NEUTRAL CITATION
R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18506 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAYANSINH CHHATRASINH GOHIL & 10 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BN LIMBACHIA(3454) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8
MR AMIT N CHAUDHARY(5599) for the Respondent(s) No. 2
MR BHARGAV PANDYA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/08/2023
ORAL JUDGMENT
1. This is an application filed under Section 482 of the Criminal Procedure Code (for short, 'Cr.P.C.') for quashing and Page 1 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined setting aside the private complaint bearing Criminal Case No.3174 of 2014 (then Criminal Inquiry No.50 of 2011) filed on 10.6.2011 by the Respondent No.2 - complainant before the learned Chief Judicial Magistrate, Bharuch, wherein, learned Court, vide an order dated 30.07.2014 had issued the process under Section 204(1)(B) of 'Cr.P.C.'.
2. Brief facts arising from the petition are as under: 2.1 Respondent No.2 - original complainant filed complaint against the present applicants before the learned Chief Judicial Magistrate, Bharuch for the offence punishable under Sections 323, 504, 506(2), 427, 440 read with Section 114 of the Indian Penal Code and Section 3(1)(X) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is alleged in the complaint that on 9.2.2011, the son of the complainant was on his way for his job around 11.30, at that point of time, petitioner No.1, namely, Nayan Gohil, was washing his car in the front side of the complainant's house. As due to the wash of his Page 2 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined car, the pool of water, done near the house of the complainant, the son of the complainant, namely, Hitesh had instructed that as his mother is paralytic and no one is in the house who can clean the said pool of water and may cause injury due to the slipping, he had instructed not to wash the car. Present applicant Nos. 1 to 4, had used the abusive words with regard to the caste of the complainant and assaulted the complainant and the son Hitesh thereafter accused No.1 had called the other relatives who had came with weapon in their hand and looking to them, the complainant and the son had hideen themselves in the house. However, due to havoc created by all the accused, the complainant and the son was frightened and approached the Soneri Mahel Police Station and gave an application being No.59 of 2011 to the Police Inspector of that Police Station, however, no any actions were taken. Thereafter, the representation was made to the District Police Superintendent on Page 3 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined 23.3.2011. It is further alleged in the compliant that on 23.03.2011, the present applicant No.1 has filed an FIR being I-C.R.No.57 of 2011 before the Bharuch Police 'A' Division Police Station wherein, complainant and his son were arrested and after releasing, they had taken shelter in the Hotel between 24.03.2011 to 31.03.2011. Thereafter, when they returned to the house, again threats were administered by the applicant No.2 and applicant No.4 on 4.4.2011 at 2.35 hours and even prior to that also on 2.4.2011 and 3.4.2011, threats were issued, to point of knife on the complainant, again written compliant was filed on 4.4.2011 to Soneri Mahel Police Station but no actions were taken by the concerned police station. Due to continuous harassment and the threats issued by the accused, the petitioner's written complaint was filed before the higher officer including the Chief Minister. Thereafter on 15.4.2011, the damage was caused to the Wagnor car of the complainant and the dirty water Page 4 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined was thrown towards the house of the complainant. It is further alleged that the house hold articles were stolen, which was lying outside of the house by the accused persons and also thrown poisonous powder in the water tank of the complainant with regard to the same also, compliant was lodged on 29 th May, 2011, which was also remained unattended. With the aforesaid allegations, the private complaint was filed alleging that offence under Section 323, 504, 506, 427, 440, 114 of the Indian Penal Code and Section 3(1)(X) of the Atrocities Act.
3. Learned Court after recording the verification of the complainant and his son has called for the Report from the Dy.S.P. under Section 202 of Cr.P.C. vide an order dated 10.6.2011.
