NEUTRAL CITATION
R/SCR.A/8632/2019 ORDER DATED: 10/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8632 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 8277 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 8441 of 2019
==========================================================
DIGO @ DIGVIJAY SOMSINH RAJPARMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
JAYDEEP H SINDHI(9585) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/08/2023
COMMON ORAL ORDER
1. Since the issues involved in the present petitions are identical in nature, Criminal Misc. Application No.8632 of 2019 is considered as leading matter.
2. The present petition is filed for seeking following main reliefs:-
"[B] YOUR LORDSHIPS may be pleased to quash and set-aside the impugned FIR dated 24/08/2019, bearing C.R. No. 1 31 of 2019 registered with Jetpur Pavi Police Station, District: Chhotaudepur for the offences punishable under Sections 143, 147, 148, 332, 427, 323, Page 1 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined 504, 506(2) of I.P.C. read with Section 3(2)(va), 3(1)(R) (S) Atrocities Amendment Act, 2015 as the same being gross abuse and misuse of process of law, and in the interest of justice;
[C] Pending admission, hearing and final disposal of the present petition YOUR LORDSHIPS may be pleased to pass order staying further proceedings of the impugned FIR dated 24/08/2019, bearing C.R. No. I - 31 of 2019 registered with Jetpur Pavi Police Station, District: Chhotaudepur for the offences punishable under Sections 143, 147, 148, 332, 427, 323, 504, 506(2) of I.P.C. read with Section 3(2)(va), 3(1)(R) (S) Atrocities Amendment Act, 2015;
[D] An ex-parte ad interim relief in terms of prayer (C) above may kindly be granted;"
3. The impugned F.I.R. is lodged against the group of persons under the provisions of Sections 143, 147, 148, 332, 427, 323. 504, 506(2) of the Indian Penal Code, 1860 and Sections 3(2)(va) and 3(1)(R)(S) of the Atrocities Amendment Act, 2015.
4. At the time of issuance of the notice on 30.8.2018 in Special Criminal Application No.8277 of 2019, this Page 2 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined Court has passed the following order:
1. The learned advocate for the petitioners does not press this petition qua the offence under the provisions of the Indian Penal Code.
2. Prima facie, it appears that required ingredient of the offence punishable under Section 3 of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocity) Act is that there should be averments to the effect that the accused person does not belong to or member of the SC/ ST Castes. Therefore, considering the decision rendered in the case of Georige Pentaiah v/s. State of Andra Pradesh reported in 2008 (12) SCC 531, present petition deserves consideration.
3. Issue notice to the respondents, making it returnable on 28.11.2019. Learned A.P.P. Mr.Pranav Trivedi waives service of notice for the respondent - State.
4. Meanwhile, no coercive steps shall be taken against the petitioners. However, the investigation may proceed further in accordance with law. Direct service, qua respondent No.2, through the concerned police station, is permitted."
5. In view of the aforementioned order, the present petition is not pressed qua the offences punishable under the provisions of Indian Penal Code. Therefore, the Page 3 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined petitions are considered under the provisions of the Atrocities Amendment Act, as alleged in the F.I.R. only.
6. Brief facts as per the case of the applicant in this application are as such that on the occasion of Janmashtami, the complainant, who is a constable, was on duty patrolling along with two other constables with his private swift car. While they were in the Moti Bazar Area, they encountered residents engaging in playing cards and gambling activities. Upon noticing the presence of the officers, the individuals involved swiftly dispersed and fled from the said scene. After a period of time, the crowd reassembled and began throwing stones at the officers, resulting in the shattering of both the front and rear glass of their car. The crowd then proceeded to engage in arguments and verbal abuse directed at the officers. Consequently, the officers decided to leave for the police station, with the crowd following closely behind them. It is further the case of the petitioner in this petition are as such that upon arriving at the police station, accused Nos. 1 and 2 physically assaulted the complainant by grabbing his collar, subjecting him to a beating, tearing his T-shirt, and using derogatory Page 4 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined remarks related to his caste. Following this, accused Nos. 3 to 12, along with a larger crowd consisting of approximately 100 to 150 individuals, proceeded to verbally abuse the complainant and issued threats him with dire consequences. Hence, the present petition is preferred.
