Manishbhai Pursottambhai Patel vs State Of Gujarat
2021 Latest Caselaw 10498 Guj

    R/SCR.A/1785/2017                           ORDER DATED: 04/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 1785 of 2017

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                    MANISHBHAI PURSOTTAMBHAI PATEL
                                 Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NV GANDHI(1693) for the Petitioner.
MR PH BUCH(1018) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 04/08/2021

                             ORAL ORDER

Rule. Learned APP waives service of notice of rule for and behalf of the respondent no.1-State and learned advocate Mr. P. H. Buch waives service of notice of rule for and on behalf of the respondent No.2.

By preferring present petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner/original accused has prayed following reliefs:

A) Your Lordships may be pleased to admit and allow this petition;

B) Your Lordships may be pleased to issue writ of certiorari or any other appropriate writ, order or directions and be pleased to quash and set aside the impugned Criminal

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Complaint being being C.R. No.I-43/2017 registered with Una Police Station, Dist: Gir-Somnath, for the offences punishable u/s. 506(2), 354(A) & 323 of the IPC, & Section 3 (1) S.R. & 3(2)(5-A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989;

C) Your Lordships may be pleased to stay the investigation of the impugned Criminal Complaint being C.R. No. I- 43/2017 registered with Una Police Station, Dist: Gir- Somnath, for the offences punishable u/s. 506(2), 354(A) & 323 of the IPC, & Section 3(1) S.R. & 3 (2)(5-A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989;+ D) Your Lordships may be pleased to grant ad-interim relief in terms of Para-C above;

The brief facts of the case are that on 18.02.2017, the respondent no.2-Dharmisthaben wife of one Lalabhai Gandabhai Solanki lodged the impugned FIR, which was registered with Una Police Station, Dist: Gir-Somnath, against the petitioner. As per the allegations of the complaint, she was serving on the post of Principal with Sankhada Pay Center School and her husband was also working there on the post of Teacher. On 13.02.2017, she had submitted one complaint to the District Education Officer and others about pressuring her

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by the teachers of the school for landing at compromise in relation to complaint filed by her on 12.01.2017 with Una Police Station against one Urmilaben Dajibhai Patel, who was serving as a teacher in the said school. It was stated that, as per her seniority, on 27.07.2016, she had taken charge of Principal of the said School. It was further alleged in the complaint that since she was belonging to SC community, she was subjected to mental harassment by the present petitioner, by threatening to leave the charge from the post of the Principal, failing which, she was given threats by the petitioner to kill her husband by committing an accident under the Car. Further allegations were made by the complainant that she was belonging to SC community and the staff of the school do not want Principal of SC community and they are obstructing in her administration and Petitioner herein was causing mental harassments towards her by interfering in her administration. As per the allegations made in the complaint, on 13.02.2017 at about 2.00 O'clock just before recess break, when she had gone to examine the broken cover of the water tank, the petitioner herein, by taking advantage of her loneliness, had committed mischiefs by touching on her body/leg, and because of sacredness, she returned to her office, however, she did not inform any one in school about the said incident. That, on that day her husband went to Una for attending one meeting and he

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returned back during evening time. She informed that she and her husband are under the threats of petitioner herein and as she wanted to discharge her duty in peaceful manner, and hence, the said complaint was given by alleging that the petitioner herein disliked her being SC community and he wanted to have charge of the Principal and since she was not leaving the charge of the Principal, he was giving threats to her and further causing mental and physical cruelty and also causing obstructions in her administration, moreover, in the loneliness, as he had done mischiefs, the said complaint was given.

This Court, vide order dated 6th March 2017, was pleased to issue a notice to the respondents directing the investigating agency not to take any coercive steps against the petitioner with a liberty to proceed further the investigation in accordance with law.

Heard learned advocate Mr. N. V. Gandhi for the petitioner, learned advocate Mr. P. H. Buch for the respondent no.2 and learned APP Mr. Himanshu Patel for the respondent no.1-State.

It was submitted by learned advocate for the petitioner that the impugned FIR is clear abuse of process of law. The different story is narrated by the complainant in the complaint forwarded to the learned District Education Officer. That, in

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both the complaints, the allegations about mischief have been made when she was alone, however, there is difference in the narration about such incidence and mischiefs. The impugned complaint is silent about the threats given to her and her husband. It was further submitted that the allegations are made by the complainant against the present petitioner that the complainant is habitual of making false complaints moreover the allegations made in the FIR, which prima facie do not constitute the offence alleged in the FIR. That, several representations were made by the villagers, social leaders etc of the Sankheda Village against the complainant. It was further submitted that the petitioner is also rendering his services as Assistant Teacher since last 10 years at various schools nearby village Sankheda and not a single complaint about his character was made till date. It was further submitted that the teachers working with him had also filed their affidavits in support of the petitioner and they have denied such incident, and therefore, FIR would be quashed by the Court. It was further submitted that to attract the provisions of Sections 3(1)

(s)(r) and 3(2)(5-A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as "the Act"), it must be established by the complainant that the alleged incident was taken place in presence of the independent members of the public and it was occurred in

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public view. It was further submitted that no allegations are made in her complaint that accused was not a member of SC/ST community and petitioner has intentionally insulted or intimidated or humiliated the complainant. In support of his arguments, learned advocate for the petitioner has placed his reliance upon the judgment reported in 2020(2) GLR Page No. 1036 in case of Anwar Ahmad Pathan versus State of Gujarat and Anr. At the end, he has requested to allow present petition by quashing and setting the impugned complaint.

