The main legal point established is that for an offence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to be established, the person insulted must be present at the time of the insult, and the actions must amount to practising untouchability under Section 7(1)(d) of the Protection of Civil Rights Act, 1955.

Petitioner is the sole accused in Crl.M.P. No. 1355 of 1996 pending on the file of the Special Judge for the trial of offences for the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for short, Act 33/1989. The proceedings before the Special Judge came to be initiated on a complaint filed by the 1st respondent and the learned Special Judge by his order dated 14-10-1996 took cognizance for the offence under Section 3(i)(x) of Act 33/1989 and also for an offence under Section 7(1)(d) of the Protection of Civil Rights Act, 1955. A true copy of the said order is seen filed as Annexure-A to this Crl.M.C.

2. The proceedings came to be initiated as stated above against the petitioner, on an allegation that while the petitioner was contesting the by-election to the Kerala Legislative Assembly from the Thalassery Assembly Constituency a convention of the Left Democratic Front was convened on 20-9-1996 in the evening at the Town Bank Auditorioum, Thalassery, as part of the election programme and that during the course of the speech by the petitioner he made the following remark :

(Vernakular Matter is omitted)

and a free translation of the said Malayalam statement is : "The other thing, that Harijan, one Kuttappan, he was dancing on the table. This was what Nayanar stated quite contemptuously." According to the 1st respondent, the petitioner made this statement deliberately with an intention to insult him in public view and therefore it is an offence punishable under Section 3(i)(x) of Act 33/89. It is further alleged in the said complaint that the conduct of the petitioner will amount to practising untouchability or an action arising out of untouchability and hence under Section 7(1)(d) of the Protection of Civil Rights Act, 1955. A true copy of the complaint is seen annexed to this Crl.M.C. as Annexure-B.

3. The sworn statement of the 1st respondent was recorded by the learned Special Judge which is annexed as Annexure-C to this petition. The learned Special Judge also recorded the statement of two other witnesses. No. 1 has stated :

(Vernakular Matter is omitted)

and a free translation of the statement is as follows : "There is one M. A. Kuttappan, that Harijan M.L.A. he climbed over the table and was dancing. Is this the democratic manners of Antony ?" Another witness, who was examined stated as follows :

"(Vernakular Matter is omitted)"

and a free translation of the said statement is as follows : "The other thing, that Harijan Kuttappan. (He) climbed over the table and was dancing in the Legislative Assembly".

The learned Special Judge took cognizance for the offence under Section 3(i)(x) of Act 33/1989 and Section 7(1)(d) of the Protection of Civil Rights Act, 1955 against the petitioner and directed registration of the complaint as calendar case. Summons were directed to be issued to the petitioner. Aggrieved by the said order of the learned Special Judge the present Crl.M.C. is filed with a prayer to quash the proceedings initiated against him.

4. Counsel for the petitioner in support of the prayer, inter alia, contended that the proceedings against the petitioner have to be quashed as the allegations made against the petitioner even if they are taken to be true do not make out offences either under Section 3(i)(x) of the Act 33/1989 or under Section 7(1)(d) of the Protection of Civil Rights Act, 1955. He submitted that the statement alleged to have been made by the petitioner was not made in the presence of the 1st respondent and hence it will not attract Sub-section (x) of Section 3 of Act 33 of 1989 in view of the expression "in any public view" used in the old Sub-section as contra-distinguished with the expression "in a public place". It is his contention that public view means any public sight for which the 1st respondent must have been present at the time when the petitioner made the said statement and admittedly as the 1st respondent was not present the said statement will not attra