Rajkunvar Rajiv Perti vs State Of Gujarat
2023 Latest Caselaw 3620 Guj

   R/CR.MA/2624/2018                              ORDER DATED: 29/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 2624 of 2018

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                         RAJKUNVAR RAJIV PERTI
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR INDRAVADAN PARMAR(2738) for the Applicant(s) No. 1
for the Respondent(s) No. 3
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 2
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 29/04/2023

                               ORAL ORDER

1. By this application under Section 482 of Cr.P.C., the applicant Smt. Rajkunvar Rajiv Perti, has invoked the inherent jurisdiction of this Court with a prayer to quash the First Information Report being C.R.No.II-2 of 2018 registered with Chanod Police Station, Dist: Vadodara Rural, for the offences punishable under Sections 504 and 506(2) of the Indian Penal Code and sections 3(2)(va) and 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. Facts and circumstances giving rise to file present application are that, the respondent-complainant is resident of Village: Nava Mandva, Taluka: Dabhoi, Dist: Vadodara. The applicant along with her family members

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also residing at the same village. The complainant belongs to Scheduled Tribe as by caste she is "Bhil". The incident alleged to have been occurred on 25.01.2018 at about 12:00 p.m. The applicant is residing with her family in an ancestral property at Village: Nava Mandva. On the ground floor of the bungalow, the other family persons namely Jyotindrasinh, Prataprai with whom the property dispute is going on and suit for annulment of the sale- deed, filed by the applicant herein is pending before the Civil Court. The respondent-complainant is housemaid employed by the Jyotindrasinh and others, for doing daily household work. It is alleged that, on the day of incident, when the complainant about to reach the ground floor of the bungalow, the applicant herein, thrown off the water upon the complainant from the first floor of the house. The complainant cautioned the applicant, that she should have taken care, while throwing the water. On hearing the complainant, the applicant herein annoyed from the words spoken by the complainant and abused her with the name of her caste and also threatened her that, she will restrain her to work as a maid servant and also said that, she will cause physical harm to her. It is further alleged that, at the time of incident, the persons namely Jyotindrasinh Harnathsinh, Prithvirajsinh Jyotindrasinh and Minakumari were present at the place. In such circumstances, the FIR came to be filed for the alleged act of criminal intimidation, intentionally insult with intend to provoke breach of the peace and act of intentional insult with intend to humiliate complainant,

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hurling abuses to her caste.

3. This Court has heard Mr. Indravadan Parmar, learned counsel for and on behalf of the applicant, Mr. Pathik Acharya, learned counsel for the original complainant and Ms. Vrunda Shah, learned Additional Public Prosecutor for the respondent-State.

4. Mr. Indravadan Parmar, learned counsel for the applicant submitted that, the applicant Smt. Rajkunvar Perti - a Princess of erstwhile Mandva State, is living with her family in an ancestral property, situated at Village: Nava Mandva. The applicant and her family members residing at first floor of the bungalow, whereas, on the ground floor, the other family members namely Jyotindrasinh Harnathsinh and others are residing, with whom the relations of the applicant are not cordial, as interse dispute with regard to ownership and possession of the said residential property is going on. The applicant and others have filed a Special Civil Suit No.18 of 2017 against Jyotindrasinh and others, for annulment of sale- deed dated 01.08.2016 allegedly executed between Pravinakumari wd/o. Late Pratapsinh and Shri Jyotindrasinh Harnath Kunvar and other declaratory reliefs. On the other side, Special Civil Suit No.21 of 2017 has been subsequently filed by Jyotindrasinh Harnathsinh against the plaintiffs (applicants) praying for possession of the first floor of the bungalow. Both the suits are pending before learned Civil Court at Dabhoi for adjudication. It is in this context, Mr. Parmar, learned

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counsel for the applicant submitted that, the respondent- complainant employed as a housemaid by Shri Jyotindrasinh Harnathsinh. Thus, therefore, he submitted that, in order to grab the ownership, occupation and possession of entire ancestral property which is subject matter of civil suit, the holder of the ground floor namely Jayendrasinh and others had used the complainant as a pawn for filing false and frivolous questioned FIR against the applicant abusing the process of law. The applicant being a well-cultured, law abiding woman hailing from a royal family, has been falsely implicated in the alleged offence so as to pressurize to settle the dispute of property.

