Gujarat High Court

Babubhai Mansangbhai Patel vs State Of Gujarat on 4 August, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/24157/2017                           ORDER DATED: 04/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 24157 of 2017

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                   BABUBHAI MANSANGBHAI PATEL & 5 other(s)
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DIPEN DESAI(2481) for the Applicant(s) No. 1,2,3,4,5,6
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PRASHANT MANKAD(2189) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 04/08/2023

                                ORAL ORDER

1. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`Code' for short) praying

to quash and set aside the impugned FIR being C.R.- I No.54 of 2017 registered at Deodar Police Station, District :

Banaskantha for the offences punishable under Sections 143,

294(B) and 427 of the Indian Penal Code ('the IPC' for short)

and Sections 3(1)(r) and 3(2)(va) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act ('the Atrocities

Act' for short).

2. The brief facts of the prosecution are that, the

alleged incident is happened on 26.08.2017 in the evening,

when the complainant came to his house and he came to

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know from his family members i.e. wife, brothers and sisters,

that in the noon, the applicants came there with JCB

machine and uprooted the trees standing at the land / place

of the complainant and told that the complainant has

encroached upon that land/place and thereby uttered filthy

language by name of the caste - 'Bhil'. Hence, the impugned

complaint which is lodged on 11.09.2017.

3. Heard learned advocates.

4.1 Learned advocate for the applicant has drawn my

attention towards the allegations made in the impugned FIR

and has submitted that the alleged offence does not attract

the provisions of the IPC and the Atrocities Act. He has

submitted that on bare reading of FIR, provisions of the

Atrocities Act cannot be made applicable, more particularly,

in view of the provisions of Sections 3 as there is no offence

at all as alleged, committed by the applicants. He has

submitted that the alleged incident occurred not in public

view and admittedly, as per the allegations made in the FIR,

the incident has occurred at the house of the complainant

which cannot be considered as a public place.

4.2 He has further submitted that from the tenor of

the FIR, it transpires that, the complainant has encroached

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upon the Government land, which the applicants were trying

to remove for the use of public at large, which is obvious

action of the authority, which is obstructed by the

complainant and his family members. He has submitted that

the impugned complaint is nothing but the abuse of process

of law as the alleged incident has happened on 26.08.2017

and the impugned complaint is lodged on 11.09.2017. This is

nothing but misuse of process of law by the complainant.

4.3 He has further submitted that on the next day of

the alleged incident, i.e. on 27.08.2017, the complainant has

given an application to the Deodar Police Station, wherein he

has clearly stated that the applicants were working for

widening of the road which is passing near his house and in

that process, there was a need of cutting the trees which

they were doing and the complainant has refused them not

to cut the trees. He has submitted that in the said

complaint, the complainant has not made any allegations

towards any incident as alleged in the impugned complaint,

so also with regard to the Atrocities Act.

4.4 He has also submitted that the Panchayat Circle

Inspector has written his survey report dated 21.09.2017 to

the Taluka Development Officer, Deodar stating therein that

during the process of widening the road, which is

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reconstructed and repaired by the village persons on their

own expenses, there is no damage to the public and/or

private property.

4.5 He has also submitted that during the course of

investigation, no one has supported the case of the

prosecution. He has submitted that all the witnesses, some of

whom are independent and some of whom are relatives of

the complainant have clearly stated that there was no

untoward incident happened as alleged in the impugned

complaint.

4.6 He has relied on the in the case of Hitesh Verma

V/s State of Uttarakhand and Another reported in 2020 SCC online (SC) 907, more particularly, paragraphs 12, 14 and 15

of that judgment.

5. Per contra, learned advocate for the respondent No.2 - complainant has strongly opposed this application. He

has submitted that prima facie offence is made out against

the applicants and therefore, let the applicants may face the

trial. He has submitted that the applicants are the head-

strong persons and therefore, no leniency may be shown to

them. He has submitted that this application may be

dismissed.

