Gujarat High Court
Nayansinh Chhatrasinh Gohil vs State Of Gujarat on 18 August, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.MA/18506/2014 JUDGMENT DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18506 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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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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NAYANSINH CHHATRASINH GOHIL & 10 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BN LIMBACHIA(3454) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8
MR AMIT N CHAUDHARY(5599) for the Respondent(s) No. 2
MR BHARGAV PANDYA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/08/2023
ORAL JUDGMENT
1. This is an application filed under Section 482 of the
Criminal Procedure Code (for short, 'Cr.P.C.') for quashing and
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setting aside the private complaint bearing Criminal Case
No.3174 of 2014 (then Criminal Inquiry No.50 of 2011) filed on
10.6.2011 by the Respondent No.2 - complainant before the
learned Chief Judicial Magistrate, Bharuch, wherein, learned
Court, vide an order dated 30.07.2014 had issued the process
under Section 204(1)(B) of 'Cr.P.C.'.
2. Brief facts arising from the petition are as under:
2.1 Respondent No.2 - original complainant filed complaint
against the present applicants before the learned Chief Judicial
Magistrate, Bharuch for the offence punishable under Sections
323, 504, 506(2), 427, 440 read with Section 114 of the Indian
Penal Code and Section 3(1)(X) of Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
It is alleged in the complaint that on 9.2.2011, the son
of the complainant was on his way for his job around
11.30, at that point of time, petitioner No.1, namely,
Nayan Gohil, was washing his car in the front side of
the complainant's house. As due to the wash of his
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car, the pool of water, done near the house of the
complainant, the son of the complainant, namely,
Hitesh had instructed that as his mother is paralytic
and no one is in the house who can clean the said pool
of water and may cause injury due to the slipping, he
had instructed not to wash the car. Present applicant
Nos. 1 to 4, had used the abusive words with regard to
the caste of the complainant and assaulted the
complainant and the son Hitesh thereafter accused
No.1 had called the other relatives who had came with
weapon in their hand and looking to them, the
complainant and the son had hideen themselves in the
house. However, due to havoc created by all the
accused, the complainant and the son was frightened
and approached the Soneri Mahel Police Station and
gave an application being No.59 of 2011 to the Police
Inspector of that Police Station, however, no any
actions were taken. Thereafter, the representation was
made to the District Police Superintendent on
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23.3.2011. It is further alleged in the compliant that on
23.03.2011, the present applicant No.1 has filed an
FIR being I-C.R.No.57 of 2011 before the Bharuch
Police 'A' Division Police Station wherein, complainant
and his son were arrested and after releasing, they
had taken shelter in the Hotel between 24.03.2011 to
31.03.2011. Thereafter, when they returned to the
house, again threats were administered by the
applicant No.2 and applicant No.4 on 4.4.2011 at 2.35
hours and even prior to that also on 2.4.2011 and
3.4.2011, threats were issued, to point of knife on the
complainant, again written compliant was filed on
4.4.2011 to Soneri Mahel Police Station but no actions
were taken by the concerned police station. Due to
continuous harassment and the threats issued by the
accused, the petitioner's written complaint was filed
before the higher officer including the Chief Minister.
Thereafter on 15.4.2011, the damage was caused to
the Wagnor car of the complainant and the dirty water
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was thrown towards the house of the complainant. It is
further alleged that the house hold articles were
stolen, which was lying outside of the house by the
accused persons and also thrown poisonous powder in
the water tank of the complainant with regard to the
same also, compliant was lodged on 29 th May, 2011,
which was also remained unattended. With the
aforesaid allegations, the private complaint was filed
alleging that offence under Section 323, 504, 506,
427, 440, 114 of the Indian Penal Code and Section
3(1)(X) of the Atrocities Act.
3. Learned Court after recording the verification of
the complainant and his son has called for the Report
from the Dy.S.P. under Section 202 of Cr.P.C. vide an
order dated 10.6.2011.
4. Pursuant to the directions issued by learned
Magistrate, concerned Dy.S.P. recorded the statement
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of the neighbors as well as complainant and his family
members and submitted the Report that in fact, the
complainant had assaulted the present applicant No.1
i.e. Nayansinh Gohil and caused injury and fracture on
his both hands and for that FIR was lodged before the
Bharuch city 'A' Division Police Station being C.R.No.I-
57 of 2011 for the offence punishable under Sections
323, 325, 506(2), 114 of Indian Penal Code and
Section 135 of the Bombay Police Act on 23.03.2011.