5. Mr. Parmar, learned counsel submitted that, in the backdrop of aforesaid facts and circumstances, the allegations made in the FIR accepted as it is, do not prima-facie constitute any offence or make out a case against the applicant. The action on the part of the complainant to lodge an FIR is ill-motivated and she had been used as a pawn in such concocted and fabricated story that had been conspired by her masters/employers so as to get possession of the property and to compel the applicant to abandon her legal pursuit. In nutshell, he submitted that, the allegations having been made deliberately, giving criminal colour to an existing ancestral property, civil dispute.

6. Lastly, Mr. Parmar, learned counsel submitted that, this is a classic example of sponsored criminal prosecution and

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the allegations seems to be patently absurd and improbable which are manifestly attended with malafide and ulterior motive for settling the score and wrecking vengeance and therefore, continuation of the proceedings would amount to abuse of process of law and Court and this is a fit case for exercising inherent powers to quash the criminal proceedings.

7. On the other hand, Mr. Pathik Acharya, learned counsel appearing for and on behalf of the original complainant and State counsel Ms. Vrunda Shah, countering the submissions made by learned counsel for the applicant, contended that, the respondent-complainant specifically stated in her complaint that, she had been insulted and abused with the name of her caste. So far as offence under the provisions of Indian Penal Code are concerned, she has categorically stated that, she was threatened by the applicant, in the presence of independent persons. In this background, it was submitted that, prima-facie offence alleged is made out against the applicant herein. All the submissions made at bar relate to the disputed question of fact which cannot be adjudicated upon by this Court in the proceedings under Section 482 of Cr.P.C. It is settled law that, power of quashing of criminal proceeding should be exercised very sparingly and with circumspection and that too, in rarest of rare cases. The allegation of malafide, would not itself ground for quashing of criminal proceeding as the criminal proceedings, if otherwise, justifiable and based upon

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sufficient evidence, does not become vitiated on account of malafide. The submission advanced by the applicant with regard to dispute of property and the complainant being instrumentality in filing the FIR cannot be looked into at this stage by the Court as it is in the form of defense which require to be considered by the trial Court. Lastly, it was submitted that, no case is made out for quashing of the FIR and I.O. should be permitted to complete the investigation in accordance with law.

8. In support of the aforesaid contentions, learned counsel Mr. Acharya relied upon the following judgments:

(i) Renu Kumari vs. Sanjay Kumar & Ors. (2008) 12 SCC 346

(ii) Ramveer Upadhyay & Anr. Vs. State of U.P. (2022) SCC Online SC 484

9. Having heard learned counsel appearing for the respective parties and having considered the allegations leveled in the FIR and material placed on record, the only question that falls for my consideration is whether the FIR liable to be quashed in exercise of extraordinary inherent jurisdiction.

10. The Apex Court in a number of cases has laid down the scope and ambit of High Court's power under Section 482 of Cr.P.C. Every High Court has inherent powers to act Ex debito justitiae to do real and substantial justice, to prevent abuse of process of Court and it can be exercised

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to give effect to an order under the Code; to prevent abuse of process of Court; and to otherwise secure the ends of justice.

11. Apex Court in State of Karnataka vs. L. Muniswamy & Ors. (1977) 2 SCC 699 observed that, a Court proceedings ought not to be permitted to degenerate into weapon of harassment or persecution. The Apex Court observed that, ends of justice are higher than the ends of mere a law though justice must be administered according to laws made by the legislature.

12. Laying down the scope of interference by the High Court in the matter of quashing of the FIR, the Apex Court in the State of Haryana and others vs. Bhajanlal and others (1992) SC 1 335, has laid down the guidelines that must be adhered to while exercising inherent powers under Section 482 of the Cr.P.C. The relevant paragraph reads thus:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of 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 265 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 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

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instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. In the case of Janata Dal vs. H. S. Chowdhary, 1992(4) SCC 305, Apex Court observed as under:

"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that their decision in exercise of this power is based on sound principles. In Roy V.D. v. State of Kerala observed thus: (SCC p.597, para 18) "18. It is well settled that the power under Section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."