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6. Learned APP for the State has submitted that this

Court should not exercise the powers under Section 482 of

the Code as the same should be exercised very sparingly in

favour of the applicants. He has submitted that prima facie

offence is made out against the applicants and therefore, this

application may be rejected.

7. I have considered the rival submissions made by

the learned advocates for the respective parties and I have

also perused the material on record. From bare reading of

the FIR vis-a-vis from the documents available on record, the

following points are weighed with this Court :

 The alleged incident has happened on 26.08.2017.

 The impugned complaint is lodged on 11.09.2017.

 There is no satisfactory explanation given by the

complainant for lodging such delayed complaint.

 The applicants were doing the work of widening the

road and repairing of the road which is near the house

of the complainant.

 The complainant has given an application on the next

day of the alleged incident to the Deodar Police Station

which was numbered as Chapter Case No.109 of 2017.

The police authority has forwarded the same to the

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learned Executing Magistrate, Deodar on 29.08.2017

(Annexure 'C'), wherein it is specifically mentioned that

the complainant has encroached the Government land.

 The Panchayat Circle Inspector, Deodar has also

forwarded his survey report dated 21.09.2017 to the

Taluka Development Officer, Deodar stating therein that

the village persons were repairing the road on their

own expenses and there was no damage to any public

or private property (Annexure 'D').

 The independent witnesses as well as the witnesses who

are the relatives of the complainant have clearly stated

that there is no untoward incident happened as alleged

in the complaint.

 Prima facie it appears that since the village authority

were trying to remove the encroachment upon the

Government land and since the complainant has also

encroached upon the Government land, the complainant

has used this complaint as a weapon to save his illegal

act.

 This is nothing but abuse of process of law.

8. At the outset, if we peruse the provisions of

Sections 3(1)(r) and 3(2)(va) of the Atrocities Act, they read

as under:

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"3. Punishment for offences of atrocities

1. Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:

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

3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

[(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to suchmember, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;]

9. From the tenor of the FIR, it transpires that the

incident has occurred in the residential premises of the

complainant which cannot be said to have occurred in public

place and in public view, which is a primary requirement for

invoking the above sections.

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10. In the case of Hitesh Verma (supra), it is held in

paragraphs 12, 14 and 15 as under:

"12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view".

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

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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 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

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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."

15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house.

Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet,

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certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."

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

recent decision of the Hon'ble Supreme Court of India in the

case of Sri Gulam Mustafa versus State of Karnataka reported in 2023 (0) AIJEL - SC 71008, more particularly

paras 35 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 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

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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.

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

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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, it is prima facie found that

the provisions of the Atrocities Act are applied in mechanical

manner.

13. In view of the above, if we peruse the allegations

in the present case which is that the applicants / accused

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have uprooted the trees while doing the repairing / widening

work of the road for villagers at the expenses of the village

persons themselves and the complainant has refused to do so

when he himself has encroached the Government land, which

cannot be considered offence under Sections 143, 294(B) and

427 of the IPC and just to hide his illegal act of

encroachment, the present complaint seems to have been

filed. Accordingly, I am of the opinion that this is a fit case

to exercise inherent powers under Section 482 of the Code in

favour of the applicants, at this stage, in such peculiar facts.

14. In the case of Haryana V/s Bhajan Lal reported

in AIR 1992 SC 604, the Hon'ble Supreme Court has settled the guidelines when the Court can exercise powers under

Section 482 of the Code, the relevant paragraph reads as

under:

"In the backdrop of the interpretation of the 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

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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.

(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

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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.

(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."

15. 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

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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.]

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

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court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

16. In view of above settled position of law and after

considering the facts as alleged in the FIR and circumstances

of the present case, it transpires that continuation of further

proceedings pursuant to the said FIR will cause greater

hardships to the applicants and no fruitful purpose would be

served if such further proceedings are allowed to be

continued. The Court must ensure that criminal prosecution

is not used as instrument of harassment or for seeking

private vendetta or with ulterior motive to pressurise accused

or to settle the score.

17. Resultantly, this application is allowed. The

impugned FIR being C.R.- I No.54 of 2017 registered at