Pratapbhai Jilubhai Patgir vs State Of Gujarat
2021 Latest Caselaw 18641 Guj

     R/CR.MA/1898/2019                             JUDGMENT DATED: 22/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 1898 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         PRATAPBHAI JILUBHAI PATGIR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR VISHAL K ANANDJIWALA (7798) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS SHUBHA B TRIPATHI (5597) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 22/12/2021

                              ORAL JUDGMENT

1. By way of this application filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside the criminal complaint bearing C. R. No. II - 10 of 2019 registered with Ranpur Police Station under Sections

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504 and 506(2) of Indian Penal Code, Section 3(1)(r) and 3(2) (va) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act (for short, "the Atrocities Act").

2. The applicant states that he is the Sarpanch of Village : Aniyadi Kathi, Taluka : Ranpur, District : Botad and that respondent No.2-original complainant is his political rival. In order to harass the applicant, the impugned complaint has been filed. The applicant states that the respondent- complainant has committed various acts, which are detrimental to the public health of villagers and which have violated the rights of the villagers. The applicant alleges that the respondent-complainant had procured the survey details of the village and had utilized the water for agricultural work in his own field. The applicant, being the Sarpanch, had confronted him about his illegal act. Thus, keeping the grudge, the complaint has been filed mainly because the respondent- complainant is his political rival and secondly, the applicant had confronted him about his illegal act; and thirdly, the respondent-complainant wanted to instill fear amongst the villagers by lodging the complaint so that he could carry on with his illegal activities.

3. Learned advocate Mr. V.K. Anadjiwala for the applicant submits that the alleged act has not occurred in the presence of the respondent-complainant. The ingredients to attract the offence under the Atrocities Act are not attracted in the

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present case. No offence has been committed in the presence of the respondent-complainant nor in public view or in a public place. The impugned complaint has been filed on hear- say basis. He states that no such incident has even occurred. Only to exert pressure on the applicant being the Sarpanch of the village and to create an atmosphere of fear, the impugned complaint has been filed.

4. The facts as narrated in the impugned complaint suggests that on 21.01.2019 at about 10:00 am, some officers from the Taluka Panchayat, Ranpur had come to Jilla Panchayat, Botad for carrying out survey of the toilets of Gram Panchayat of Village : Aniyari Kathi. The applicant, who happened to be the Sarpanch of the village, along with the Talati of the village and some village elders, had accompanied them in the team during the examination of the toilets. The team returned at around 1:00 pm and thereafter, the officers left the village. It is alleged that thereafter, Mehrubhai Dudabhai Gohil and the respondent-complainant were present near the Gram Panchayat and Mehrubhai Dudabhai Gohil allegedly told the applicant that his wife Santuben, being the member of the Gram Panchayat, ought to have been a member of the team during the inspection, to which, the applicant replied that survey was conducted in the presence of Dahyabhai Badhabhai. Mehrubhai Dudabhai Gohil, therefore, questioned the applicant as to why he took Dahyabhai Badhabhai in the team. It is alleged that thereafter, at about 1.30 pm., the respondent-complainant

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came to the Panchayat and questioned the applicant as to why he had not kept the wife of Mehrubhai Dudabhai Gohil, being a Member of the Panchayat, in the team. At that time, the applicant abused him by his caste and insulted him. It is alleged that on 22.01.2019, at about 3:00 pm, Vanraj Roopsingbhai Rajput met him and informed that the applicant has threatened by his life.

5. Learned APP Mr. Pranav Trivedi contended that the first incident may be considered to have occurred in presence of the Talati-cum-Mantri in the Panchayat office and thus, would be a public place.

6. The whole tenor of the complaint does not suggest as to what was the casteist remark/s that was allegedly made by the applicant at the respondent-complainant. Further, at the time of first incident, as alleged, except the applicant and the respondent-complainant, no other individual was present with them, even if the presence of Talati is considered, there are no details of specific words used for insulting the complainant in public eye. The offence as alleged could not be said to have taken place in public view nor it specifies the place of offence to be considered as a public place. The impugned complaint does not suggest that casteist remarks in abusive language was used in the presence of any third party.

6.1 In Swaran Singh and others V. State, Through Standing

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Counsel and Others, (2008) 8 SCC 435, the Apex Court has drawn distinction between the expression "public place" and "in any place within public view". For an offence under Section 3(2)(va) of the Atrocities Act, the essential ingredient is that the offence must have been committed on the ground that such person is a member of SC or ST community. Knowledge that the person concerned belonged to SC or ST community is the essential ingredient so as to attract the provision of Section 3(2)(va) of the said Act.

6.2 In Hitesh Verma v. The State of Uttarakhand & another, 2020 (10) SCC 710, the Apex Court observed thus:

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the

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procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste."

6.3 Considering the facts of the case and the principle laid down in the aforesaid decisions, this Court is of the view that none of the ingredients of the alleged offence under Sections 3(1)(r) and 3(2)(va) of the Atrocities Act are made out against the applicant.

7. In order to attract the provision of Section 504 IPC, the alleged act must include intentional insult of a person and thereby provoking the person so insulted to breach the peace or intentional insult of a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of public peace or to commit any other offence. From the above provision, it is clear that mere abuse may not come within the purview of the section. The test whether offence under Section 504 IPC is made out or not to find out as to what would be the effect of the abusive language used in ordinary circumstances and not what the complainant actually did.

7.1 In Vikram Johar v. The State of Uttar Pradesh and another, AIR 2019 SC 2109, the Apex Court observed thus:

"22. Section 504 of I.P.C. came up for consideration before this Court in Fiona Shrikhande Vs. State of Maharashtra & Another, (2013) 14 SCC 44. In the said

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case, this Court had occasion to examine ingredients of Section 504, which need to be present before proceeding to try a case. The Court held that in the said case, the order issuing process was challenged by filing a criminal revision. This Court held that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In paragraph No.11, following principles have been laid down:-

"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."

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23. In paragraph No.13 of the judgment, this Court has noticed the ingredients of Section 504, which are to the following effect:-

"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."

24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:-

"11. Xxxxxxxxxxxxx

A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an

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injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."

8. In light of the principle laid down by the Apex Court in Vikram Johar's case (supra), this Court is of the view that none of the ingredients of the offence under Sections 504 or 506(2) of IPC are attracted in the present case. Hence, the

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impugned complaint deserves to be quashed and set aside in exercise of the inherent powers under Section 482 of Cr.P.C.

9. For the foregoing reasons, the application is allowed. The impugned complaint bearing C. R. No. II - 10 of 2019 registered with Ranpur Police Station and all consequential proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

(GITA GOPI, J)

PRAVIN KARUNAN