On the other hand learned advocate for the respondent no.2 has strongly objected the submissions made by learned advocate for the petitioner and submitted that serious allegations are made by the complainant as the petitioner had committed mischiefs by touching body or leg of the complainant and because of sacredness, she returned to his office. It was further submitted that in the quashing petition, under Section 482 of the Code of Criminal Procedure, issue of Section 354(A) of IPC may not be decided without recording any evidence of prosecution. That clear allegations are made by the complainant against the petitioner are of serious in nature. Prima facie, complainant has lodged impugned complaint against the present petitioner and therefore, she should be permitted to allow her to lead evidence before the trial court and without leading evidence by the complainant as

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well as witnesses of the prosecution, this court may not examine the issue under Section 482 of Code of Criminal Procedure and hence, it was requested by him to dismiss present petition.

Learned APP for the respondent no.1-State has supported the arguments advanced by learned advocate for the respondent no.2 and submitted that considering the seriousness of the offence committed by the present petitioner as alleged in the complaint itself under Section 506(2) and 354(A) of the Indian Penal Code as well as Section 3(1)(s)(r) of the Act, the prayer made by the petitioner can not be allowed at this juncture. Referring the complaint lodged by the complainant, it was submitted by learned APP that investigation is required to be made by the prosecution and thereafter, evidence of the prosecution should be permitted for record by the learned trial court. That, no case is made out by the petitioner before this Court to exercise the powers vested upon under Section 482 of the Code of Criminal Procedure. In support of his arguments, learned APP for the respondent-State has placed his reliance on the judgment reported in (2019)5 SCC Page No.464 in case of "Rafiq Ahmedbhai Paliwala versus State of Gujarat and others". At the end, it was requested by learned APP for the respondent-State to dismiss present petition.

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Having heard learned advocate for the petitioner; learned advocate for the respondent no.2 and learned APP for the respondent No.1-State and papers produced on record, it appears that the impugned complaint was registered with the Una Police Station, District: Gir Somnath being C.R.No. I-43 of 2017 for the offence punishable under Section 506(2) and 354(A) of the Indian Penal Code and Section 3(1)(s)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and thereafter, the Investigating Agency added Section 3(2)(5-A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 as well as Sections 323 and 114 of the Indian Penal Code int eh complaint. As per the contents of the complaint, complainant was serving on the post of Principal with Sankhada Pay Center School as well as her husband was also serving on the post of Teacher. It appears that on 13.02.2017, one complaint was submitted by the complainant and copy was forwarded to the District Education Officer stating that she was pressurizing by the teachers of the school for landing at compromise in relation to complaint filed by her on 12th January 2017 with Una Police Station against one Urmilaben Dajibhai Patel who was also serving as a teacher in the said school. As per her seniority, on 27.07.2016, she had taken charge of Principal of the said School. It appears that previously the husband of the

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complainant was holding charge of the Principal of the school from the year 2012 and the complainant had taken charge from her husband. As per the allegations since she was belonging to SC community, she was subjected to mental harassments by the petitioner threatening her to leave the charge from the post of the Principal, failing which, he will kill her husband by committing an accident under the Car. She was further alleged that since she was belonging to SC community and the staff of the school do not want Principal of SC community, they were obstructing in her administration and petitioner was causing her mental harassments by interfering with her administration. The alleged incident was taken place on 13th February 2017 at about 2.00 o'clock ie., just before recess break, when she had gone to examine the broken cover of the water tank, by taking advantage of her loneliness, the petitioner had committed mischief by touching on her body/leg and because of sacredness, she returned to her office and she did not inform to anyone in school about the said incident.

So far as Section 354(A) is concerned whatever allegations are levelled against the petitioner in the complaint, certainly some of the teachers working in the said school having supported the say of the petitioner in their affidavits produced on record at page nos. 42, 45 and 48 stating that on

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13th February 2017, no such so called incident was occurred in the school and all the allegations made in the complaint against the petitioner are clearly wrong and fabricated. The statement on oath in their affidavits cannot be considered by this court without recording their statements before the trial court as a witness from the prosecution. The correctness of the statement made by these 2-3 persons working in the said school can be examined after recording their evidence as well as correctness of the complaint also may be examined by the court concerned at the time of recording evidence of the complainant herself.

