Gujarat High Court

Pramodbhai Murlidharbhai Pathak vs State Of Gujarat on 1 August, 2023

Bench: Sandeep N. Bhatt

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 11390 of 2021

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                     PRAMODBHAI MURLIDHARBHAI PATHAK
                                  Versus
                         STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
NOTICE SERVED BY DS for the Respondent(s) No. 2 - Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 01/08/2023

                                      ORAL ORDER

1. The present petition is filed by the petitioner

under Section 482 of the Code of Criminal Procedure, 1973,

for quashment of the impugned FIR being

C.R.No.11199021211854 of 2021 registered with the

Ankleshwar G.I.D.C. Police Station, District : Bharuch for the

offences punishable under Sections 323, 325, 504, 506(2) and

114 of the Indian Penal Code and Sections 3(1)(r), 3(1)((s)

and 3(2)(va) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act.

2. The brief facts of the prosecution case are that

there was a quarrel between the children - who are minors

while playing cricket and therefore, the applicant, along with

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other, came there and beaten the son of the complainant and

uttered words by naming towards his caste. Hence, the

impugned complaint.

3. Heard learned advocates. Rule. Learned APP

waives service of notice of rule on behalf of the respondent -

State. Though served, the complainant has chosen not to

appear and contest this petition before this Court.

4.1 Learned advocate Mr. Majmudar for the petitioner

has submitted that this is a complaint with mala fide

intention. He has submitted that the impugned FIR is filed

by the complainant with an oblique and ulterior motive and

to harass the applicants. He has submitted that it is a

simple quarrel of minor children while playing cricket and

nothing else. The alleged incident was happened on

08.11.2021 and the impugned complaint is lodged on

12.11.2021. He has submitted that the complainant has given

a criminal colour to such trifle issue. He has submitted that

there was no incident as alleged in the complaint. He has

submitted that no one supports the case of the prosecution

and there is no evidence against the petitioner which attracts

the offence in question. He has submitted that even no

ingredients of the IPC as well as Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act are satisfied.

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He has submitted that since the complainant belongs to such

community, he has tried to drag the petitioner into false and

fabricated complaint. He has submitted that this is nothing

but abuse of process of law.

4.2 He has submitted that no ingredients are attracted

/ satisfied which culminated into an offence in question. He

has submitted that this is a misuse of the law by the

complainant. He has submitted that during the course of

investigation, there is no material whatsoever against the

petitioner which culminated into the offence in question. He

has submitted that there is no evidence, including the

medical evidence against the petitioner which attracts the

ingredients of the Sections, as invoked in the impugned

complaint. He has submitted that this is a fit case to

exercise the powers under Section 482 of the Code of

Criminal Procedure, 1973 in favour of the petitioner. He has

submitted that this petition may be allowed.

4.3 In support of his submissions, learned advocate for

the petitioner has relied upon the following decisions :

(i) 2008 LawSuit (SC) 2280 - Gorige Pentaiah versus State of A.P.

(ii) (2010) 10 SCC 710 - Hitesh Verma versus State of Uttarakhand

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(iii) 2023 SCC OnLine SC 668 - Ramesh Chandra Vaishya versus State of Uttar Pradesh

5. Per contra, learned APP for the State has

submitted that prima facie offence is made out against the

petitioner. He has submitted that the petitioner has used

such language in front of other persons and thereby caused

offence in question. He has submitted that the petitioner is

not permitted to use such language against the caste of the

complainant as he has insulted the minor son of the

complainant in public place. He has submitted that time and

again, the Hon'ble Supreme Court of India, in catena of

decisions, held that such petitions may not be entertained.

He has submitted that at this stage, this Court may not

exercise the powers under Section 482 of the Code in favour

of the petitioner, which may be used very sparingly. He has

submitted that this petition may be dismissed and let the

petitioner face the trial.

6.1 I have heard rival contentions raised by the

learned advocates for the respective parties. I have perused

the documents available on record. Considering the case of

the prosecution as per the FIR, the following points are

emerged :

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 The original issue is very trifle.

 The minor children were playing the cricket and there

was a quarrel between them.

 The complainant was not present at the time of alleged

incident.

 The complainant had subsequently threatened the

accused person for which accused has given written

complaint on 10.11.2021 but the concerned investigating

officer did not pay any heed to that complaint and not

collected the evidence i.e. CCTV footage, call details,

etc., though requested by the applicant.

 The alleged incident was happened on 08.11.2021,

whereas the impugned complaint is lodged on

12.11.2021.

 No one has supported the story of the prosecution qua

the impugned complaint.

 There was no untoward incident between the petitioner

and the complainant, as alleged.

 Prima facie, any ingredients of any section under the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act as well as under the Indian Penal Code

are not satisfied from bare reading of the impugned

FIR with papers of investigation and such complaint is

filed by the complainant with some ill-intention to

harass the present applicant.

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 The alleged incident is nothing but abuse of process of

law.

By plain reading of the impugned complaint, these

are the points which are emerged from it, which are

necessary to be taken into consideration by this Court at this

stage in this petition under Section 482 of the Code of

Criminal Procedure, 1973.

6.2 Keeping this background in mind, it transpires

that no offence as alleged under the Indian Penal Code or

under the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act is made out against the petitioner.

