Gujarat High Court

Thakor Jagaji Chenaji vs State Of Gujarat on 3 September, 2021

Bench: B.N. Karia

       R/SCR.A/64/2016                             ORDER DATED: 03/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 64 of 2016
                                 With
             R/CRIMINAL MISC.APPLICATION NO. 22354 of 2015
                                 With
              R/CRIMINAL MISC.APPLICATION NO. 2574 of 2017
==========================================================
                           THAKOR JAGAJI CHENAJI
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
==============================================================
Appearance: [Special Criminal Application No. 64 of 2016]
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1
Mr.Valimohammed Pathan for the Respondent(s) No. 2
Mr. H.K.Patel, APP (2) for the Respondent(s) No. 1
========================================================
Appearance: [Criminal Misc. Application No. 22354 of 2015]
MR. K.S.KOTAI,LD.ADVOCATE for the Applicant(s) No. 1
Mr.Valimohammed Pathan for the Respondent(s) No. 2
Mr. H.K.Patel, APP (2) for the Respondent(s) No. 1
=======================================================
Appearance: [ Criminal Misc. Application No. 2574 of 2017]
MR.J.G.GADHAVI, LD.ADVOCATE for the Applicant(s) No. 1
Mr.Valimohammed Pathan for the Respondent(s) No. 2
Mr. H.K.Patel, APP (2) for the Respondent(s) No. 1
===============================================================
     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 03/09/2021

                            COMMON ORAL ORDER

Copies of five different complaints filed by the respondent No.2

are taken on record.

1. Rule in Special Criminal Application No. 64 of 2016 & Criminal

Misc. Application No. 22354 of 2015. Mr.Valimohammed Pathan,

learned advocate waives service of notice of rule for and on behalf

of respondent No.2 and Mr. H.K.Patel, learned APP waives service of

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

notice of rule for and on behalf of the respondent -State in both these

applications.

2. These group of three petitions arising from the common

criminal complaint lodged before the Mehsana Taluka Police

Station being C.R.No.I-268 of 2015 filed by the respondent No.2-

Sanjaykumar Jethabhai Parmar against present applicants-accused

persons, who have approached this Court under Articles 226 and 227

of the Constitution of India and under Articles 14 and 16 r/w.

Section 482 of Code of Criminal Procedure with a request to quash

and set aside the impugned complaint.

3. Learned advocate appearing for the respective applicants as

well as learned advocate appearing for the respondent No.2 and

learned APP for the respondent-State have requested to dispose of

these three petitions with common order, as three petitions are

arising from the same FIR. Hence, the common order is passed.

4. Heard Mr.Yogendra Thakore, learned advocate for the

applicant in Special Criminal Application No. 64 of 2016; Mr.

K.S.Kotai, learned advocate for the applicant in Cri. Misc.

Application No. 22354 of 2015; Mr.Jigar Gadhavi, learned advocate

for the applicant in Cri. Misc. Application No. 2574 of 2017 and

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

Mr.Valimohammed Pathan for respondent No.2 and Mr. H.K.Patel,

learned APP for the respondent -State in these petitions.

5. It is submitted by Mr. Yogendra Thakore, learned advocate

appearing for the applicant in Special Criminal Application No. 64

of 2016 that completely bogus FIR was filed against the present

applicant. It is submitted that the applicant namely Thakore Jagaji

Chenaji, on 6th November, 2015, was present in the Court

premises of Mehsana District Court and he had also given an

application before the learned Judicial Magistrate First Class,

Mehsana, pursuant to the notice issued against him being surety of

the accused namely Prajapati Gunvantbhai in a criminal case giving

assurance that the accused will remain present before the Court.