7. Heard learned advocate Mr. P.P. Majmudar for the applicant in Special Criminal Application Nos. 8277 & 8441 of 2019 and Mr. Jaydeep Sindhi, learned advocate appearing for the applicant in Special Criminal Application No.8632 of 2019, Mr. Soaham Joshi, learned Additional Public Prosecutor (APP) for the respondent No.1 - State as well as the complainant - Police. 8.1 Learned advocate Mr. P.P. Majmudar as well as Mr. Jaydeep Sindhi, learned advocates appearing for the applicant(s) have submitted that on bare reading of the impugned F.I.R., no ingredients of the offences under the provisions of the Atrocities Amendment Act are satisfied. They have submitted that the complaint is filed by giving name of some of the individuals from big gathering by police personnel, who as per the F.I.R. was Page 5 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined patrolling along with others and found that some persons were playing with cards and doing gambling activity and therefore, they tried to caught them. Subsequently, members of the gathering attacked the complainant, using abusive language and causing damage to their vehicles. Therefore, the offence is invoked under the provisions of the Indian Penal Code as well as the Atrocities Amendment Act, 2015, but no ingredients of the Atrocities Amendment Act, 2015 are satisfied and more particularly, the group of the persons would not be knowing about the caste of the police personnel. Furthermore, they highlight that the incident occurred suddenly and without any specific attribution to a particular person, thereby suggesting that no offense can be established against any individual. They have contended that, as per Sections 3(2)(va) and 3(1)(R)(S) of the Atrocities Amendment Act, 2015, the incident should have occurred in a public place.
8.2 The advocates additionally point out that the impugned F.I.R. indicates that the incident took place with the intent to intentionally insult or intimidate a member of the SC/ST category, but they argue that Page 6 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined these ingredients are not satisfied. They have drawn attention to the judgment of the Hon'ble Apex Court in the case of Gorige Pentaiah versus State of Andhra Pradesh, reported in (2008) 12 SCC 531, wherein the accused persons' caste was not disclosed. 8.3 They have placed reliance upon the judgments of the Hon'ble Apex Court in the cases of (i) Gorige Pentaiah (supra), and (ii) Hitesh Verma versus State of Uttarakhand and Another reported in 2020 SCC online (SC) 907. He has also relied on the judgment of the Co- ordinate Bench of this Court in the case of Dhirabhai Kodarbhai Khant & Others versus State of Gujarat and Another rendered in Special Criminal Application No.2824 of 2016 dated 5.5.2016, and has submitted that these judgments are consisting almost identical facts and the impugned F.I.R. does not disclose any offence qua the Atrocities Amendment Act, and also does not satisfied necessary ingredients as required under the law. They have prayed that the petitions be allowed, citing the Hon'ble Apex Court's ruling in the case of State of Haryana V/s Bhajan Lal, reported in AIR 1992 SC 604, and have contended that continuing with such Page 7 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined proceedings would amount to an abuse of the process of law, subjecting the petitioner(s) to harassment.
