Kiritkumar Bhanubhai Patel vs State Of Gujarat

                                                                                               NEUTRAL CITATION




     R/CR.MA/9014/2021                                         ORDER DATED: 27/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 9014 of 2021

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                           KIRITKUMAR BHANUBHAI PATEL
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
RICHA SHAH(7541) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 27/09/2023

                                     ORAL ORDER

1. Present petition is filed to quash and set aside impugned complaint being C.R.No.I-11209049210323 of 2021 for the offences punishable under Section 354 of IPC read with sections 3(1)(r). 3(1)(s), 3(1)(w)(i), 3 (1) (w) (ii) and 3(2)

(v)(A) of The Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as the 'Atrocities Act' for the sake of brevity and convenience) with Talod Police Station, District: Sabarkantha, and charge sheet filed pursuant thereto registered as Atrocity Case No.5 of 2021 pending before the Court of learned 2 nd Additional District and Sessions Judge, Sabarkantha and all consequent proceedings arising therefrom against the petitioners.

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined

2. Brief facts of the case as alleged in the FIR are as under:

2.1 The complainant has alleged in the impugned FIR dated 31.03.2021 that she is presently residing at Himmatnagar along with her husband and 3 children. It is further alleged that the husband of the complainant had initially married with Manjulaben who happened to be daughter of complainant's paternal sister who expired and then complainant married him in 2005. It is further alleged that they used to reside at Fojivada and are presently residing on rent at Himmatnagar for the last 2 to 3 months. It is further alleged that before about 4 months, the complainant had oral quarrels with the petitioner and she had made an application which later on was settled and the complainant went to Himmatnagar thereafter. It is further alleged that before about one month, the complainant came to Fojivada and on 23.02.2021, at about 4.30 p.m. in the evening, when the complainant had gone to attend nature's call and when she came out and was cleaning the loo, the petitioner had suddenly come and tried to pull the 'saree' of the complainant from behind and when she turned around and saw petitioner, the complainant shouted and the petitioner went away. It is further alleged that thereafter, at about 8.30 to 9 p.m., when the complainant had gone at the Page 2 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined backyard of her house to attend nature's call, once again the petitioner made inordinate demands and the complainant started shouting and the petitioner went away. It is further alleged that next morning, when the complainant was doing work at the backyard at about 8 a.m. in the morning, the petitioner was standing naked at his house in his bathroom and was making gestures and thereafter the complainant went to Himmatnagar and made a written complaint and thus, upon the aforesaid allegations, the impugned FIR came to be registered.

3. Heard learned advocate, Mr.Vaibhav Sheth for the petitioner, learned APP, Mr.Chintan Dave for respondent no.1-

State and learned advocate Ms.Richa Shah for respondent no.2.

4. At the time of hearing, learned advocate Mr.Vaibhav Sheth has drawn my attention to the contents of FIR and earlier order passed by coordinate Bench in present matter as well as in Criminal Misc. Application No.5444 of 2022 and Criminal Misc. Application No.13711 of 2022. He has submitted that present complainant has filed five different complaints against the present petitioner. He has submitted that the complainant is indulging in such activity to harass the villagers and the villagers have also made protest against Page 3 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined the conduct of the complainant and also lodged a complaint against her about immoral activities. He has further submitted that on bare reading of the complaint, it is clear that the complaint is filed with a view to harass present petitioner and surname of the complainant is mentioned as "Joshi" in the complaint, which does not belong to Scheduled Tribe community. He has submitted that as the father of the complainant was "Damor", she belonged to that community before marriage and she is trying to take disadvantage of same by filing frivolous complaint.

4.1 He has also submitted that out of four FIRs, proceedings of two FIRs have been stayed by this Honourable Court and in other two FIRs, police has filed "C" summary report.

4.2 He has also submitted that on bare reading of the complaint, allegations made against the petitioner by the complainant do not suggest even a prima facie case and it does not disclose any material by which any prudent person can reach to a conclusion that alleged offence is made out against the present petitioner. He has further submitted that present complaint is filed with mala fide intention and with a view to harass the petitioner. He submitted that considering the decision in the case of in the case of State Page 4 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, present petition may be allowed by quashing the impugned complaint.

