Vashrambhai Devsibhai Chauhan ( ... vs State Of Gujarat
2021 Latest Caselaw 16651 Guj

     R/SCR.A/3792/2013                                   ORDER DATED: 25/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 3792 of 2013

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                VASHRAMBHAI DEVSIBHAI CHAUHAN ( DALIT )
                               Versus
                     STATE OF GUJARAT & 2 other(s)
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Appearance:
MR ANKIT Y BACHANI(5424) for the Applicant(s) No. 1
MR HB CHAMPAVAT(6149) for the Respondent(s) No. 3
MR MAHESH P PATEL(3381) for the Respondent(s) No. 3
MR. PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 25/10/2021

                                 ORAL ORDER

1. The petition is preferred under Section 482 of Code of Criminal Procedure 1973(for short Cr.P.C.) with a prayer for quashing and setting aside the FIR being C.R. No. II 3060 of 2013 lodged on 8 th December, 2013 registered with Suigam Police Station, District Banaskantha under Section 323, 504, 506(2) and 114 of Indian Penal Code.

2. Petitioner is a teacher serving in primary schools since 21st January, 1980 and he is residing with his family. It is stated that an FIR came to be filed under the allegation that on 8 th December, 2013, when the complainant was going on towards his village from his farm in the morning at about 8.0 o, clock, near the

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residence of Manjibhai Hirabhai, he saw all the accused namely Vashrambhai Dalit- present petitioner, Bharatbhai Dalit, Mavjibhai Dalit and Velabhai freely hitting the son of the uncle man. So, the complainant rushed towards them and started shouting to rescue his cousin. In the meantime, few of the villagers turned at the place of incident and tried to resolve the issues. It is alleged by the complainant, that prior to leaving the place, all the accused had threatened Manjibhai that since he was rescued by the villagers at that time but if he had taken their names again, then he would be killed to death.

3. The complainant on inquiry found that Manjibhai had raised objection against Velabhai of his passing from his farm though there was no right of way. Keeping that grudge in mind, all the accused had joined together and had beaten him. Manjibhai had been sustained injuries on neck and leg; and was taken to the hospital by his family members. Based on the incident, the impugned FIR came to be filed under Section 323, 504, 506(2) and 114 of the Indian Penal Code.

4. Learned advocate Mr. Ankit Y Bachani stated that since the petitioner has challenged the FIR, he was protected by this Court vide order dated 16.12.2013 of

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not taking coercive step aginst applicant. However the court permitted the investigating officer to continue the investigation Mr. Ankit Y Bachani further states that there was a cross complaint filed as CR No. 59 of 2013 under Sections 323, 324, 504, 506(2) and 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1989). Both the complaints were sent up for trial against the remaining accused and since the present petitioner was protected by this Court and no charge-sheet was filed against him.

5. Learned advocate Mr. Bachani further states that in both the matters, one being Criminal Case No. 155 of 2017 and Special Case No. 132 of 2015 (old number as Special Case No. 28 of 2014) judgments of acquittal came to be declared on 22nd January, 2020 and 20th August, 2018 respectively. Learned advocate Mr. Ankit Y Bachani further states after the acquittal in Special Case No. 132 of 2015, the proceedings before the trial court towards the FIR which has been impugned in the matter came to be settled and the complainant moved a compromise pursis at Exh. 37 in Criminal Case No. 155/2017 stating that because of the intervention of the respected people of the village and the representatives of the village, taking into consideration the future and for maintaining goodwill

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between the villagers, the compromise was arrived at. Learned advocate Mr. Ankit Y Bachani further states that the compromise was accepted by the learned Judge on 11.12.2019, but since evidence was already recorded prior to that the learned Judge deemed fit to decide the trial on merits. Learned advocate Mr. Ankit Y Bachani further states that no evidence was found against three of the co-accused persons. The learned judge has observed that there was mere verbal altercation but nothing came on record to prove any offence under Section 323, 504, 506(2) and 114 of the IPC, thus, on that ground that all the co-accused persons were acquitted on 2nd January, 2020.

6. Learned advocate Mr. Ankit Y Bachani further states that pursis which was compromise pursis was filed before the Court on 11.12.2019 after the acquittal judgment in Special Case No. 132 of 2015, the pursis, records the fact that against the acquittal judgment in Special Case No. 132 of 2015, the State proposed to file a revision application. Mr. Ankit Y Bachani states that compromise pursis was recorded by the learned Judicial Magistrate, Suigam. The learned judge had considered the merits of the case and had not found any offence against the co-accused persons. Learned advocate Mr. Ankit Bachani further states that since the learned Judicial Magistrate,

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Suigam did not find any offence, on that ground submits that the FIR against the applicant is required to quash and set aside, since sending the present petitioner before the Court for trial would be absolutely waste of time as prima facie, no offence is made out. The existence of the witnesses have been recorded before the trial court and nothing has come against the present petitioner. Mr. Bachani stated that pendency of the FIR would effect the government job of petitioner and benefits after the retirement.

7. Mr. APP Pranav Trivedi says that the Government may propose to file a special appeal against the judgment in Special Case No. 132/15, but he fairly admitted that no evidence has been found against the accused in Criminal Case No. 155/17 by the Learned JMFC which has resulted into acquittal of the accused. But learned APP Mr. Pranav Trivedi stated that the present petitioner is required to face the trial and a supplementary charge-sheet is required to be filed against him so that the necessary procedures be adopted for the petitioner to face the same fate as that of a co-accused.

8. Heard Ld. advocates on both the sides. Since Special Case No. 132 of 2015 under Section 3(1)(X) of Atrocities Act and allied sections of IPC, has resulted

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into acquittal and even in Criminal Case No. 155/2017, the co-accused persons have been acquitted by the learned JMFC, Suigam on 2nd January, 2020, there would be no reason to send the present petitioner to face the trial.

9. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised.

In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

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(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 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

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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."

10. In the result, the petition is allowed. The impugned complaint being C.R. No. II-3060 of 2013 registered with Suigam Police Station and all consequential proceedings stands quashed and set aside. Rule is made absolute.

(GITA GOPI,J) DIWAKAR SHUKLA