14. In the case of All Cargo Movers (India) Private Limited and others vs. Dhanesh Badarmal Jain and another, (2007) 14 SCC 776, the Apex Court held that

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the criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of process of the Court. The Court held in paragraph 16 of the judgement as follows:

"16. .. .. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."

15. In the case of Manoj Mahavir Prasad Khaitan vs. Ram Gopal Poddar and another, (2010) 10 SCC 673, the Apex Court held that the allegations themselves are so absurd that no reasonable man would accept the same. The High Court could not have thrown its arms in air and expressed its inability to do anything in the matter. The Apex Court held as follows:

"12.We reiterate that when the criminal Court looks into the complaint, it has to do so with an open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter.

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Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interests of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C."

16. In Inder Mohan Goswami and another vs. State of Uttaranchal , 2008 (1) SCC(Cri.) 259, it is observed by the Apex Court that frustrated litigant should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal Court. The Apex Court held thus:

"29. In Chandrapal Singh v. Maharaj Singh in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in para 1 at page 467 as under:

"A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous."

30. The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court."

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17. In the case of Kapil Agarwal and others vs. Sanjay Sharma and others, (2021) 5 SCC 524, the Apex Court observed that section 482 of the Code of Criminal Procedure, does not achieve the purpose of ensuring that the criminal proceedings are not permitted to generate into weapon of harassment.

18. In light of the aforestated preposition of law and applying the same to the facts and circumstances of the present case, this Court is of opinion that, the respondent-complainant was working as Housemaid with opposite party of the applicant namely Jayendrasinh and others. The property dispute with regard to execution of sale-deed and possession thereof is going on and since 2017, it is pending before the Civil Court, Dabhoi. In the instant case, what appears is that, in the entire complaint, nowhere it is mentioned that, the applicant- accused is not member of SC or ST Caste and she was intentionally abused with the name of her caste. In the case of Gorige Pentaiah vs. State of A.P & Ors. (2008) 12 SCC 531, the Apex Court in para-6 of the judgment held that, non-disclosure of the fact that, the accused is not a member of SC/ST Community, the provision of the Atrocities Act are not attracted. It is further held by the Apex Court that, when the basic ingredients of offence are missing in the complaint, then, permitting such complaint to continue and to compel the accused to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

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19. Even otherwise, it is evident that the respondent- complainant being a housemaid of the opposite party with whom the dispute of property is going on and matter is pending before the competent Civil Court.Thus, this Court is of prima-facie considered view that, she had been used as a pawn to lodge a false and frivolous FIR against the applicant herein. Upon careful reading of FIR, this Court is of prima-facie view that, the entire incident as narrated seems to be patently absurd and improbable. The presence of three persons of the family who are residing at the ground floor of the house, speak voluminous. Thus, this Court is in complete agreement with the contention raised by the applicant herein that, the allegations made in the FIR are patently absurd and improbable and proceedings initiated is manifestly attended with malafide for wrecking vengeance on the applicant- accused.

20. For the foregoing reasons, it is duty of the Court that criminal proceedings are not used for settling the score or to pressurize the parties to settle civil disputes and it is the classic case wherein the provisions of the Atrocities Act having been misused by the rival parties using their housemaid which is nothing but amounts to abuse of the provision of the Act. The Apex Court in the case of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra & Anr. (2018) 6 SCC 454, while dealing with the abuse of the provisions of Atrocities Act, observed that, it has been judicially acknowledged that

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there are instances of abuse of the Act by vested interest against the opponents and complaints are filed with oblique motive. The Apex Court in para-67 of the judgment observed that, innocent citizens are termed as accused which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to wreck personal vengeance. Thus, therefore, the present case is fully covered by the categories (i), (v) and (vii) as enumerated by the Apex Court in the case of Bhajanlal (supra).

21. Resultantly, this application is allowed. The FIR being C.R.No.II-2 of 2018 registered with Chanod Police Station, Dist: Vadodara Rural as well as other consequential proceedings are hereby quashed and set aside qua the applicant herein. Accordingly, Rule is made absolute. Direct service is permitted.

(ILESH J. VORA,J) TAUSIF SAIYED