5. Per contra, Ms.Richa Shah, learned advocate for respondent no.2 has submitted that prima facie case is made out against the present petitioner. She has further submitted that the complainant has narrated the incident in detail and certificate about her caste is also produced before police, therefore, it can be said that no case is made out to exercise powers under Section 482 of Criminal Procedure Code.

6. Learned APP, Mr.Chintan Dave, for the respondent-State has supported the submissions made at bar by learned advocate for the complainant. He has also argued that in view of the material available with investigating officer, allegations made in the complaint prima facie constitute an offence against present petitioner, however, he is not in a position to dispute the fact that "C" Summary report is filed in other two complaints and other two complaints have been stayed by this Court. He, therefore, prays that this Court may pass appropriate order considering the material available on record.

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined

7. I have considered rival submissions made at bar. I have also considered the allegations made in the FIR. Prima facie, offences are also alleged under the provisions of Section 354 of IPC read with Section 3 (1) (r), 3 (1) (s), 3 (1) (w) (i) and 3 (1) (w) (ii), 3 (2) (va) of the Atrocities Act, therefore, these provisions are reproduced hereunder:-

"354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

3. Punishments for offences atrocities. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(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;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

....

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined (w) (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipients consent;

(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.

...........

3.(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 2[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 imprisonment for life and with fine;

[(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 Page 7 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined (45 of 1860) for such offences and shall also be liable to fine;]"

8. This Court may also refer to 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.

(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 Page 8 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined 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.

(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.

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined (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."

8.1 It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. 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 Page 10 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC 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.]

24. Inherent powers under Sec. 482 CrPC 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. Discussion of decided cases."

8.2 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 :

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined "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 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, Page 12 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined 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.

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 :

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined "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 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 Page 14 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined 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."

9. It transpires that the incident in question has taken place at the residential premises of the complainant and the allegations are made for the offence under Section 354 also.

However, at the time of alleged incident, as per the say of the complainant, only the complainant and present petitioner were present at the place of incident and no other person was present. Though incident took place near the house of the complainant, there was no other witness except the son of the complainant. This itself creates suspicion about the occurrence of the incident. However, considering the provisions of the Atrocities Act, it cannot be considered that the incident has happened in 'public view', as is required under the provisions of the Atrocities Act.

9.1 In this regard, this Court may refer to the decision in the case of Hitesh Verma V/s State of Uttarakhand and Another reported in 2020 SCC online (SC) 907, wherein it is held in paragraphs 12, 14 and 15 as under:

NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined "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 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 Page 16 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined "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 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."

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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."

9.2 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 Page 18 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined 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 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 Page 19 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined very stringent nature, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be 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."

10. Considering the fact that the complainant has also filed other four complaints of similar nature against the present petitioner, it seems that the complainant is in habit of filing such complaints by seeking vengeance and with a view to settle some personal score with the petitioner. Therefore, it seems that this is a fit case wherein this Court should exercise its powers, as the material on record do not inspire Page 20 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023 NEUTRAL CITATION R/CR.MA/9014/2021 ORDER DATED: 27/09/2023 undefined any confidence about the allegations made in FIR. On the contrary, conduct of the complainant speaks about itself.

Therefore, considering this aspect, this is a fit case to exercise powers under Section 482 of Criminal Procedure Code. In view of above, present petition is allowed. Impugned FIR In view of this position, this application is allowed.

Impugned F.I.R. being C.R.No.I-11209049210323 of 2021 registered with Talod Police Station, District: Sabarkantha, and charge sheet filed pursuant thereto registered as Atrocity Case No.5 of 2021 pending before the Court of learned 2 nd Additional District and Sessions Judge, Sabarkantha, and all consequent proceedings arising therefrom against the present petitioner is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.

11. It is further directed that the amount of compensation received by the complainant pursuant to the impugned complaint shall be returned within a period of four weeks from today. In case of default, it is open for the Government to recover such amount by following procedure in accordance with law.

(SANDEEP N. BHATT,J) R.S. MALEK Page 21 of 21 Downloaded on : Tue Oct 03 20:33:46 IST 2023