Rajendrabhai Natubhai Majirana vs State Of Gujarat
2021 Latest Caselaw 7349 Guj

    R/CR.MA/21211/2018                               JUDGMENT DATED: 01/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC. APPLICATION NO. 21211 of 2018
                             With
         R/CRIMINAL MISC. APPLICATION NO. 21214 of 2018
                             With
          R/CRIMINAL MISC. APPLICATION NO. 3525 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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                          PADAMSINH AMBALAL PADHIYAR
                                     Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NIRAL R MEHTA (3001) for the Applicant(s) No. 1
MR JAYDEEP H SINDHI (9585) for the Respondent(s) No. 3
NOTICE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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    CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 01/07/2021

                                ORAL JUDGMENT

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1. RULE. Learned advocates waive service of notice of rule on behalf of the respective respondents. With the consent of both the sides, the matters are heard today finally.

2. All the three petitions arise out of the same incident and involve identical questions on law and facts. Hence, they are disposed of by this common judgment.

3. CRIMINAL MISC. APPLICATION No.21211 OF 2018 and CRIMINAL MISC. APPLICATION No.21214 OF 2018 : Both these petitions have been filed under Section 482 of the Code of Criminal Procedure (for short, "the Cr.P.C.") seeking quashment of the First Information Report being C.R. No. I - 57 of 2018 registered with Danta Police Station for the offences punishable under Sections 324, 337, 323, 143, 147, 148, 149, 452, 294B, 506(2) of IPC and Sections 3(1)(r) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Atrocities Act") and the proceedings initiated pursuant thereto.

CRIMINAL MISC. APPLICATION No.3525 OF 2019 : By way of this application filed under Section 482 of Cr.P.C., the petitioners have prayed to quash and set aside the First Information Report being C.R. No. I - 56 of 2018 registered with Danta Police Station for the offences punishable under Sections 395, 397, 452, 354(B), 294(B) and 506(2) of IPC.

4. For the purpose of narration of facts, Criminal Misc. Application No.21211 of 2018 is taken as the lead matter:-

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On 28.10.2018, at around 2100 hrs., respondent No.3, Kirankumar Rajendrabhai Bhil, the original complainant, was wandering near his house. He noticed his father, Rajendrakumar Natubhai Majirana, going to a nearby shop, after having his dinner. While his father was on his way, Hiteshkumar @ Bakaji Babuji Thakore (original accused No.1), his wife

- Shobhaben Hiteshkumar @ Bakaji Babuji Thakore (original accused No.2) and the applicant herein (original accused No.3), who all were standing in the front area of the house of original accused No.1, asked his father - Rajendrakumar Natubhai Majirana to stop and reprimanded him that as he has stood as a witness in the complaint filed by one Prahladbhai Maganbhai Parmar under the Atrocities Act, he should not use the road passing in front of their house for commuting. The accused also hurled abuses at his father. When his father asked the accused not to hurl abuses at him, they got enraged. At that time, original accused Nos.6 & 7, who happened to be the children of original accused Nos.1 & 2 and were also present at the place at the relevant time, pushed down Rajendrakumar Natubhai Majirana and thereafter, began to abuse him physically. On hearing the shouts of his father, the complainant and his brother - Amitkumar Rajendrakumar Majirana rushed to the place of incident in order to rescue him. At that time, the original accused No.1 inflicted an iron-pipe blow on the head of his father, who began to bleed profusely. The complainant and his brother took their injured father to home. A few moments later, all the accused persons, who were armed with weapons like sword, axe, stones, etc. and the applicant herein reached the house of the complainant. They forced open the door of the house and vandalized it. Thereafter, the accused assaulted the complainant and other members who were present in the house. The accused also hurled abuses at the caste of the complainant and other injured witnesses and threatened them

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of dire consequences. On intervention of other witnesses, the accused left the house. Thereafter, the injured was taken to Danta Civil Hospital. A complaint in connection with the above incident was registered with Danta Police Station vide C.R. No. I - 57 of 2018 for offences punishable under Sections 324, 337, 323, 143, 147, 148, 149, 452, 294B, 506(2) of IPC and Sections 3(1)(r) and 3(2)(va) of the Atrocities Act.

5. Criminal Misc. Application No.21211 of 2018 has been preferred by original accused No.3; whereas Criminal Misc. Application No.21214 of 2018 has been preferred by the rest of the accused in the First Information Report being C.R. No. I - 57 of 2018 registered with Danta Police Station.

