24. A three-Judge Bench of this Court in Inder Mohan

Goswami v. State of Uttaranchal (2007) 12 SCC 1 (wherein

one of us, namely, Dalveer Bhandari, J. was the author of the

judgment) has examined scope and ambit of Section 482 of the

Criminal Procedure Code. The Court in the said case observed

that inherent powers under Section 482 should be exercised

for the advancement of justice. If any abuse of the process

leading to injustice is brought to the notice of the court, then

the court would be fully justified in preventing injustice by

invoking inherent powers of the court.

17 25. In Devendra and Others v. State of Uttar Pradesh

and Another (2009) 7 SCC 495, this court observed as

under:-

"There is no dispute with regard to the

aforementioned propositions of law. However, it is

now well settled that the High Court ordinarily

would exercise its jurisdiction under Section 482 of

the Code of Criminal Procedure if the allegations

made in the first information report, even if given

face value and taken to be correct in their entirety,

do not make out any offence. When the allegations

made in the first information report or the evidence

collected during investigation do not satisfy the

ingredients of an offence, the superior courts would

not encourage harassment of a person in a criminal

court for nothing."

26. In State of A.P. v. Gourishetty Mahesh and Others

(2010) 11 SCC 226, this court observed that the power under

section 482 of the Code of Criminal Procedure is wide but has

to be exercised with great care and caution. The interference

must be on sound principle and the inherent power should not

be exercised to stifle the legitimate prosecution. The court

further observed that if the allegations set out in the complaint

do not constitute the offence of which cognizance has been

taken by the Magistrate, it is up to the High Court to quash

the same in exercise of its inherent power under section 482 of

the Code.

18 27. In a recent decision in M. Mohan v. The State 2011 (3)

SCALE 78 this Court again had an occasion to consider the

case of similar nature and this court held that if all the facts

mentioned in the complaint are accepted as correct in its

entirety and even then the complaint does not disclose the

essential ingredients of an offence, in such a case the High

Court should ensure that such frivolous prosecutions are

quashed under its inherent powers under section 482 of the

Cr.P.C.

28. When we apply the ratio of the settled principles of law to

the facts of this case, then, in our considered opinion, the

High Court ought to have exercised its jurisdiction under

section 482 of the Code of Criminal Procedure and quashed

the complaint qua the appellant only to prevent abuse of the

process of law.

29. Consequently, we set aside the impugned judgment

passed by the High Court and quash the complaint qua the

appellant in Crime No.50 of 2006, Police Station Jubilee Hills,

Hyderabad, Andhra Pradesh.

19 30. This appeal is accordingly allowed and disposed of.

...........................................J.

(DALVEER BHANDARI)

...........................................J.

(DEEPAK VERMA)

New Delhi;

March 29, 2011