Under the circumstances, the impugned complaint

is required to be quashed and set aside by exercising the

powers under Section 482 of the Code in favour of the

petitioner.

7. This Court has discretionary powers to exercise if

this Court finds that there is an abuse of process of law, as

held by the Hon'ble Apex Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, which reads as under :

"In the backdrop of the interpretation of the

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various relevant provisions of the Code under Ch.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 Art.226 or the inherent powers under sec.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.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

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(3) 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.

(4) 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 sec.156(2) of the Code.

(5) 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.

(6) 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.

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(7) 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."

8. At this stage, it is also relevant to refer to the

judgment of the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

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24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

9. Further, it would also be fruitful to refer to the

decision of the Hon'ble Apex Court in the case of Gorige

Pentaiah versus State of Andra Pradesh reported in (2008) 12 SCC 531, more particularly Paras : 5 to 8 and 12 thereof, which read as under :

"5. Learned counsel appearing for the appellant submitted that even if all the allegations incorporated in the complaint are taken as true, even then, no offence is made out under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act") and under Sections 447, 427, 506 of the Indian

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Penal Code. As far as Section 3(1)(x) of the Act is concerned, it reads as under :

"3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :-

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."

6. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to

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compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

7. Similarly, we find that the ingredients of Section 506 of the Indian Penal Code are totally absent in the complaint. In the complaint it is not even mentioned that the accused had intimidated or threatened the complainant or any one else. In absence of basic ingredients of the section in the complaint, no case under section 506 IPC can be sustained. Section 506 reads as under :

"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".

8. "Criminal intimidation" has been defined in Section 503 which 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

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execution of such threat, commits criminal intimidation."

12. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised :

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."

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10. It is also relevant to refer to the decision of the

Hon'ble Apex Court in the case of Hitesh Verma versus

State of Uttarakhand reported in (2020) 10 SCC 710, more particularly Paras : 14, 19, 21 and 22 thereof, which read as

under :

"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh and Ors. v. State through Standing Counsel and Ors.. The Court had 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 e.g. 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. The Court held as under :

"28. It has been alleged in the FIR that Vinod

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Nagar, the first informant, was insulted by

Appellants 2 and 3 (by calling him a "chamar")

when he stood near the car which was parked

at the gate of the premises. In our opinion,

this was certainly a place within public view,

since the gate of a house is certainly a place

within public view. It could have been a

different matter had the alleged offence been

committed inside a building, and also was not

in the public view. However, if the offence is

committed outside the building e.g. in a lawn

outside a house, and the lawn can be seen by

someone from the road or lane outside the

boundary wall, the lawn would certainly be a

place within the public view. Also, even if the

remark is made inside a building, but some

members of the public are there (not merely

relatives or friends) then also it would be an

offence since it is in the public view. We must,

therefore, not confuse the expression "place

within public view" with the expression "public

place". A place can be a private place but yet

within the public view. On the other hand, a

public place would ordinarily mean a place

which is owned or leased by the Government

or the municipality (or other local body) or

gaon sabha or an instrumentality of the State,

and not by private persons or private bodies."

19. This Court in a judgment reported as

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Dr.Subhash Kashinath Mahajan versus State of Maharashtra issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India versus State of Maharashtra reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 the Code can be invoked. The Court held as under :

"52. There is no presumption that the

members of the Scheduled Castes and

Scheduled Tribes may misuse the provisions of

law as a class and it is not resorted to by the

members of the upper castes or the members

of the elite class. For lodging a false report, it

cannot be said that the caste of a person is

the cause. It is due to the human failing and

not due to the caste factor. Caste is not

attributable to such an act. On the other

hand, members of the Scheduled Castes and

Scheduled Tribes due to backwardness hardly

muster the courage to lodge even a first

information report, much less, a false one. In

case it is found to be false/unsubstantiated, it

may be due to the faulty investigation or for

other various reasons including human failings

irrespective of caste factor. There may be

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certain cases which may be false that can be

a ground for interference by the Court, but

the law cannot be changed due to such

misuse. In such a situation, it can be taken

care of in proceeding under Section 482 of the

Code."

21. In Gerige Pentaiah, one of the arguments raised was non- disclosure of the caste of the accused but the facts were almost similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment.

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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."

11. It is also fruitful to refer to the judgment of the

Hon'ble Apex Court in the case of Sri Gulam Mustafa versus

State of Karnataka reported in 2023 (0) AIJEL - SC 71008, more particularly paras 36 to 39 thereof, which read as

under :

" 36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than

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not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was not being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.

37. The Court would also note that even if the allegations are taken to be true on their face value, it is not discernible that any offence can be said to have been made out under the SC/ST Act against the appellant. The complaint and FIR are frivolous, vexatious and oppressive.

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38. This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty bound to be vigilant before invoking any provision of a very stringent nature, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position.

39. For the reasons aforesaid, the Court finds that the High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR.

Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside."

12. In view of the above facts and circumstances as

well as the law laid down by the Hon'ble Apex Court, this

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Court finds that the present petition is required to be

allowed by quashing the impugned complaint by exercising

the powers under Section 482 of the Code in favour of the

petitioner.

13. For the reasons recorded above, the following order

is passed.

13.1 This application is allowed.