6. On the same day, but prior in point of time, Hiteshkumar @ Bakaji Babuji Thakore (the original accused No.1 in C.R. No. I - 57 of 2018) had lodged a complaint in connection with the same alleged incident, which came to be registered as C.R. No. I - 56 of 2018 with Danta Police Station for the offences punishable under Sections 395, 452, 354(B), 294(B) and 506(2) of IPC against nine accused persons, including the original complainant in C.R. No. I - 57 of 2018.

7. Criminal Misc. Application No.3525 of 2019 has been preferred by original accused Nos. 1 to 8 in the First Information Report being C.R. No. I - 56 of 2018 registered with Danta Police Station.

CRIMINAL MISC. APPLICATION No. 21211 OF 2018 :

8. Learned advocate Mr. Niral Mehta appearing for the applicant- original accused No.3 submitted that the applicant herein is an Advocate by profession having practice of several years. The applicant has been

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falsely implicated in the alleged offence, as he was engaged as an Advocate by original accused No.1 - Hiteshkumar @ Bakaji Babuji Thakore and his family members amongst whom one happened to be the Sarpanch of Danta Gram Panchayat. It was pointed out by learned advocate Mr. Mehta that a similar complaint vide C.R. No. II - 32 of 2018 had been registered with Danta Police Station for the offences punishable under the Atrocities Act wherein the applicant was implicated as an accused as he was the Advocate of the Sarpach of Danta Gram Panchayat at that time and in the said proceedings also, this Court has granted interim protection to the applicant.

8.1 Learned advocate Mr. Mehta also pointed out that the family of the complainant does not actually belong to the backward community and that the father of the complainant had obtained a certificate of backwardness by producing false evidence and / or by misrepresenting before the authority concerned in order to derive Government benefits and the applicant herein, while acting as an Advocate of original accused No.1 - Hiteshkumar @ Bakaji Babuji Thakore and his family, had provided necessary legal guidance to unearth the above illegalities. Thus, keeping grudge against the applicant for providing support to the family of the accused, the complainant implicated the applicant in the alleged offence. Further, from the allegations made in the complaint itself, it is clear that the applicant had not made any casteist remarks or had hurled any slurs at the complainant or any of his family members.

8.2 It was further submitted that the impugned complaint is a counter- blast to the complaint filed by original accused No.1 against the respondent No.3 herein and his family members. Further, the said complaint filed by original accused No.1 is prior in point of time to the present complaint. Hence, the impugned complaint is a clear abuse of the process of law and it deserves to be quashed and set aside.

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9. Learned advocate Mr. J.H. Sindhi appearing on behalf of respondent No.3-original complainant submitted that the applicant, along with other accused persons, had played an active role in the commission of the alleged offence. The applicant-accused was member of an unlawful assembly and in furtherance of their common intention, had committed the alleged offence. The applicant had intentionally hurled casteist slurs at the injured-father of the complainant in public place as also at the complainant with the intention to insult and humiliate them knowing fully that they belonged to Scheduled Castes / Scheduled Tribes community. It was, therefore, prayed that the inherent powers of this Court under Section 482 of Cr.P.C may not be exercised in favour of the applicant.

10. Heard learned advocates on both the sides. A cursory reading of the allegations made in the complaint in this case being C.R. No. I - 57 of 2018 shows that on the date of the alleged incident, at round 2100 hrs., while original accused No.1-Hiteshkumar @ Bakaji Babuji Thakore, his wife - Shobhaben Hiteshkumar @ Bakaji Babuji Thakore, original accused No.2 and the applicant herein (original accused No.3) were standing in the house of original accused No.1, Rajendrakumar Natubhai Majirana, the father of original complainant-Kirankumar Rajendrakumar Bhil, was walking past the road located in front of the house of original accused No.1. It is alleged that at that time, the aforesaid three accused persons reprimanded the father of the complainant by asking as to why he had stood as a witness in the complaint filed by one Prahladbhai Maganbhai Parmar against them under the Atrocities Act. It is further alleged that the aforesaid three accused persons hurled abuses at the father of the complainant and thereafter, original accused Nos.6 & 7, who are the children of original accused Nos.1 & 2 and were present at the scene of offence at the relevant time, pushed down the father of the complainant and gave kick and fist blows. It is further alleged that on