Learned advocate has referred pursis produced at annexure "B"

dated 6th November, 2015. It is further submitted that the applicant

is falsely implicated in the said incident with malafide intention. It is

further submitted that in the entire complaint, it is nowhere stated

that the applicant was not a member of Schedule Caste or Schedule

tribe and he intentionally insulted or with intent to humiliate the

complainant. It is further submitted that when the basic ingredients

of the offence are missing in the complaint, the continuation of the

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

complaint would totally be unjustified leading to abuse of process

of law. It is further submitted that Section 506(2) of the Indian Penal

Code would not attract in the present case, as there was no criminal

intimidation on the part of the applicant. The essential ingredients to

constitute an offence, as has been defined under Section 503 of

Indian Penal Code and Section 506 of Indian Penal Code are absent

in the complaint itself. It is further submitted that the complainant is

a habitual of lodging such type of complaint against members who

are not from schedule caste and schedule tribe. He has produced five

different complaints registered against different persons by the same

complainant under the provisions of Atrocities Act. It is further

submitted that respondent No.2 has misused process of law and false

case was registered against the applicant. In support of his

arguments, he has referred the order passed in Special Criminal

Application No. 1785 of 2017 dated 4 th August 2021 and requested

to quash and set aside the impugned complaint.

6. Learned advocate Mr.Jigar Gadhavi appearing for the

applicant in Criminal Misc. Application No. 2574 of 2017 has

submitted in his arguments that in the complaint lodged against the

present applicant, it is nowhere averred that any offence is made

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out against the present applicant. It is further submitted that the

applicant was not present at the place of offence at the relevant point

of time. That, the complainant is indulged in the activities of

blackmailing the persons and extorting money out of the said

activities. That, respondent No.2 original complainant has registered

various FIRs invoking the provisions of The Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities)Act, 1989 against the

different persons including the present applicant. Learned advocate

has referred complaint filed by respondent No.2 against another

accused persons registered with Visnagar Taluka Police Station

being II-CR No.1 of 2011 dated 10th January, 2011 under Section

504, 114 of IPC as well as Section 3(1)(x) of the Atrocity Act. He

has further drawn attention of this Court towards settlement of his

aforesaid complaint before this Court in Criminal Misc. Application

(For quashing & setting aside FIR) No. 1049 of 2013 passed on 14 th

October, 2013. That, respondent No.2-original complainant in the

aforesaid FIR was present before this Court and stated that

compromise has been arrived at between the parties and he has no

objection if FIR is quashed. That, conduct of the complainant and

facts that after registering the false FIR, he has settled the dispute.

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

That, even if the allegations in the FIR are seen, no offence is made

out against the present applicant and story shown in the FIR is

completely false, vexatious and vague. In support of his arguments,

learned advocate appearing for the applicant has relied upon the

decision rendered in case of Jivanbhai Devjibhai Bhogayata Vs.

Mohanbhai Purshottam Mokariya Brahmin reported in 2015(0)

AIJEL-HC-232377 wherein, it is held as under :-

"15. The above takes me to consider whether any case is made out so far as the offence under Section 506(2) of the IPC is concerned. Section 506 reads as under:-

"S. 506. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine,or with both;

and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

16. The essential ingredients -- The offence of criminal intimidation has been defined under Section 503 I.P.C. and Section 506 I.P.C. provides punishment for it.

Sec.503 reads as under:- "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.

Explanation: - A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section. An offence under Section 503 has following essentials:-

     1.         Threatening       a        person      with       any        injury;
     (i)       to     his     person,       reputation    or      property;       or

(ii) to the person, or reputation of any one in whom that person is interested.

      R/SCR.A/64/2016                                      ORDER DATED: 03/09/2021



      2.         The         threat        must        be         with        intent;
      (i)       to       cause       alarm       to       that       person;      or

(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or

(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.

17. A bare perusal of Section 506 of the I.P.C. makes it clear that a part of it relates to a criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. Let me assume for the moment, what has been alleged in the complaint is true, even then, mere threats given by the accused, not with an intention to cause alarm to the complainant, would not constitute an offence of criminal intimidation.

