Gujarat High Court
Ishwarbhai Versibhai Desai vs State Of Gujarat on 19 February, 2025
NEUTRAL CITATION
R/CR.MA/20269/2017 JUDGMENT DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20269 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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ISHWARBHAI VERSIBHAI DESAI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MM TIRMIZI(1117) for the Applicant(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR RUSHABH R SHAH(5314) for the Respondent(s) No. 2
MR SOHAM JOSHI, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 19/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of rule for respondent No.1 - State and learned advocate Mr.Rushabh Shah waives service of rule for respondent No.2.
2. At the outset, learned advocate Mr.Tirmizi does not press the present petition insofar as offences punishable under Sections 323, 504, 506 (2) and 114 of IPC are concerned, but he press this petition only qua offences punishable under Sections 3(1)(R)(S) and Section 3(2)(5)(a) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "Atrocities Act").
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3. Referring to the FIR, learned advocate Mr.Tirmizi would submit that the alleged offence did not take place within public domain. He would further submit that according to FIR, the incident took place within the office of the accused Ishwarbhai Desai and therefore, there is clear bar of Section 3(1)(10) of Atrocities Act are attracted in the present case. He would further submit that on plain reading of FIR, it does not indicate that the first informant has mentioned in FIR that he belongs to a particular caste i.e. Scheduled Caster or Scheduled Tribe and having knowledge of the same, the accused has abused him and insulted him for the caste. Therefore, since ingredients of offence under Section 3(1)(R)(S) and 3(2)(5)(a) of the Atrocities Act are not satisfied, the offence may be quashed. Learned advocate Mr.Tirmizi referred to the judgment of coordinate Bench of this Court in case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja vs. State of Gujarat and another, being Criminal Misc. Application No.15188 of 2014. Upon above submissions, he would submit to quash the FIR as far as offence under the Atrocities Act are concerned.
4. On the other hand, learned advocate Mr.Rushabh Shah appearing for the first informant fervently objected to relief claimed by the petitioner on the submission that the complainant as well as Mr.Kadarbhai were present in the office and therefore, since more than one persons are present at the time of offence, it can be said that offence took place within the domain and it satisfies the ingredients of Section 3(1)(10) of Atrocities Act. Upon above submissions, he would submit to dismiss this petition even qua offences under the Atrocities Act.
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5. Learned APP Mr.Soham Joshi appearing for the respondent State adopts the arguments of learned advocate Mr.Rushabh Shah.
6. I have heard learned advocates for both sides.
7. On 18.08.2017, the following order was passed :
"Notice returnable on 13.9.2017. Learned Public Prosecutor waives service of notice on behalf of respondent No.1 - State. Till the next date of hearing, no coercive steps shall be taken against the present applicants. The Investigating Officer may proceed further with the investigation."
8. On 22.07.2019, the following order was passed :
"1. By the order dated 18.08.2017, this Court had directed the Investigating Officer to proceed further with the investigation.
2. Learned Additional Public Prosecutor Ms.Bhatt on the instructions of the Investigating Officer, Ashok Desai, Head Constable, B.No.773 from the office of Dy.SP. (SC/ ST) Cell, Gandhinagar, has submitted that the investigation is already over and necessary report / draft chargesheet shall be produced before this Court for perusal.
3. On the request of learned Additional Public Prosecutor Ms.Bhatt, the matter is kept on 23rd August, 2019.
Necessary report / draft chargesheet shall be produced before this Court on or before the next date of hearing."