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hearing the shouts for help, the complainant and his brother - Amitkumar Rajendrabhai Majirana rushed to the scene of offence. During that time, original accused No1-Hiteshkumar @ Bakaji Babuji Thakore, who was armed with an iron-pipe, inflicted a blow on the head of the father of complainant on account of which he sustained severe head injury and the injured was taken to his home. It is further alleged that thereafter, the accused persons, viz. original accused No.1-Hiteshkumar @ Bakaji Babuji Thakore, who was armed with an iron-pipe, original accused No.5-Manishkumar Babuji Thakore armed with a sword and original accused No.4-Nikitaben Manishkumar Thakore, original accused No.2- Shobhaben Hiteshkumar Thakore and original accused No.6-Kinjalben Hiteshkumar Thakore armed with clubs, original accused No.7-Abhishek Hiteshkumar Thakore armed with axe and original accused No.8- Bhaveshkumar Bharatkumar Thakore armed with stone, arrived at the house of the complainant.

11. Insofar as the role of the applicant herein is concerned, he is alleged to have accompanied all the aforesaid accused to the house of the complainant. Here, it is pertinent to note that in the complaint, categorical averments have been made by the complainant as regards the weapons possessed by each of the accused persons at the relevant point of time. However, no allegation has been made by the complainant as regards the weapon with which the applicant herein was armed with at the relevant time. The only allegation against the applicant is that he had accompanied the aforesaid accused persons, who were armed with different types of weapons, to the house of the complainant.

12. From the complaint itself, it appears that the alleged incident took place at two different places, viz. firstly, in front of the house of original accused No.1-Hiteshkumar @ Bakaji Babuji Thakore and thereafter, in the house of the complainant. However, in the entire complaint, no

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specific allegation has been made by the complainant regarding the alleged role played by the applicant. The allegations made against the applicant are general in nature and no overt act has been attributed to him. Even on a plain reading of the averments made in the complaint, none of the allegations levelled against the applicant herein for the offences punishable under the Indian Penal Code are made out.

13. It appears from the documents on record that the applicant herein, who is a practising Lawyer, was engaged by original accused No.1 and his family members to defend them in some of their legal matters. The original accused No1.1-Hiteshkumar @ Bakaji Babuji Thakore and his family members had raked up the issue that the father of the complainant does not belong to SC / ST category and he and his family are not entitled to get the benefits flowing under different schemes of the Government. It is their say that the father of the complainant had fraudulently obtained caste certificate that they belonged to SC / ST category when they actually belonged to the General category. The applicant herein had assisted original accused No.1 and his family members in their above endeavour by rendering services as an Advocate.

14. The applicant herein is also alleged to have committed offences punishable under the Atrocities Act. However, none of the ingredients of the offences punishable under sections 3(1)(r) and 3(2)(va) of the Atrocities Act appear to be present in this case. The basic ingredients of the offence under Section 3(1)(r) of the Atrocities Act can be classified as

(i) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within public view. The offence under Section 3(1)(r) 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

R/CR.MA/21211/2018 JUDGMENT DATED: 01/07/2021

Atrocities Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or a Scheduled Tribe. Another key ingredient of the provision is that the insult or intimidation should be in "any place within public view".

15. In Swaran Singh and others V. State, Through Standing 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". It was held that if an offence is committed outside the building, eg. 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. As per the allegations made in the impugned complaint, the allegations of abusing the complainant were within the four walls of his house. It is not the case of the complainant 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. 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 a Scheduled Caste or a Scheduled Tribe. Knowledge that the person concerned belonged to a Scheduled Caste or a Scheduled Tribe is the essential ingredient so as to attract the provision of Section 3(2)(va) of the Atrocities Act. In the case on hand, none of the ingredients of the offences alleged against the applicant under the provisions of the Atrocities Act are made out even on a bare reading of the allegations in the impugned complaint.

16. In the case of Hitesh Verma V. The State of Uttarakhand and

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another, 2020 (10) SCC 710, the Apex Court has discussed in detail the principle and the circumstances under which an FIR filed for the offences punishable under Sections 3(1)(x) and 3(1)(e) of the Atrocities Act could be quashed in exercised of the inherent powers under Section 482 of Cr.P.C.

17. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. and of the principles of law enunciated in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The Apex Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines or forumulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised :

"(a) 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 facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) 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;

       (d)     where the allegations in the FIR do not constitute a





   R/CR.MA/21211/2018                               JUDGMENT DATED: 01/07/2021

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 Section 155(2) of the Code;

(e) 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;

(f) 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;

(g) 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."