4. Pursuant to the directions issued by learned Magistrate, concerned Dy.S.P. recorded the statement Page 5 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined of the neighbors as well as complainant and his family members and submitted the Report that in fact, the complainant had assaulted the present applicant No.1 i.e. Nayansinh Gohil and caused injury and fracture on his both hands and for that FIR was lodged before the Bharuch city 'A' Division Police Station being C.R.No.I- 57 of 2011 for the offence punishable under Sections 323, 325, 506(2), 114 of Indian Penal Code and Section 135 of the Bombay Police Act on 23.03.2011. That due to the injury, the applicant No.1 had taken the treatment as an indoor patient from 23.3.2011 to 2.4.2011 and the Certificate was also collected by the Dy.S.P. while inquiring the case pursuant to the order passed by learned Magistrate. It is further revealed in the Report that that statement of the persons who are residing in the same society, which are recorded, namely, Vithal Jivrajbhai and Rekhaben widow of Vrajlal Vasava, Maniben widow of Mansukh Govind who stated that there was some altercation between Page 6 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined the complainant and the applicant Nos.9 to 11 with regard to pool of water near house of complainant and due to the same, the applicant No.1 was assaulted by the complainant and his son on 23.3.2011 with Dhariya and stick and to save the skin, private compliant filed under Atrocities Act and IPC against the present applicants. It is further revealed during the inquiry that complainant and his son both are of quarrelsome nature and having problems with all neighbors. That due to the FIR, which was lodged by the present applicants on 23.03.2011, they hidden themselves in the Hotel Sunrise for the period between 24.3.2011 to 31.03.2011. However, as the complainant wants to pressurize the present applicant, the Report dated 1.8.2011 filed by the Dy.S.P. (SC & ST) Cell , Bhrauch is part of compilation at page No.34. Learned Court considering the Report and the statements recorded by the Dy.S.P. had issued summons under Section 204 (1)(B) on the ground that Page 7 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined as no actions were taken by the police officer on the applications of the complainant, to prove the case and to produce the evidence in defence, the order issuing of process was passed on 30.7.2014, which is the subject matter of challenge before this Court.
5. Heard learned advocate Mr.B.N.Limbachia, for the applicants, Mr.Amit Chaudhary, learned advocate for Respondent No.2 - original complainant and Mr.Bhargav Pandya, learned APP for the Respondent- State.
6. Mr.Limbachia, learned advocate submitted that learned Judge ignored the aspect that FIR was lodged by the present applicants before Bharuch City 'A' Division Police Station as the applicant No.1 was mercilessly beaten by the complainant and his son, namely, Hitesh and caused injury with Dhariya and sticks which resulted into fracture on both hands and Page 8 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined due to the same, the applicant No.1 was operated from 23.3.2011 to 2.4.2011 and thereafter also complications were arisen therefore he was re- operated in the year 2012. Learned advocate, Mr.Limbachia, further submitted that the FIR was ultimately culminated into the charge-sheet and at present, trial of criminal case is at crucial stage where the complainant is remaining absent and against him, arrest warrant was issued on 14.8.2023. Mr.Limbachia, learned advocate further pointed out that observations made by the learned Court while issuing the process under Section 204 of Cr.P.C. ignored the merits or demerits of the case by the learned Judge and only with a view to give chance to prove the case to both sides, process was issued without observing the single line on merits of the case.
7. Mr.Limbachia, learned advocate further submitted that Dy.S.P.(SC and ST) Cell, Bhrauch also submitted a Page 9 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined Report after recording the statement of the independent witnesses which speaks voluminous things of the complainant. However, ignoring the same, impugned order was passed issuing process. In fact, before issuing process, learned Judge ought to have ascertained the fact that whether the complainant had valid ground calling accused person of issuing process or not. However, on the baseless complaint, process was issued by the learned Judge without observing any facts of the case. Learned advocate, Mr.Limbachia, further submits that applicant No.2, 4, 6, 11 are lady accused and applicant Nos.3,5,and 6 are sons and daughter suffering from various ailments and wrongly roped into the offence so as to cause mental and physical harassment to the old aged person. Mr.Limbachia, learned advocate further submitted that all the applicants are law abiding citizens. Applicant Nos.2 and 3 are daughters of applicant No.1 who is a retired principal in the high Page 10 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined school. Applicant Nos.5 and 6 are also retired teachers and studying far away from the house of the applicant NO.1.
8. Mr.Limbachia, learned advocate further submitted that all the accused are law abiding persons and with a view to pressurize, this false complaint came to be filed.