9. In contrast, Mr. Soaham Joshi, learned Additional Public Prosecutor (APP) for the respondent No.1 - State has strongly objected the contentions raised by the learned advocates for the petitioner(s) and has contended that prima facie there is specific allegation made against all the accused persons and when huge mob is gathered and complaint is lodged against the members of such mob by giving some specific names in the complaint and by giving specific version about the occurrence of incident, prima facie, ingredients under the provisions of the Atrocities Amendment Act are attracted. He has also submitted that such contentions raised by the petitioner can be tested at the time of trial. He has further submitted that this Court should not exercise the powers under Section 482 of the Criminal Procedure Code, which should be exercised very sparingly, more specifically, considering the fact that provisions of the Atrocities Amendment Act are of specific statute. Therefore, he has prays to dismiss the petition(s). 10.1 I have considered the rival submission raised at the Page 8 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined bar. Additionally, I have considered the tenor of F.I.R. It is revealed that prima facie, the F.I.R. is registered under the under the stipulations of both the Indian Penal Code and the Atrocities Amendment Act. Qua the Indian Penal Code, the present petition(s) is not pressed and hence the provisions of the Indian Penal Code are not taken into account in this context. 10.2 It is relevant to refer the provisions of Sections 3(2) (va) and 3(1)(R)(S) of the Atrocities Amendment Act, as under:
"3(2)(va) Commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine;
3(1)(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; 3(1)(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within Page 9 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined public view;"
10.3 Furthermore, considering the aforementioned sections that have been invoked, it becomes evident that the impugned First Information Report (F.I.R.) lacks a specific allegation regarding the individual who made the statement, i.e., the petitioner's caste. Additionally, there is no explicit reference to utterances that would trigger the application of any provisions within the Atrocities Amendment Act, as claimed in the F.I.R. Moreover, throughout the entirety of the impugned F.I.R., there is no disclosure made about the caste of the accused person(s). This lack of disclosure is an essential, in line with the judgment of the Hon'ble Apex Court in the case of Gorige Pentaiah versus State of Andhra Pradesh reported in (2008) 12 SCC 531, more particularly Paras : 5 to 8 and 12 thereof, which read as under :
"5. Learned counsel appearing for the appellant submitted that even if all the allegations incorporated in the complaint are taken as true, even then, no offence is made out under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to Page 10 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined as "the Act") and under Sections 447, 427, 506 of the Indian Penal Code. As far as Section 3(1)(x) of the Act is concerned, it reads as under :
"3(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 any place within public view."
6. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.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 accused-appellant was not a member of the Scheduled Caste or a Page 11 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 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.
7. Similarly, we find that the ingredients of Section 506 of the Indian Penal Code are totally absent in the complaint. In the complaint it is not even mentioned that the accused had intimidated or threatened the complainant or any one else. In absence of basic ingredients of the section in the complaint, no case under section 506 IPC can be sustained. Section 506 reads as under :
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
8. "Criminal intimidation" has been Page 12 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined defined in Section 503 which reads as under :
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
12. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised :
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of Page 13 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined court, and
(iii) to otherwise secure the ends of justice.
Inherent powers under 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."
10.4 It is also fruitful to refer the judgment of the Hon'ble Apex Court in the case of Hitesh Verma versus State of Uttarakhand and Another reported in 2020 SCC online (SC) 907, it is held in paragraphs 11 to 15, 16 and 18, as under:
"11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted Page 14 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under:
"3(1)(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;"
12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view".
13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-
economic conditions of the Scheduled Castes Page 15 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.
14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh and Ors. v. State through Standing Counsel and Ors. Page 16 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023
NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the Page 17 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined
13. The offence under Section 3(1)
(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights.
Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a Page 18 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it Page 19 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private p13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights.
Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to Page 20 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.lace but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons Page 21 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined or private bodies."
15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."
16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, Page 22 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.
18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."
10.5 It is also fruitful to refer the jjudgment of the Co- ordinate Bench of this Court in the case of Dhirabhai Page 23 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined Kodarbhai Khant (supra), whereby F.I.R. was filed against a mob by the Police Personnel, invoking the provisions of the Atrocities Amendment Act in conjunction with the Indian Penal Code, within an almost identical factual scenario. The pertinent paragraphs of that judgment are 2, 3, and 7 to 9, as outlined below:
"2. It is the case of the prosecution that the complainant, namely Mr. Dineshkumar Kantibhai, Unarmed Police Constable, Buckle No. 707, on 24.03.2016, lodged a complaint in relation to an incident that took place on 23.03.2016, at the time of lighting holi at village Nana Vadadala. Some of the accused got infuriated and the mob had man-handled the police personnel by using derogatory words and also had caused injuries, which during the course of medical treatment resulted into death of one of the injured persons.
3. It is emphasized by the learned Advocate, Mr. Mangukiya, that the entire reading of the FIR does not reveal offence punishable under the Atrocities Act. According to him, under Section 3(1)(x) of the Atrocities Act, insult or intimidation needs to be in public view.