18. While dealing with the constitutionality of the provisions of Section 18A of the Atrocities Act, the Apex Court in Prathvi Raj Chauhan V. Union of India and others, (2020) 4 SCC 727, held as under:-

"12. The Court can, in exceptional cases, exercise power under Section 482 Cr.P.C. for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has been raised."

CRIMINAL MISC. APPLICATION No. 21214 OF 2018 and 3535 OF 2019 :

19. Learned advocate Mr. Niral Mehta appearing for the applicants in Criminal Misc. Application No.21214 of 2018 submitted that applicant No.1-Hiteshkumar @ Bakaji Babaji Thakore and his family members are active in politics and that the complaint in question is nothing but an

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attempt by the rival group to falsely implicate the applicants in the alleged offence so that their career is ruined. It was submitted that in the past also, a similar complaint came to be filed against the applicants for offences punishable under the provisions of the Indian Penal Code and the Atrocities Act. He, therefore, requested that the complaint in question may be quashed and set aside.

20. Learned advocate Mr. Sindhi appearing for the applicants in Criminal Misc. Application No.3525 of 2019 submitted that the complaint in this case is a counter-blast to the complaint filed by applicant No.3, who is the original complainant in C.R. No. I - 57 of 2018. In fact, the applicant No.1-original accused No.1 in this case was assaulted by the complainant and his family members, which had resulted into his hospitalization for about a week. It is further submitted that the complainant in this case has criminal antecedents and that the applicants have been arraigned in the present case since they are prime witnesses in an other offence filed against the complainant and his family members for offences punishable under the Indian Penal Code and the Atrocities Act. It was, therefore, prayed that the complaint in this case be quashed and set aside.

21. Having heard learned advocates on both the sides, it appears that in connection with two different incidents, two separate complaints came to be filed. In the complaint being C.R. No. I - 56 of 2018, which was registered prior in point of time, the place of alleged incident appears to be the house of the original complainant-Hiteshkumar @ Bakaji Babuji Thakore. Whereas, in the subsequent complaint being C.R. No. I - 57 of 2018, the place of alleged incident is mentioned as the house of original complainant-Kirankumar Rajendrabhai Bhil. The complainants in both the complaints have been arraigned as accused in the other complaint along with other accused persons. In the earlier complaint being C.R. No.

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I - 56 of 2018, the main allegation is that original accused No.1-Rajubhai Natwarbhai Joshi had forcibly entered the house of the complainant in a drunken condition and had, thereafter, picked up a quarrel with the complainant and his family members. Whereas, in the subsequent complaint being C.R. No. I - 57 of 2018, the alleged incident is divided into two parts. The first part is alleged to have taken place in front of the house of original accused No.1-Hiteshkumar @ Bakaji Babuji Thakore and the second part is alleged to have taken place at the house of the original complainant-Kirankumar Rajendrabhai Bhil. In the above alleged incidents, one person is said to have sustained injury on the head. The alleged incidents appear to be the result of some personal enmity between two families residing in the same locality. It appears that in the past also, some dispute had arisen between the two families, which had resulted into the filing of criminal complaint at that time. In the complaint being C.R. No. I - 56 of 2018, eight persons have been arraigned as accused; whereas, in the complaint being C.R. No. I - 57 of 2018, nine persons have been arraigned as accused. In both the complaints, a majority of the accused are alleged to be armed with deadly weapons like iron-pipes, swords, clubs, etc. The involvement and role played by the accused in both the complaints could be determined only in the proceeding before the trial Court and the present proceeding is not the appropriate forum. In the opinion of this Court, the case against the applicants in both these matters do not fall within the category of being an exceptional case where the inherent powers under Section 482 of Cr.P.C. could be exercised in favour of the applicants. Thus, considering the facts and circumstances of the case and the nature of allegations made in both the complaints, this Court finds no reasons to exercise its inherent powers under Section 482 of Cr.P.C. in favour of the accused in these two petitions.

CONCLUSION:

22. In the result, the following final order is passed:-

   R/CR.MA/21211/2018                              JUDGMENT DATED: 01/07/2021




       (a)       Criminal Misc. Application No.21211 of 2018 is allowed.

The impugned First Information Report being C.R. No. I - 57 of 2018 registered with Danta Police Station and the consequential proceedings initiated pursuant thereto are quashed and set aside only qua the applicant-original accused No.3. Rule is made absolute.

(b) Both Criminal Misc. Application No.21214 of 2018 and Criminal Misc. Application No.3525 of 2019 are dismissed. Rule is discharged.

( GITA GOPI, J )

PRAVIN KARUNAN