9. Mr.Limbachia, learned advocate further relied on the medical certificate at page No.67 wherein injuries are mentioned which were caused by the complainant and his son with Dhariya and the stick and submitted that as a counter blast private compliant filed against 11 family members of applicant No.1 who are not residing with him and therefore, he prays to quash the compliant and process issued by learned Magistrate.
10. On the other hand, Mr.Chaudhary, learned advocate for Respondent No.2- original complainant as Page 11 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined also Mr.Pandya, learned APP had reiterated the submissions and contentions made in affidavit in-reply filed by the complainant and submitted that complainant is a retired officer in the Railway Department and his son, namely, Hitesh, working as Development officer in the LIC. It is further submitted that they are residing in Bharuch since last 14 years and applicant No.1 and their relatives are belonging to Darbar community and they were used to harass and create problems to see that complainant and his family members may shift at other place. It is further submitted by Mr.Chaudhary, that despite various complaints were filed before the Soneri Mahel Police Station, applicants are influential people and were close relatives of the local political party of the Bharuch district, there no any actions were taken.
11. It is further submitted by Mr.Chaudhary that on the day of the incident, accused rushed to the house Page 12 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined of the complainant and had caused damage to the car lying outside of the house. Learned advocate, Mr.Chaudhary, while assailing the order of the learned Magistrate issuing process under Section 204(1)(B) submitted that after considering the evidence, learned Court had issued process which is just and proper and therefore, he prayed to dismiss the petition and to vacate the interim relief.
12. Considering the submissions made by the respective parties, this Court finds that while issuing process under Section 204(1)(B), the learned Court had observed that as the police officers had not acted on the various complaints lodged by the complainant, one chance should be given to prove the case to the complainant and the accused and further observed that at the time of issuance of process, merits and de- merits are not to be looked into and only prima-facie case is to be seen by the learned Court and this Court Page 13 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined further observes that considering the compliant as well as documentary evidence, prima-facie, case for issuance of process is made out and therefore, the process was issued. It is undisputed fact that an FIR was lodged by the applicant on 23.03.2011 for the offene under Sections 325, 506(2), 114, 323 of Indian Penal Code and 135 of Bombay Police Act being I- C.R.No.57 of 2011 registered before Bharuch City 'A' Division Police Station, which was subsequently culminated into charge-sheet and trial is at stage of evidence. Considering the medical certificate, which was produced by the applicant, it transpired that complainant and his son caused injury to the applicant No.1 and also fractured his both hands for which, he was operated and re-operated. The Report of the Dy.S.P. (SC and ST) Cell revealed that the statement of the independent witnesses denying the facts mentioned in the compliant lodged by the complainant and also revealed that complainant and his son had Page 14 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined quarrelsome nature and taking the advantage of their caste by filing forged complaint against the applicants who are 11 in numbers address mentioned in cause title shows that except applicant Nos.1 and 2 all are residing at different places. Though bare perusal of the complaint shows that allegations is that applicants were having the deadly weapon in their own hand and try to assault to the complainant and his son. However, it is further contended in the compliant that as the complainant and his son was in a frightened condition, they hid themselves in the house, which shows that though allegations made in the complaint is with regard to the alleged offence under Sections 323, 504, 506(2), 427, 440 read with Section 114 of the Indian Penal Code, but not a single scratch was received by the complainant, which also shows that FIR is nothing but an afterthought with a view to wrecking vengeance against the applicants. It appears that only to pressurize the applicants to settle the case Page 15 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023 NEUTRAL CITATION R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023 undefined and to withdraw the FIR, this false complainant is filed, therefore, this Court finds that case is fully covered in the categroies (a) and (e) mentioned by the Apex Court in the case of State of Haryana and others V/s. Ch. Bhajan Lal and others reported in (1992) Supp. (1) SCC 335..
13. Resultnatly, application is allowed by quashing and setting aside the private complaint bearing Criminal Case No.3174 of 2014 (then Criminal Inquiry No.50 of 2011) filed on 10.6.2011 by the Respondent No.2 - complainant before the learned Chief Judicial Magistrate, Bharuch, wherein, learned Court, vide an order dated 30.07.2014 had issued the process under Section 204(1)(B) of 'Cr.P.C.'. Rule made absolute.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 16 of 16 Downloaded on : Sun Sep 17 01:41:41 IST 2023