7. That, there is nothing indicate in the FIR that any criminal act

is committed by the present applicant, as there is no specific role

constituting any offence by the applicant. Considering the entire

averments made in the complaint, none of the ingredients of the

offence under Section 143, 147, 148, 149, 504 and 506(2) of Indian

Penal Code and u/s. 3(1)(10) of the The Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities Act as well as u/s. 135 of

the Gujarat Police Act is made out. Hence, it was requested by

learned advocate for the applicant to quash and set aside the

impugned complaint.

8. Learned advocate for the applicant in Criminal Misc.

Application No. 22354 of 2014 has also supported the arguments

advanced by learned advocate appearing for the applicant in another

two connected matters i.e. Special Criminal Application No.64 of

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

2016 & Criminal Misc. Application No. 2574 of 2017 and

submitted that at the time of alleged offence, the applicant was not

present at the place of offence. As per the averments made in the

FIR, respondent No.2 was working as Sarpanch of the Heduva

village and was engaged with the construction work of the road at

that time original accused No.4 came and some abuse words were

spoken to the respondent No.2 That, from the FIR itself, no

allegations are made against the present applicant as he was not

present at the time of incident. That, looking to the entire FIR no

offence is made out against the present applicant and therefore, it

was requested by him to quash and set aside the impugned

complaint registered against him.

9. Learned advocate for the respondent No.2 has vehemently

opposed the arguments advanced by learned advocate appearing for

the applicant and submitted that however,respondent No.2 was

expired during the pendency of these petitions, the prayer made by

the applicant cannot be allowed by this Court by quashing and

setting aside the impugned complaint. That, he tried to bring on

record the legal heirs of the respondent No.2 but, he was not

succeeded. He has referred the contents of the complaint and argued

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

that at the time of committing an offence, the applicants

intentionally insulted, humiliated and harassed the complainant by

abusing language and threat him to commit murder. It is further

submitted that police control room was immediately informed and

after arrival of the police, sitting in the police vehicle, immediately

FIR was lodged by the complainant. That, labourers were working

at the place of offence and other members of the gram panchayat

namely Vikramsinh Krupaji was also accompanied with the

complainant. It is further submitted that prima facie offence is

clearly committed by the present applicants as they are arraigned as

an accused from the beginning by the complainant in his complaint

dated 6th November, 2015. It is further submitted that without

investigation and recording evidence of the prosecution witness, this

Court may not exercise the powers under Section 482 of Cr.P.C .

Hence, it was requested by learned advocate appearing for the

respondent No.2 to dismiss the present applications.

10. Learned APP appearing for the respondent No.1-State has

supported the arguments advanced by learned advocate for the

respondent No.2 and submitted that it was not first incident of

committing offence. That, genuine complaint was lodged by the

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

respondent No.2 referring previous incident also of giving threat to

the complainant and disturbing him in construction work of the road

by the present applicants. Referring Section 8 of the Atrocities Act,

it is argued that when number of persons are committing offence

under the Atrocity Act, if it is proved that the offence was

committed was a sequel to existing dispute regarding land or any

other matter, it shall be presumed that the offence was committed in

furtherance of the common intention or in prosecution of the

common object. Learned APP has further referred the contents of

the complaint filed by the respondent No.2 and submitted that as

complainant was engaged in construction work of road, in previous

occasion also, he was threatened by the present applicants and

therefore, he had also approached SC-ST cell previous in time, That,

presumption under Section 8 of the Act requires to be drawn against

the present applicants under the Act . It is further submitted that

investigation is still required however, complainant is expired. At

this juncture, this Court may not exercise the powers by quashing

and setting aside the impugned complaint under Section 482 of

Cr.P.C. Hence, it was requested by leanred APP for the respondent -

State to dismiss the present applications.

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

11. Having heard learned advocates appearing for the respective

applicants as well as learned advocate for the respondent No.2 and

learned APP for the respondent State, it appears that on 1 st

December, 2015, this Court had issued notice to the respondents

with the permission to proceed further investigation. However, it

was ordered not to take coercive steps against the present applicants.

