Mahendrabhai Prabhudasbhai ... vs State Of Gujarat
2021 Latest Caselaw 10907 Guj

     R/CR.MA/23728/2017                                ORDER DATED: 06/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 23728 of 2017

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         MAHENDRABHAI PRABHUDASBHAI RAICHURA & 3 other(s)
                            Versus
                  STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NAVIN PAWA, SR. ADVOCATE with MR.NANDISH H THACKAR(7008)
for the Applicant(s) No. 1,2,3,4
NOTICE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 2
MR HK PATEL, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 06/08/2021

                                 ORAL ORDER

1. By preferring this petition under Section 482 of the

Criminal Procedure Code, applicants have requested for the

following reliefs:

"8(A) YOUR LORDSHIPS may be pleased to call for the record and proceedings of FIR being C.R. No.II-101/2017 registered with Ranavav Police Station and after perusing the same be pleased to quash the impugned FIR, in the interest of justice;

(B) YOUR LORDSHIPS may be pleased to stay the further proceedings of FIR being C.R. No.II-101/2017 registered with Ranavav Police Station, pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS be pleased to grant such other and further relief(s) as may be deemed fit in the interest of justice."

2. The factual matrix of this petition can be summarised as

under:

The respondent No.2 filed a criminal complaint with the

R/CR.MA/23728/2017 ORDER DATED: 06/08/2021

Ranavav Police Station for the offence punishable under

Section 3(1)(r), 3(2) (5a) of the Atrocities Act and Sections 323

and 114 of the IPC being C.R. No.II-101 of 2017. As per the

allegations made in the complaint, some massive work was

going on at the residence of the accused person and the

complainant was engaged for labour work. The labour charges

were not paid by the accused person, and therefore, the

complainant and his son namely Gautam and Pankaj went to

the residence of the accused persons, at that time,

complainant and witnesses were insulted in respect of their

caste, and thereafter, accused No.1 caught him from hand and

insulted him for causing him to fall down on the ground, and

therefore, all the accused suffered with the complainant and

he got an injury.

3. Heard learned Senior advocate Mr. Navin Pahwa with

Mr. Nandish H. Thakkar, learned advocate for the applicants

and learned APP for the respondent - State. It is submitted by

learned advocate for the applicants that complainant has

misused the provisions of the Atrocity Act with a view to harass

the applicants and extort money from them. It is further

submitted that incident is said to have committed in the

morning at about 11:00 A.M. to 12:00 A.M., at that time,

R/CR.MA/23728/2017 ORDER DATED: 06/08/2021

applicant No.4 was not in the house on that day. It is further

submitted that while reading complaint, it does not disclose

commission of offence punishable under Section 3(1)(r) and

3(2) (5a) of the Atrocities Act. It is further submitted that there

is no allegation in the FIR that the applicants were knowing

that complainant belongs to a Scheduled Castes though they

have intentionally committed the alleged offence. That to

involve in the offence as registered against the applicant,

complainant must disclose that accused had a prior knowledge

that complainant belongs to Scheduled Castes and he abused.

It is further submitted that as there is no mention in the

complaint to attract the provisions of Section 3 of the Act. That

no offence under the IPC are also made out by the applicants.

It is further submitted that to attract the essential ingredients

of the offence, it must be occured in public view and

specifically with a view to the complainant. That FIR itself is

silent regarding such allegations made by the complainant. In

support to his arguments, learned advocate appearing for the

applicants has relied upon the judgment reported in 2008 8

SCC 435 and 2008 12 SCC 531. It is submitted that from the

FIR itself, there is no disclosure of any offence committed by

the present applicants. That none of the applicants are

involved in the alleged offence and they are wrongly involved

R/CR.MA/23728/2017 ORDER DATED: 06/08/2021

with a oblique motive. That FIR itself is nothing but an abuse of

process of law. At the end, it was requested by learned

advocate appearing for the applicants to quash and set aside

the FIR in question.

4. Learned APP has firmly objected the arguments advanced

by the learned advocate for the applicants and referred the

contents of the complaint at page no. 11 and 12. It is

submitted that complainant himself was injured in the incident

and he was treated in a hospital. That during his treatment in

the hospital, he has lodged a complaint. There is no reason to

disbelieve the contents of the complaint at this juncture. That

one of the son of the complainant was admitted in the hospital

for his treatment while the another son had received simple

injury, and therefore, no treatment was taken by him. It is

further submitted that from bare reading of the complaint

itself, prima facie case is made out against the present

applicants to involve in the offence. That no lenient view could

be taken by the Court in such an offence, and therefore, it was

requested by the learned APP appearing for the respondent-

State to dismiss the petition.

5. However, notice was issued by this Court vide order

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dated 25.09.2017 and applicants were permitted to serve

through concerned police station, nobody appeared on behalf

of the respondent No.2 though duly served with the notice.

This Court, vide order dated 29.08.2018, was pleased to admit

this matter and interim relief was granted in terms of

paragraph No.8(B). It appears from the record that fresh Rule

was issued by this Court vide order dated 18.06.2021 and as

per the letter dated 24.03.2021 of Learned Principal District

Judge, Porbandar along with the report of learned Additional

District Judge Porbandar along with the connected papers,

notice was duly served to the complainant. Police Constable

Nandraj Suleman of Ranavav Police Station has confirmed the

service of notice to the complainant namely Santokben

Ranjitsinh Makwana. Thereafter, an affidavit was also filed by

the applicant No.3 namely Kalpeshbhai Mahendrabhai Raichura

stating that he himself served the notice of rule to the

respondent No.2 through the concerned police station on

21.06.2021 at 12:50 P.M. as directed by this Court. No

arguments was advanced on behalf of the respondent No.2 as

respondent No.2 has not remained present or contested this

petition by engaging an advocate.