9. Let me refer the necessary contents of the FIR which reads as under :
"Today at about nine hours in the morning, I went to my office and manager of my company Hiteshbhai Vankar asked me to deliver the courier and therefore, I took two couriers. Out of them, one courier was of Mahalakshmi Page 3 of 8 Uploaded by GAURAV J THAKER(HC00951) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:54:52 IST 2025 NEUTRAL CITATION R/CR.MA/20269/2017 JUDGMENT DATED: 19/02/2025 undefined Sweet Bakeri, Ashwamegh Complex and another courier was of Ishwarbhai V. Rabari, Ashwamegh Complex. Therefore, I firstly went to Mahalakshmi Sweet Bakeri and at about 11.00 hours I called Ishwarbhai Rabari on his mobile No.9824029911 and asked him whether he was Ishwarbhai Rabari and there was one courier for him. Upon saying so, he told me that his office is at Shop No.33 in shop of Sabarmati Gas Service, first floor, Ashwamegh Complex and asked me to give the courier. Hence, I went to his office with the courier and at that time, Ishwarbhai was doing worship and one another person was sitting in the office. Hence, I took my shoes out and went inside the office to give courier. At that time said Ishwarbhai told me that ... .... who told me to enter into the office and I have no status to enter into the office. Upon saying so, he gave abuses to me. Thus, I asked him why he was uttering abuses. He asked me how can I took his name and upon saying so, he asked Kadarbhai to catch me, therefore, the person sitting there caught me and said Ishwarbhai gave two slaps on my face and threatened that if I will go into his office again, he would kill me and then I went away from there."
10. In the FIR, following offences under the Atrocities Act are registered against the accused :
"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;
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
**** *** *** [(va) commits any offence specified in the Schedule, against a person or property, knowing that such person Page 4 of 8 Uploaded by GAURAV J THAKER(HC00951) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:54:52 IST 2025 NEUTRAL CITATION R/CR.MA/20269/2017 JUDGMENT DATED: 19/02/2025 undefined 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 (45 of 1860) for such offences and shall also be liable to fine;]"
11. The basic necessity to prove the offence under the aforesaid sections are intentional insult or intimidation of the complainant with intent to humiliate him as member of Scheduled Caste and Scheduled Tribe at any place within the public view and also to abuse him.
12. At this juncture, I may refer to Section 3(1)(x) of the Atrocities Act as under :
"3. Punishments for offences 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."
13. In Swaran Singh vs. State - 2008 (8) SCC 435, the Hon'ble Apex Court in para 28 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 Page 5 of 8 Uploaded by GAURAV J THAKER(HC00951) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:54:52 IST 2025 NEUTRAL CITATION R/CR.MA/20269/2017 JUDGMENT DATED: 19/02/2025 undefined 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."
14. A place can be private place but yet within the public view could be treated as place within public view. Ordinarily public place means a place which is owned or leased by the Government or municipality or local body. In context to the FIR, it is stated that when first informant attended the office of the accused, he was scolded by certain words and some filthy words were used within the premises of the office of the petitioner.
15. I may refer to the case of Dinesh @ Buddha v. State of Rajasthan - (2006) 3 SCC 771, wherein the Supreme Court observed in paras-14 and 15 as under;
"14. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows:
"3(2)(v): Punishments for offences of atrocities -
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -Page 6 of 8 Uploaded by GAURAV J THAKER(HC00951) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:54:52 IST 2025
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(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground 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;
xxx xxx xxx"
15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."
16. In the case of Gorige Pentaiah v. State of Andhra Pradesh & Ors. - (2008) 12 SCC 531, Hon'ble Supreme Court observed as under :
"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 Page 7 of 8 Uploaded by GAURAV J THAKER(HC00951) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:54:52 IST 2025 NEUTRAL CITATION R/CR.MA/20269/2017 JUDGMENT DATED: 19/02/2025 undefined appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
17. The place of the office of the petitioner is not in public view. It is not an ordinary place of public view or place having public domain. This is the one aspect. The another aspect is that in the FIR neither there is an averment that first informant was member of Scheduled Caste or Scheduled Tribe nor there is any allegation that offence alleged to have been committed on account of the first informant being member of Scheduled Caste or Scheduled Tribe. On plain reading of the FIR, it does not seem to be a case of prosecution that any offence under the Atrocities is made out. So far as other offences are concerned, learned advocate Mr.Tirmizi has already not pressed the petition.
18. Therefore, while confining my reasons for quashing the offence under the provisions of the Atrocities Act, I pass the following order :
18.1 In the result, the petition is allowed. The first information report so far as offences under the Atrocities Act as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the petitioners herein. Rule is made absolute. Direct service is permitted.
18.2 It is needless to state that quashing of FIR insofar as offence under the Atrocities Act qua the petitioners would not in any way for the trial of the other offences.
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