It appears that on 6th November, 2015, impugned complaint was

filed by the respondent No.2 before the Mehsana Taluka Police

Station alleging that one Madhubhai Akhani who is serving in

ONGC Ltd. was creating hurdles while making road as well as

Madhubhai Akhani through some persons also threatened him. It is

further alleged that at about 14:10 to 14:30 on 6 th November, 2015

Madhubhai Akhani along with one Gordhanbhai came there and

asked to stop the construction of road as the said land belongs to

their ownership. Pursuant to the said issue, the complainant had

informed Madhubhai Akhani to bring stay with regard to the same

issue. At the same time, the applicants along with Kanjibhai

Mavjibhai Desai who was also one of the applicants sent 7-8 persons

with stick for beating complainant. As per averments made in the

complaint that those persons had abused the complainant by caste

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and in this manner, the aforesaid complaint came to be filed against

the present applicants. From the bare reading of the complaint

lodged by the respondent No.2, it appears that another applicants had

talked with the complainant at about 14:10 to 14:30 on 6 th

November, 2015. From the bare reading of the complaint, prima

facie, it appears that none of the applicants were present at the time

of committing the alleged offence. As per say of the complainant in

his complaint, under the instructions of Madhubhai Akhani and

Kanjibhai Mavjibhai Desai as well as Chenaji Thakore, 7-8

unknown persons were sent to assault the complainant with wooden

stick and they abused the complainant and gave threat to commit

murder. It appears that present complainant has never alleged in the

complaint that any of the applicants have insulted or humiliated

with intent to commit an offence as alleged by the prosecution.

Complainant had immediately rushed to his house and informed the

control room. It further appears that police has reached at the house

of the complainant and complainant himself went to police station

by sitting in police vehicle. If we consider Section 3(1)(x) of the

Act, which provides as under :-

{x} intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place

R/SCR.A/64/2016 ORDER DATED: 03/09/2021

within public view is absolutely necessary.

12. If we consider the entire complaint, there is no iota in the avements

made by the complainant that any words were used by the applicants

intentionally insulting him or intimidated him with intent to humiliate

having knowledge that complainant was member of a Scheduled Caste or

a Scheduled Tribe in any place. It is no where stated in the complaint that

the applicants were not member of SC/ST community and complainant

was intentionally insulted or intimidated by the accused persons with

intent to humiliate him in any place within public view. Here, also to

attract the provision of Section 3(1)(x) of the Atrocities Act, it should be

specifically incorporated by the complainant in his complaint that the

applicants had insulted and intimidated him with an intent to humiliate

being member of SC/ST in any place within public view. He must

incorporate in his complaint that the applicants abused as he being

member of SC/ST but, here, the complaint is completely silent to attract

Section 3(1)(x) of the Atrocities Act. As there is no allegations made in

the complaint that any of the applicants intentionally insulted or

intimidated with intent to humiliate a member of a Scheduled Caste or a

Scheduled Tribe in any place within public view, at this juncture, this

Court would like to refer the judgement rendered in case of Hitesh

Verma Vs. State of Uttarakhand and Anr. reported in (2020) 10 SCC

710 wherein, is observed as under:-

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"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 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 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.

13. The same view was taken in similar matter by this Court in Special

Criminal Application No. 1785 of 2017 vide order dated 4.8.2021.

Further it appears from the different complaint lodged by

respondent No.2 under the provision of Atrocities Act, that complainant

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is in habit of lodging such type of complaints against different persons.

After registering the complaint under the provisions of Act, he is settling

his disputes with the accused persons which transpires from the order

passed in Criminal Misc. Application [For quashing & set aside

FIR/ORDER ] No. 15049 of 2013 dated 24 th October, 2013 wherein, the

same provision of Section 3(1)(x) of the Atrocities Act was applied by

him as well as Section 504 and 114 of IPC and thereafter, he settled the