Rakeshbhai Somabhai Patel vs State Of Gujarat
2023 Latest Caselaw 5962 Guj

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    R/CR.MA/20830/2013                             JUDGMENT DATED: 17/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 20830 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         RAKESHBHAI SOMABHAI PATEL
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
MS ASMITA PATEL APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                               Date : 17/08/2023

                               ORAL JUDGMENT

This petition is filed under Section 482 of the Code of Criminal Procedure (for short the 'Code') seeking quashment of the FIR being CR No.I-72 of 2013 registered with the Deesa Police Station for the offences punishable under Sections 504,

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332, 353, 186 and 114 of the Indian Penal Code.

2. The facts of the case in nutshell are that by way of an advertisement dated 06/08/2022, the DSP arranged the toeing squad and toeing vehicles. The toeing squad were given task to toe the vehicles which are lying on the public street. The petitioner is holding a medical store viz., Bhavani Medical Stores and on the day of incident, some vehicles were parked outside the shop of the petitioner. According to the allegations, toeing squad reached and started to toe the vehicles parked near the store of the petitioner. The petitioner having aggravated reached to the spot and started speaking filthy and wielding the iron pipe upon the persons of toeing squad and prevented them from doing work. Thus, the FIR in question came to be registered against the petitioner for the alleged offence punishable under Sections 504, 332, 353, 186 and 114 of the Indian Penal Code.

3. In wake of the above circumstances, the petitioner has approached this Court.

4. Learned Advocate Mr.Vishvesh Pujara for Mr.Majmudar for the petitioner submits that reading of the FIR at the face value, it does not disclose the necessary ingredients of the offence in question. He would further submit that the petitioner is an innocent person and has been falsely involved in the offence. He would further submit that looking to the FIR, it is alleged that the petitioner was speaking filthy and was giving kick and fist blows to the person of the toeing squad; but no such material in support thereof is coming on record. He would further submit that on the day of incident near the store of petitioner,

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motorcycle was kept obstructing the vehicles and therefore toeing squad was trying to toe the vehicle but a person tried to stop and meanwhile ruckus took place between them and at that time the petitioner suddenly approaches there and started speaking filthy and was wielding the iron pipe and also beaten the person. He would further submit that looking to these averments made in the FIR, none of the ingredients of the alleged offences are attracted or satisfied and therefore allowing the FIR and continue the investigation and further allowing it into the criminal case is a futile and abortive exercise and therefore prays to quash the FIR.

5. Per contra, learned APP would submit that taking the FIR at face value would spell the ingredients of the offence. She would further submit that submission of learned Advocate for the petitioner to quash the FIR can be tested and tried during the investigation and the trial and therefore FIR cannot be quashed. She would further submit that petitioner has failed to make out any case which permit to scuttle the FIR at the beginning or at nascent stage. She would therefore submit that the petition may be dismissed.

6. At the outset, having referred to the FIR on record, without adding or subtracting any words, the ingredients of assault or criminal force which is principle allegation in the present matter is not disclosed. A bare allegation that the petitioner came out with the iron pipe without being supported by any evidence on record would not cause the assault as defined in Section 351 of the IPC. At the same time, it is difficult to fathom that the person who are engaged in the toeing squad can be considered as public

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servant which is essential ingredients of Section 353 of the IPC. Section 353 of the IPC principally states that if public servant is prevented or deter from discharging duty as such public servant by criminal force or assault it is an offence. The prosecution has failed to make out that the persons who are engaged by the DSP subsequent to the advertisement in the newspaper for toeing the vehicle obstructing the traffic on contractual basis could not said to have been the public servant. Thus, as the prosecution has failed to make out a case under Section 351 read with Section 353 of the IPC, the offence under Section 332 of the IPC obviously does not make out.

7. Insofar as the allegations of offence punishable under Section 504 of the IPC is concerned, insight of FIR indicates that no abusive language is stated therein. Further, there is no averments made in the FIR which would indicate that the filthy language is said to have been spoken during the scuffle which were made to provoke a man to cause breach of the peace or to commit any other offence. What is necessary to prove offence under Section 504 of the IPC is that the abusive word to be accompanied with an intention to cause prejudice to the peace or knowledge that a breach of peace is likely to be caused thereby. Mere utterance of the filthy language or abusive language words by itself does not constitute an offence under Section 504 of the IPC. A plain reading of the FIR since does not disclose the essential ingredients of the offence punishable under Section 504 of the IPC i.e. intention to assault and that insult provoke any person to react, no offence even under Section 504 of the IPC is made out prima facie.

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8. In State of Haryana & Ors. vs. Ch.Bhajan Lal & Ors. [1992 SCC Supl. (1) 335], the Apex Court has considered the scope of High Courts' power under Section 482 of the Code of Criminal Procedure to quell the FIR and the Hon'ble Apex Court has identified the following case in which the FIR or complaint can be quashed.

"(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 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;

(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 Section 155(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

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

9. The parameters in the Ch.Bhajan Lal & Ors. (supra) is squarely applicable to the facts on hand and thus the petitioner has a very strong and fair case for quashment of the FIR.

10. For the foregoing reasons, the petition succeeds. FIR being CR No.I-72 of 2013 registered with the Deesa Police Station for the offences punishable under Sections 504, 332, 353, 186 and 114 of the Indian Penal Code and all other subsequent proceedings arising out thereof are quashed and set aside. Rule is made absolute.

(J. C. DOSHI,J) sompura