Casteist remarks during phone call, away from public view, not an offence under SC/ST Act: HC

Justice Harnaresh Singh Gill passed the order on May 14 on a plea challenging the framing of charges against two persons from Kurukshetra who allegedly made casteist remarks over mobile phone against their village head.

"Merely uttering such wrong words in the absence of any public view does not show any intention or mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime) to humiliate the complainant who besides being Sarpanch, belongs to Scheduled Caste community".

"It would not thus, ipso-facto, constitute acts of commission of offence, which are capable of being taken cognizance under the SC and ST Act, 1989", said the judge.

The counsel for the petitioners had argued that the allegations made against the petitioners do not fall within the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the telephonic call is not in a public view.

Justice Gill, while allowing the plea, observed, "To constitute the offence under the (SC/ST) Act, it must be alleged that the accused intentionally insulted or intimidated with an intention to humiliate a member of Scheduled Caste or Scheduled Tribe in any public place within public view".

"In the present case, it is alleged that the offence has been committed by the petitioners by using the caste-based remarks over a mobile phone call to the informant, or a member of Scheduled Castes, of which there are no records.

"Once it is admitted that the alleged conversation over the mobile phone was not in a public gaze nor witnessed by any third party, the alleged use of caste words cannot be said to have been committed within the public view", the Judge said.

The penal provisions are to be given a "strict construction" and if any of the ingredients are found lacking, it would not constitute an offence under the SC/ST Act, Justice Gill said in his order.

On the complaint of village head Rajinder Kumar, an FIR was registered in October 2017 under the provisions of the IPC and SC/ST (Prevention of Atrocities) Act, 1989, in which the complainant alleged that Sandeep Kumar and Pardeep, the petitioners, allegedly used casteist slurs against him during a conversation on mobile phone.

The complainant asked them not to use derogatory words and later handed over the phone to one Devi Dayal, who also told them to stop abusing, the FIR stated.

The complainant also alleged that the duo also threatened to kill him. Later, a charge sheet against the two accused was submitted after which a court in Kurukshetra ordered framing of charges against them a year ago.

The accused then moved the High Court here and submitted that as the telephone call was not in public view and therefore the allegations against them do not fall within the provisions of the SC/ST Act, which, however, was contested by the complainant.

The counsel for the petitioners had also alleged that the case was a reprisal for the complaint filed by the father of one of the accused against the village head and Dayal, following which the panchayat had to return a grant of Rs 7 lakh for construction of a dharamshala.

The judge said, "There is a lot of material on record to indicate that Jasmer Singh father of Pardeep Kumar (one of the accused) had raised finger towards the working of respondent No. 2 (village head) as Sarpanch and also against Devi Dayal and this cannot be ignored that on the application of said Jasmer Singh, grant of Rs 7 lakh had to be returned by the Gram Panchayat."

The judge clarified, "It is a settled law that if two views are possible and one gives rise to suspicion only, as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused, and at that stage it is not to be seen whether the trial will end in conviction or acquittal".