Gujarat High Court

Narvatsinh Motisinh Chauhan vs State Of Gujarat on 6 April, 2023

Bench: Gita Gopi

     R/CR.RA/1038/2018                          ORDER DATED: 06/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 1038 of 2018

                                  With

           R/CRIMINAL REVISION APPLICATION NO. 1039 of 2018
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                NARVATSINH MOTISINH CHAUHAN & 1 other(s)
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MR.UJJAWAL P JAYSWAL(9764) for the Applicant(s) No. 1
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 06/04/2023

                         COMMON ORAL ORDER

1. Both the applications are heard together and

therefore they are disposed of by this common order.

2. By way of these applications, the applicants

challenge the judgment and order dated 23.07.2018

passed below Exhibit-4 by learned Special Designated

Court (Atrocity) in Atrocity Case No.94 of 2016, which

was an application for praying to discharge under section

227 of the Code of Criminal Procedure.

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

3. The case of the prosecution is that the

complainant was working as armed police constable and

on 22.04.2012, he was posted at voting machine strong

room at Gujarat Warehousing, where apart from the

complainant two other constables were also allotted

duties, but had not come on duty. One Head Constable

Shri Natubhai informed the complainant of his inability to

join the duty owning to ill health.

3.1 It is further the case of the complainant that

the accused nos.1 and 2 visited his point to verify the

presence of the armed Police Constables and Guards and

since did not find others, they took away their rifles and

deposited in police headquarter. Again at 01.:00 a.m.,

both the accused visited him and verified the cartridges.

It is alleged by the complainant that after showing

cartridges and while he was loading his rifle magazine, as

five cartridges were loaded in the rifles, accused no.1

gave him stick blow on his hand and insulted by his caste.

It is alleged by the complainant that since he was thirsty,

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

had called for water from the accused, who had given him

some red colour liquid by stating it to be medicine for

pain, but as the complainant did not consume the same,

he was beaten. The complainant, thus, alleges that he

was made to consume the liquor and later on he was

framed under the false case of prohibition and since he

was beaten by stick and sustained injury, he gave the

written complaint before the Chief Judicial Magistrate,

Ahmedabad on 07.02.2013, which came to be converted

into an FIR.

4. Mr. Ashish M.Dagli, learned advocate for the

applicants submitted that the complainant and the

accused were serving in the police department and the

act alleged is on public duty, and now the complainant,

since deceased, his wife does not want to pursue with the

matter. Mr. Dagli stated that the complainant died on

03.01.2020 and the order impugned is of 23.07.2018.

4.1 Mr. Dagli submitted that as the complainant

was arrested on 20.04.2012 in connection with the FIR

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

under sections 66(1)(B) and 85(1)(3) of the Prohibition

Act, he was produced before the learned Chief

Metropolitan Magistrate at Ahmedabad on 21.04.2012,

and thus, out of grudge, a private complaint was filed

under section 156(3) of the Cr.P.C., which came to be

converted into F.I.R. after one year. Mr. Dagli submitted

that there is no direct allegations against the present

applicants; the only act which attributed is that, as police

personnel they had accompanied accused no.1, and all

were on policy duty, and thus a prayer was made before

the trial Court to discharge the applicants.

4.2 Mr. Dagli further stated that the alleged act

was within the strong room, it would not be within the

public view and general public would be kept away from

the strong room. Thus, the alleged act would not be

considered to be in the presence of any public view.

5. The widow of the complainant Geetaben

Chauhan is before this Court and filed her affidavits. She

states that her husband was actually not willing to

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

proceed with the complaint, who passed away on

03.01.2020, and M.Case No.1 of 2014 got converted into

Atrocity Case No.94 of 2016 before the learned Special

Judge, Ahmedabad, and she has no objection if the

applicants are discharged from the offence.

6. This Court verified the contents of the affidavits

from the wife of the complainant, copy of the death

certificate of the complainant, which is placed along with

affidavits, the wife of the complainant states that

Prohibition case against her husband stood abated and

since all were working in the same department, she does

not want to pursue the matter further.

7. Ms. Maithili Mehta, learned APP submits that

there may not be at present prima facie case to consider

a case of atrocity, but examining of statement of

witnesses and the very fact that complainant himself had

given a private complaint before the Magistrate

concerned for registration of F.I.R., the same need not be

compounded or be considered as settled, as that would be

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

against the very object of Atrocity Act.

8. In the case of Parthvi Raj Chauhan v. Union

of India and Others reported in [(2020) 4 SCC 727],

the Hon'ble Supreme Court (per: Hon'ble Justice S.

Ravindra Bhatt) referred to the judgment rendered in

case Raghunathrao Ganpatrao vs. Union of India,

reported in 1993 (1) SCR 480, held as under:

"In our considered opinion this argument is misconceived and has no relevance to the facts of the present case. One of the objectives of the Preamble of our Constitution is 'fraternity assuring the dignity of the individual and the unity and integrity of the nation.' It will be relevant to cite the explanation given by Dr. Ambedkar for the word 'fraternity' explaining that 'fraternity means a sense of common brotherhood of all Indians.' In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasis and re-emphasis that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common

R/CR.RA/1038/2018 ORDER DATED: 06/04/2023

citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome."

9. Here, the complainant died and her wife does

not want to pursue the matter and stated of settlement.

The facts of the case suggest that the applicants had

accompanied the main accused at the place, where the

complainant was posted on duty regarding the voting

machine strong room at Gujarat Warehousing, and FIR

under the Prohibition Act was filed against the

complainant and after a long considerable delay, a private

complaint is filed, and no complaint has been filed before

the special authority under the Atrocity Act.

10. Taking into consideration the nature of

allegation and since there is no direct act of any abuse to