NEUTRAL CITATION
R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16067 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 YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BIPINBHAI RAMKRUSHNA BHATT & 7 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DEEP D VYAS(3869) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 2
MS. DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/10/2023
ORAL JUDGMENT
1. This is an application filed by the applicants - original accused challenging issuance of the private complaint being Page 1 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined Criminal Case No.891 of 2013 registered before the learned Judicial Magistrate First Class, Umargam for the offence punishable under Sections-323, 504, 506(2) and 114 of Indian Penal Code, 1947, and Section 3(1)(x) of the Atrocities Act, 1989. The aforesaid private complaint came to be filed by the complainant viz.Diwaliben Rajubhai Varli against eight accused - applicants herein alleging that the complainant was the owner of the property bearing survey nos.213/8/1, 213/8/1 paiki 2, 213/8 paiki 3, which are the ancestral property as per the say of complainant. It is alleged in the complaint that the aforesaid ancestral property was tried to grab by the present applicant and they were abused with regard to the caste of the complainant. It is further alleged that as the complainant was a lady and though before concerned police station grievance was raised by way of application dated 07.02.2013; 08.02.2013 and 10.02.2013, however, no any actions were taken. It further alleged in the complaint that as the complainant was a poor lady and the applicants were having the influence in the politics and the applicants had verbally abused by using filthy language related to her caste and therefore, the complainant prayed to Page 2 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined take action against the applicants - original accused and to punish them accordingly. Initially, after recording the verification, the learned trial Court had initiated inquiry under Section-202 of Cr.P.C. and called for the report. It is found during the inquiry that there was complaint, which was registered with the police, was also inquired, under Section- 210 of Cr.P.C. the complaint was stayed until the report is submitted by the concerned police officer. Thereafter, the Police Inspector, Bhilad Police Station had submitted a report and the learned trial Court has reproduced the report in the order dated 07.06.2013, wherein, it is mentioned that there was a dispute with regard to the land between the Aadiwasi community and the Brahmin community. On 10.02.2013, when the aadiwasi people were fencing in the compound wall on the land of the original owner Bipinbhai Ramkrushna Bhatt i.e. present applicant no.1 herein, present applicant no.1 reached to the place, the Aadiwasi people had beaten to the Brahmin and for that, one Kinnariben Harishbhai Bhatt has lodged an FIR against the five accused i.e. husband of the complainant viz. Rajubhai Diwarbhai was shown as accused no.1. The aforesaid FIR being C.R. No.I-22 of 2013 was initially Page 3 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined registered for the offence punishable under Sections-323, 354, 504, 506(2) & 114 of IPC, subsequently, during the investigation, it was found that one of the victim had lost the pregnancy due to present incident. The report was submitted to add Section-316 of IPC, which was subsequently added. It is further revealed that on the application of the present complainant viz. Diwaliben Rajubhai, a security bond were executed under Section-107 of the Cr.P.C. by the present applicant. It is further found from the report of the Police Inspector, Bhilad Police Station that as there was ongoing dispute between the present complainant and the applicants with regard to land and on making fencing on the compound wall of the disputed land, the incident occurred and for that, FIR also came to be lodged.
2. Considering the report, the learned trial Court had ordered to issue summons under Section 204 of Cr.P.C. on the ground that present complainant though approached the concerned police station, however, the concerned police station had not acted on the complaint of the present complainant and therefore, without observing anything on Page 4 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined merit, an order of issuance of the process under Section-204 was passed. The said order dated 07.06.2013 is the subject matter of challenge before this Court.
3. Heard learned advocate Mr. Deep D. Vyas for the applicants and learned advocate Mr. Vimal Purohit for the respondent - complainant as well as learned APP Ms. Divyangna P Jhala for the respondent - State.
4. Learned advocate Mr. Deep D. Vyas submitted that there was no any iota of evidence with regard to the involvement of the applicants. In-fact, though the applicant no.1 is the owner of the land, they were beaten by the family members of complainant and due to same, the daughter of the complainant had lost the pregnancy and the serious offence, which was lodged against family members of complainant, which was culminated into chargesheet and at present, the trial is going on before the leaned Sessions Court. Learned advocate further submitted that this is nothing, but a counter- blast of the FIR, which was lodged by the present applicants against the family members of the complainant. In fact, the Page 5 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined FIR of present applicant was prior in point of time, which was lodged on 10.02.2013, a private complaint, which was lodged on 22.02.2013, which is nothing, but an afterthought of the registration of the FIR. There was a serious allegations made against the husband of the complainant with regard to outraging the molesty of the woman in the FIR, however, with a view to settle the score against the present applicants, all male members of the family were falsely implicated in the FIR and therefore, learned advocate had prayed to quash the private complaint and prays to allow the application.