The clause (v) of sub-Section (2) of Section 3 of the Act Page 24 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined provides that any offence under the Indian Penal Code if committed, punishable with imprisonment for a term of 10 years or more against a person or property of the Scheduled Castes or Scheduled Tribes on the gro1. At the outset, learned Advocate, Mr. Mangukiya, appearing for the petitioners, submits that he DOES NOT PRESS this petition so far as the offence under the provisions of the Indian Penal Code are concerned in the complaint being I-C.R. No. 22 of 2016, lodged with Lunawada Police Station and the challenge, in this petition, is restricted to the offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act ('The Atrocities Act', for short) only.und that such persons belongs to such community, it shall be punishable with imprisonment for life and with fine and that is not the case, here. It is, therefore, urged that FIR qua these provisions need to be quashed.
7. This Court has examined the complaint and the statements of the witnesses. The only person, who belongs to the Scheduled Castes or the Scheduled Tribe is the complainant, who is also a police personnel and he, except, stating that the mob and some of the present petitioners (accused), who are named by him, abused him while they were also armed with lethal weapons. However, there does not appear to be any Page 25 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined utterances much less in the direct public view, as required under Section3(1)(x) of the Atrocities Act. It is1. At the outset, learned Advocate, Mr. Mangukiya, appearing for the petitioners, submits that he DOES NOT PRESS this petition so far as the offence under the provisions of the Indian Penal Code are concerned in the complaint being I-C.R. No. 22 of 2016, lodged with Lunawada Police Station and the challenge, in this petition, is restricted to the offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act ('The Atrocities Act', for short) only. not the case that the offence is committed against the complainant or others because they belong to the Scheduled Castes or the Scheduled Tribes.
8. This Court is conscious of the fact that offence under the IPC are serious in nature, and therefore, it is also specifically inquired with the IO, as to whether there is any material which would indicate that any utterances by the accused, which would amount to insult or humiliation to the members of the Scheduled Castes or the Scheduled Tribes as alleged in the FIR get revealed and as held by the Apex Court in the case of "ASMATHUNNISA VS. STATE OF A.P." (Supra).
Page 26 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023
NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined
9. The words "in any place but within public view" have been interpreted by Apex Court holding that the public must view the person being insulted for which he must be present and no offence on the allegation under the said section gets attracted, if, the person is not present. There is nothing on the record to indicate that humiliating words had been, as alleged in the complaint, were uttered by the petitioners, herein, thereby, attracting the provisions of Section 3(i) x) of the Atrocities Act. In the opinion of this Court, therefore, the incident in question does not attract any of the provisions of the Atrocities Act. Deceased as the officer recording complaint has stated in his statement, as an injured person, that complainant was humiliated, whereas, in fact, those words are missing in the complainant's version totally, who belongs to the Scheduled Castes / Scheduled Tribes." 10.6 Furthermore, considering the fact that on bare reading of the F.I.R., no ingredients under the provisions of the Atrocities Amendment Act can be applied in the facts and circumstances of the present case, lodging of such F.I.R. under such provision in the present facts of the case will amount to abuse of process of law by the Police Authority. Hence, no fruitful purpose would be served in continuing this proceeding arising pursuant to Page 27 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined impugned F.I.R. resulting into harassment to the accused(s) in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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 of myriad kinds of cases wherein such power should be exercised.
Page 28 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023
NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined (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, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
Page 29 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023
NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined (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 ground 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 proceeding 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."
10.7 In light of the aforementioned discussions, I am of the opinion that this is a fit case where this Court Page 30 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023 NEUTRAL CITATION R/SCR.A/8632/2019 ORDER DATED: 10/08/2023 undefined should exercise the inherent powers under Section 482 of the Criminal Procedure Code, 1973 by quashing the impugned F.I.R. qua the Atrocities Amendment Act to prevent the abuse of process of law.
11. Accordingly, the present captioned petition(s) are allowed with the aforesaid extent.
12. The impugned F.I.R. dated 24.08.2019, bearing C.R. No.I 31 of 2019 registered with Jetpur Pavi Police Station, District: Chhotaudepur as well as consequential proceedings arising out of the impugned F.I.R. are hereby quashed and set aside qua the Atrocities Amendment Act.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 31 of 31 Downloaded on : Sun Sep 17 01:02:11 IST 2023