Ravibhai Kishorbhai Vaghela Thro ... vs State Of Gujarat

                                                                               NEUTRAL CITATION




     R/CR.MA/19659/2019                          ORDER DATED: 20/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 19659 of 2019

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     RAVIBHAI KISHORBHAI VAGHELA THRO SUMITABEN KISHORBHAI
                            VAGHELA
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR PRUTHVIRAJSINH GOHIL, ADVOCATE for
MR CHINTAN S POPAT, ADVOCATE for the Applicants
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
MR AJAY L PANDAV(3660) for the Respondent(s) No. 2 - Ori. Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 20/09/2023

                             ORAL ORDER

1. Pursuant to the orders passed by this Court dated 04.09.2023 and 11.09.2023, learned APP has tendered an affidavit dated 20.09.2023 filed by the Deputy Superintendent of Police, Veraval Division, Veraval, giving justification, which is taken on record.

2. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (`Code' for short) by the applicants inter alia praying to quash and set aside the impugned FIR being C.R. - II No.82 of 2019 registered with the Talala Police Station, District : Gir Somnath for the offences punishable under Sections 323, 504, 506(2) and 114 Page 1 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined of the Indian Penal Code, Section 135 of the Gujarat Police Act and Sections 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (`Atrocities Act' for short).

3. The brief facts of the prosecution case are that on 02.09.2019 at about 6:00 am in the morning, when the complainant was standing at Umrethi Patiya, at that time, the accused persons came there and accused No.1 threatened him about his relationship with his daughter - Manisha, accused Nos.2 and 4 caught the complainant and accused No.3 has given fist blow. One Manubhai Ahir interfered in the said quarrel, saved me and therefore, all the accused had run away from the incident. The complainant has called his father, he came with her sister and since there was pain in back and in legs, the complainant was shifted to the Talala Government Hospital for treatment. The reason behind it was the love affair between the complainant and daughter of accused No.1 viz., Manisha. Hence, the impugned FIR.

4. Heard learned advocate Mr.Pruthvirajsinh Gohil for learned advocate Mr.Chintan Popat for the applicants, learned advocate Mr. Ajay Pandav for the complainant and learned APP Mr. Jayswal for the State.

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5. Rule. Learned advocates waive service of notice of rule for and on behalf of respective respondents.

6. Learned advocate for the applicants does not press this application qua the offence punishable under the Indian Penal Code and the Gujarat Police Act. Therefore, this application is considered qua the offence punishable under the Atrocities Act only.

7. Learned advocate Mr.Gohil has submitted that there is no whisper in the impugned complaint which attracts the offence under the Atrocities Act against the applicants.

He has submitted that there was no serious incident happened as projected by the complainant. He has submitted that there was exchange of hot words between the complainant and the accused persons. He has submitted that there was minor scuffle between them. He has submitted that the complainant has developed relationship with the daughter of accused No.1 and therefore, there is a natural reaction of any father of the daughter. He has submitted that under such circumstances, the present application may be allowed by quashing the impugned complaint.

8. Learned advocate Mr.Pandav for the complainant has submitted that there is a love affair between the Page 3 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined complainant and the daughter of accused No.1 viz., Manisha.

He has submitted that the daughter of accused No.1 called the complainant and she came with him at his house.

Thereafter, the complainant has advised her and took her back to her parental home. He has submitted that there was no ill-intention of the complainant. He has submitted that there is no allegation against the complainant qua any unnatural incident with Manisha. He has submitted that the accused have committed an offence and therefore, this application may be rejected.

9. Learned APP for the State has adopted the arguments of the complainant. He has submitted that there is a prima facie case against the applicants and therefore, let the trial may be faced by them. He has submitted that this application may be rejected.

10. It is noted that this application is not pressed by the applicants for the offences punishable under the Indian Penal Code and under the Gujarat Police Act. This application is considered only qua the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act only.

11. Keeping the above in mind, I have considered the Page 4 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined rival submissions made by the learned advocates for the respective parties and I have also perused the material on record.

12. At the outset, it is required to be referred to the provisions of Sections 3(1)(r)(s) which is reproduced hereinbelow:

"Section 3(1)(r) :- intentionally insults or intimidates with intent to humiliate a member of Scheduled Caste or a Scheduled Tribe in any place within public view;

Section 3(1)(s) :- abuses any member of a Scheduled Caste or a Scheduled Tribes by caste name in any place within public view;"

13. From the tenor of the FIR, the occurrence of the incident itself is doubtful qua the offence under the Atrocities Act. It is prima facie found that the provisions of the Atrocities Act are applied in mechanical manner.

14. In the case of Hitesh Verma V/s State of Page 5 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined Uttarakhand and Another reported in 2020 SCC online (SC) 907,(supra), it is held in paragraphs 12, 14 and 15 as under:

"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".

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.

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 Page 6 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 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 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 would be an offence since it is in the public view. We Page 7 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place 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 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, Page 8 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 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."

15. Further, it would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Gorige Pentaiah versus State of Andra 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 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 Page 9 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 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 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.

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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 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 Page 11 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 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 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 Page 12 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 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."

16. It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Sri Gulam Mustafa versus State of Karnataka reported in 2023 (0) AIJEL - SC 71008, more particularly paras 36 to 39 thereof, which read as under :

" 36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over Page 13 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was not being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.

37. The Court would also note that even if the allegations are taken to be true on their face value, it is not discernible that any offence can be said to have been made out under the SC/ST Act against the appellant. The complaint and FIR are frivolous, vexatious and oppressive.

38. This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty bound to be vigilant before invoking any provision of a very stringent nature, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be Page 14 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position.

39. For the reasons aforesaid, the Court finds that the High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR.

Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside."

17. This Court has come through many matters wherein it is seen the provisions of Atrocities Act are applied in a casual and mechanical manner, which might be very easy for the complainant but for the accused, they have to run from pillar to post to get rid of such allegations, in which they suffer lot of hardships in terms of finance, mental and physical and also it affects their job. This case is also one such glaring example.

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18. In view of the above discussion, I am of the opinion that this is a fit case to exercise inherent powers under Section 482 of the Code, qua the offence under the Atrocities Act is concerned.

19. In view of above settled position of law and after considering the facts as alleged in the FIR and circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said FIR will cause greater hardships to the applicants and no fruitful purpose would be served if such further proceedings are allowed to be continued, qua the offence under the Atrocities Act. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score.

20. For the reasons recorded above, the following order is passed.

20.1 This application is partly allowed.

20.2 The impugned FIR being C.R. - II No.82 of 2019 registered with the Talala Police Station, District : Gir Somnath, qua the offence under the Atrocities Act, is hereby Page 16 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023 NEUTRAL CITATION R/CR.MA/19659/2019 ORDER DATED: 20/09/2023 undefined quashed and set aside. However, the proceedings of trial qua the offences under the provisions of the Indian Penal Code and under the Gujarat Police Act can continue against the applicants in accordance with law.

20.3 Rule is made absolute to the aforesaid extent.

21. The amount of compensation, if any, paid to the complainant be refunded to the State within a period of four weeks from today and the State is at liberty to recover the same, if not paid by the complainant, in accordance with law.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE Page 17 of 17 Downloaded on : Fri Sep 22 20:40:51 IST 2023