5. On the other-hand, learned advocate Mr. Vimal Purohit submits that though the complainant had approached by way of application before the concerned police station on 07.02.2013 and 10.02.2013 due to non-action on the part of the police officer, the private complaint was lodged before the learned Court below. The respondent had made specific allegation of abusive words uttered by the applicants, which attracts the provision of Atrocity Act and therefore, at this stage, learned advocate prays not to interfere with the proceedings and to dismiss the aforesaid application. Page 6 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023
NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined
6. Learned APP Ms. Divyagana Jhala for the respondent - State submits that as all the ingredients of alleged sections are mentioned in the private complaint and therefore, at this stage, interference may not be required and therefore, she prays to dismiss the application.
7. Considering the submissions advanced by the learned advocates for the respective parties, the first thing, which is required to be noted is that while issuing the summons, the learned Court below had not gone into the merits of the case and neither arrived at prima-facie satisfaction as to whether there is ground for proceeding, by reading complaint as a whole. Only on the ground that the concerned police station has not acted on the complaint, this summons under Section- 204 of Cr.P.C. has been issued.
8. The law laid down by the Hon'ble Apex Court in the case of Fiona Shrikhande Vs. State of Maharashtra and Another reported in (2013) 14 SCC 44, wherein the Hon'ble Apex Court in Paragraph-11 has observed as under:- Page 7 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023
NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined "11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint."
9. It is held by the Hon'ble Apex Court that the Magistrate while issuing process, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. While reading the order under Section-204 passed by the learned Court below, it is found that not a single word is mentioned with regard to merit of the allegation. Merely, after Page 8 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined reproduction of report by the Police Inspector, which also not support the allegation, the learned Court below has observed that the complaint, which is filed by the present complainant had not been acted and therefore, the process is required to be issued and impugned order passed for issuance of the process for the offence punishable under Sections-323, 504, 506(2) and 114 of Indian Penal Code, 1947, and Section 3(1)
(x) of the Atrocities Act, 1989.
10. Now, if this Court may look into the merits of the case, certain aspects are undisputed, which are mentioned herein below.
(i) The FIR came to be lodged by the present applicants on 10.02.2013 on the same day and when the offence was committed punishable under Sections- Sections- 323, 504, 506(2) and 114 of IPC, wherein, serious allegation against the husband of the complainant as well as other accused persons against outraging the molesty of woman is made out.
(ii) During the investigation, a report submitted by the Page 9 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined Police Inspector, Bhilad Police Station, wherein, Section-316 of IPC added as one of the victim viz.Bhumikaben Krunalbhai Bhatt has lost fetus. The aforesaid section was added and chargesheet came to be submitted on 14.06.2013 before the concerned Magistrate.
(iii) It is also not in dispute that there was ongoing dispute between the Brahmin and the Aadiwasi with regard to the land, which was stated to be owned by the present applicants as per report of Investing Officer, a chapter case was also registered against the present applicants and security bond was executed under Section-107 of Cr.P.C.
(iv) It is also not in dispute that in the private complaint that there was no specific time, date and place mentioned, however, only the abusive words, which is mentioned in the complaint, was alleged to have been used by the present applicants.
11. For attracting the provision of Atrocities Act under Page 10 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined Section-3(1)(x), which provides as under :-
3. Punishments for offences of atrocities.-- (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;
12. It is found that the impugned complaint is silent with regard to place of occurrence, time and date. Therefore, the first question, which is required to be answered is that whether the said place was within a public view; whether the abusing language with regard to the caste, which alleged to have used, witnessed by any independent person. As there was no any place mentioned in the complaint, it is difficult to ascertain that the same is falling in the definition of the public view. There was no any independent witness mentioned in the complaint with regard to the witnessing the incident. Therefore, the allegations with regard to the Atrocities Act is not found to be satisfied with.
13. So far as the offence under Section-504 is concerned, in the case of Fiona Shrikhande Vs. State of Maharashtra and Page 11 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined Another (supra), the Hon'ble Apex Court has observed in Paragraph-13 as under:-
13. Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.
14. Considering the ratio laid down in Fiona Shrikhande Vs. State of Maharashtra and Another (supra), the allegations with regard to Section-504 is also not satisfied with and therefore, this Court has no hesitation in holding that the Page 12 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined private complaint, which is filed by the complainant is nothing, but an abuse of process of law.
15. The scope of exercise of power under Section 482 of the Code and the categories of cases, where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by the Hon'ble Apex Court in the case of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in 1992 AIR 604 : 1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by the Hon'ble Apex Court are as follows:
"(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 Section 156(1) of the Code Page 13 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined 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, no 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 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 Act concerned (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 Act concerned, 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 Page 14 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/16067/2014 JUDGMENT DATED: 06/10/2023 undefined wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
16. In view of above, the present application is allowed. The proceedings of private complaint being Criminal Case No.891 of 2013 registered before the learned Judicial Magistrate First Class, Umargam is hereby quashed. All consequential proceedings pursuant thereto shall stand terminated.
Rule is made absolute to the aforesaid extent.
(M. K. THAKKER,J) A. B. VAGHELA Page 15 of 15 Downloaded on : Wed Oct 11 20:35:26 IST 2023