The factual aspect of sexual harassment as provided under Section 354(A) of the Indian Penal Code cannot be decided by this court in the petition under Section 482 of the Code of Criminal Procedure, and therefore, prayer made to quash the complaint filed under Section 354(A) of IPC as well as threat given by the present petitioner to attract the provisions of Section 506(2) of the IPC would require to be dismissed.

If we consider the prayer to attract Section 3(1), 3(2)(5- A) of the Atrocities Act and in this connection if we read Section 3(2)(5-A) of the Atrocities Act, it specifies that whoever commits any offence specified in the schedule against the person or property, on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such

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property belongs to such member, shall be punishable with punishment as specified in the Indian Penal Code for such offence and shall also be liable to fine. If we consider the entire complaint lodged by the respondent no.2, nowhere stated or alleged that the petitioner was not a member of SC/ST community and the complainant was intentionally insulted or intimidated by the accused with intention to humiliate her in any place within public view.

The prayer of Section 354(A), 323 and 506(2) of IPC would not be claimed to be quashed considering the facts of the present case. In the judgment reported in 2020(2) GLR Page No. 1036 in case of Anwar Ahmad Pathan versus State of Gujarat and Anr, this court has held that as the independent member of the public were not present at the time of incident, said incident could not be said to have occurred in public view. As there is no allegation in the FIR that accused was not a member of SC/ST and accused intentionally insulted or intimidated to humiliate the complainant in public view. Ingredients of alleged Sections of Atrocities Act are not satisfied in the present case.

Here also to attract the provisions of Sections 3(1)(s)(r) of the Atrocities Act, it should be specifically incorporated by the complainant in her complaint that the petitioner insulted or intimidated her with an intention to humiliate her being a

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member of SC/ST in a place within public view. She must incorporate in her complaint that the petitioner abused her as she being a member of SC/ST but the complaint is completely silent to attract Section 3(1)(s)(r) of the Atrocities Act as there is no allegation in the complaint that the petitioner intentionally insulted or intimidated with an intention to insult her being a member of SC/ST within a pubic view in a case. It is nowhere stated that the petitioner abused the complainant being a member of SC/ST or caste name in a place within a public view.

Considering the facts of the present case, the prayer made by the petitioner is required to be accepted in part being C.R. No. I-43 of 2017 registered with Una Police Station, District: Gir Somnath for the offence punishable under Sections 3(1)(s)

(r) and 3(2)(5-A)of the Atrocities Act.

Learned APP for the respondent-State has placed reliance on the judgment reported in (2019)5 SCC Page No.464 in case of "Rafiq Ahmedbhai Paliwala versus State of Gujarat and others" and submitted that prayer in part cannot be allowed by this Court as held by the Apex Court. If such a prayer is allowed then no further investigation would be made by the Investigating Officer. He he has referred para 10 and 11 of the said judgment, which reads as under:

10. The High Court, in our view, instead of quashing the FIR at

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such a preliminary stage should have directed the IO to make proper investigation on the basis of the FIR and then file proper charge sheet on the basis of the material collected in the investigation accordingly. It was, however, not done. It was more so because, we find that FIR did disclose prima facie allegations of commission of concerned offences.

11. We cannot, therefore, countenance the approach of the High Court when it proceeded to quash the FIR partly in relation to more serious offences (Sections 392, 395 and 397 IPC) without allowing the IO to make proper investigation into its allegations.

At this juncture, on a request, learned Senior Counsel Mr. J. M. Panchal has assisted the court drawing attention towards the judgment reported in (2020) 10 SCC 710 in case of Hitesh Verma versus State of Uttarakhand and Anr." and has submitted that the part prayer can be allowed. Thus, this court would like to refer relevant paras of that judgment which are as under:

"22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste.

The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was

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aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law.

23. This Court in a judgment reported as Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr. 10 held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under:

"9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the

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extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed."

24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The appeal is disposed of in the above terms.

25. The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case, though separately initiated, for the reason that it relates to interparty dispute and is in respect of same subject matter of property, despite of the fact that two different dates of the incident have been provided by the parties." Considering the peculiar facts of the present case, the prayer made by the petitioner to quash the impugned complaint qua Sections 506(2), 354(A) & 323 of the Indian Penal Code stands rejected and impugned complaint qua Sections 3 (1)(s)(r) & 3(2)(5-A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 stands allowed; as held by Hon'ble Apex court in the judgment reported in (2020) 10 SCC 710 in case of Hitesh Verma (Supra).

Hence present petition stands partly allowed. Impugned Criminal Complaint being being C.R. No.I-43/2017 registered

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with Una Police Station, Dist: Gir-Somnath is ordered to be quashed qua Section 3 (1)(s)(r) & 3(2)(5-A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The FIR in respect of offences under the Indian Penal Code will be tried by the competent court in accordance with Law.

This Court appreciate an assistance rendered by learned Senior Counsel Shri J. M. Panchal in the present matter.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) K. S. DARJI