6. Having considered the facts of the present case, the

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submissions made by learned advocates appearing for the

applicants as well as learned APP for the respondent- State and

having gone through the complaint lodged against the present

applicants, first of all this Court would like to refer Section 3 of

the Atrocity Act which reads as under:

"SECTION 3: Punishments for offences of 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;

(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 is a member of 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."

7. From the contents made in the complaint by the

respondent No.2, it appears that there is no allegation that

applicants had knowledge that the complainant was belonging

to Scheduled Castes and Tribes and they have intentionally

committed the alleged offence. To attract the provisions of the

Act, as alleged for the offence punishable under Section 3(1)(r)

of the Atrocity Act, complainant must have to disclose that

accused had a prior knowledge that the complainant belongs

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to a scheduled Castes and Tribes and he abused and man

handled him. Complaint is silent to attract these provisions

under Section 3(1)(r) and 3(2) (5a) of the Act as they are not

made out against the applicants. Further the offence was

made in the residential house of the applicants. Except the

complainant, his son and accused persons, nobody were

present as alleged in the complaint. Essential ingredients of

the offence under the Act are that the offence should have

occurred in public view and specifically with a view to the

complainant. If we consider the impugned FIR, none of such

allegations are made by the respondent No.2 in her complaint.

If we refer the case on hand, Swaransingh Vs. State reported in

2008 (8) SCC 435 wherein the expression (in a public view) has

been discussed in detail.

"32. Learned counsel for the appellants submitted that so far as appellant No. 1, Swaran Singh is concerned, his case even treating the allegations in the FIR to be correct, does not attract section 3(1)(x) of the Act. Learned counsel submitted that in the FIR it is mentioned that when the first informant Vinod Nagar complained to appellant No.1, Swaran Singh that his wife and daughter were insulting him by calling him `Chuda-Chamar', Swaran Singh said that actually he (Vinod Nagar) is a `Chuda-Chamar' and hence they did not say anything wrong.

33. We have already stated above that in today's context even calling a person `Chamar' ordinarily amounts to intentionally insulting that person with intent to humiliate him. It is evident from a perusal of the FIR that appellant No. 1, Swaran Singh joined his wife and daughter in insulting Vinod Nagar, and he also used the word `Chamar' in a derogatory sense. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show

R/CR.MA/23728/2017 ORDER DATED: 06/08/2021

that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant no.1.

34. The High Court in the impugned judgment has observed (in paragraph

16) that the question whether the appellants indeed uttered the offending words with intention to humiliate the complainant, are matters of evidence. We fully agree with this view. Hence, we find no merit in the appeals of appellants 2 and 3, and they are accordingly dismissed. However, the appeal of appellant No.1 is allowed, and the proceedings against him are quashed. There will be no order as to costs."

8. Admittedly, in the instant case, the alleged offence was

committed in a residential house of the applicants and not in a

place which ordinarily could be seen by the public. The

question of uttering the offending words intending to humiliate

the complainant or witnesses by the applicants does not rise to

attract the provisions of the Act as alleged in the complaint.

9. Prima facie, the FIR does not attract Section 3(1)(r) and

Section 3(2) (5a) of the Act. Another case reported in (2008)

12 SCC 351 Hon'ble Apex Court in para no.6 has observed as

under :

"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

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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."

10. Now again, if we consider the contents of the complaint,

it is no where stated or alleged that the applicants or the

accused were not belonging to the Scheduled Castes or

Scheduled Tribes and the complainant was intentionally

insulted or intimated by the accused with an intention to

humiliate him in a place within public view. In the entire

complaint, nowhere it is stated that the accused were not a

member of the Scheduled Castes or Scheduled Tribes and they

intentionally insulted or intimated with intention to humiliate

respondent No.2 in a place within public view. As the basic

ingredients of the complaint are missing itself then permitting

such a complaint to continue and to compel the applicants to

face the trial would be unjustified leading to abuse of process

of law.

11. It is well settled that the power under Section 482 of the

CRPC is to be exercised by the High Court inter alia, to prevent

abuse of the process of any Court or otherwise to secure the

ends of justice. When the basic ingredients of the offence are

missing in the complaint, then permitting such a complaint to

R/CR.MA/23728/2017 ORDER DATED: 06/08/2021

continue and to compel the applicants to face the rigmarole of

the criminal trial would be unjustified leading to abuse of

process of law.

12. In such a case, not quashing the proceedings would

perpetuate the process of the Court resulting in great hardship

and injustice to the accused. This Court deems it fit to exercise

the power under Section 482 of the CRPC by quashing the

impugned FIR in a case like the one on hand and it would

indeed secure the ends of justice, and therefore, the impugned

FIR being C.R. No.II-101 of 2017 registered with Ranavav Police

Station under Section 3(1) (r), 3(2) (5a) of the Atrocities Act and Sections

323 and 114 of the IPC and consequential proceedings thereof is

hereby quashed and set aside qua the present applicants. The

petition is accordingly allowed and disposed of. Rule is made

absolute to the aforesaid extent.

(B.N. KARIA, J) MAYA S. CHAUHAN