That due to the injury, the applicant No.1 had taken
the treatment as an indoor patient from 23.3.2011 to
2.4.2011 and the Certificate was also collected by the
Dy.S.P. while inquiring the case pursuant to the order
passed by learned Magistrate. It is further revealed in
the Report that that statement of the persons who are
residing in the same society, which are recorded,
namely, Vithal Jivrajbhai and Rekhaben widow of
Vrajlal Vasava, Maniben widow of Mansukh Govind
who stated that there was some altercation between
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the complainant and the applicant Nos.9 to 11 with
regard to pool of water near house of complainant and
due to the same, the applicant No.1 was assaulted by
the complainant and his son on 23.3.2011 with
Dhariya and stick and to save the skin, private
compliant filed under Atrocities Act and IPC against
the present applicants. It is further revealed during the
inquiry that complainant and his son both are of
quarrelsome nature and having problems with all
neighbors. That due to the FIR, which was lodged by
the present applicants on 23.03.2011, they hidden
themselves in the Hotel Sunrise for the period
between 24.3.2011 to 31.03.2011. However, as the
complainant wants to pressurize the present applicant,
the Report dated 1.8.2011 filed by the Dy.S.P. (SC &
ST) Cell , Bhrauch is part of compilation at page No.34.
Learned Court considering the Report and the
statements recorded by the Dy.S.P. had issued
summons under Section 204 (1)(B) on the ground that
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as no actions were taken by the police officer on the
applications of the complainant, to prove the case and
to produce the evidence in defence, the order issuing
of process was passed on 30.7.2014, which is the
subject matter of challenge before this Court.
5. Heard learned advocate Mr.B.N.Limbachia, for the
applicants, Mr.Amit Chaudhary, learned advocate for
Respondent No.2 - original complainant and
Mr.Bhargav Pandya, learned APP for the Respondent-
State.
6. Mr.Limbachia, learned advocate submitted that
learned Judge ignored the aspect that FIR was lodged
by the present applicants before Bharuch City 'A'
Division Police Station as the applicant No.1 was
mercilessly beaten by the complainant and his son,
namely, Hitesh and caused injury with Dhariya and
sticks which resulted into fracture on both hands and
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due to the same, the applicant No.1 was operated
from 23.3.2011 to 2.4.2011 and thereafter also
complications were arisen therefore he was re-
operated in the year 2012. Learned advocate,
Mr.Limbachia, further submitted that the FIR was
ultimately culminated into the charge-sheet and at
present, trial of criminal case is at crucial stage where
the complainant is remaining absent and against him,
arrest warrant was issued on 14.8.2023. Mr.Limbachia,
learned advocate further pointed out that observations
made by the learned Court while issuing the process
under Section 204 of Cr.P.C. ignored the merits or
demerits of the case by the learned Judge and only
with a view to give chance to prove the case to both
sides, process was issued without observing the single
line on merits of the case.
7. Mr.Limbachia, learned advocate further submitted
that Dy.S.P.(SC and ST) Cell, Bhrauch also submitted a
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Report after recording the statement of the
independent witnesses which speaks voluminous
things of the complainant. However, ignoring the
same, impugned order was passed issuing process. In
fact, before issuing process, learned Judge ought to
have ascertained the fact that whether the
complainant had valid ground calling accused person
of issuing process or not. However, on the baseless
complaint, process was issued by the learned Judge
without observing any facts of the case. Learned
advocate, Mr.Limbachia, further submits that applicant
No.2, 4, 6, 11 are lady accused and applicant
Nos.3,5,and 6 are sons and daughter suffering from
various ailments and wrongly roped into the offence so
as to cause mental and physical harassment to the old
aged person. Mr.Limbachia, learned advocate further
submitted that all the applicants are law abiding
citizens. Applicant Nos.2 and 3 are daughters of
applicant No.1 who is a retired principal in the high
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school. Applicant Nos.5 and 6 are also retired teachers
and studying far away from the house of the applicant
NO.1.
8. Mr.Limbachia, learned advocate further submitted
that all the accused are law abiding persons and with
a view to pressurize, this false complaint came to be
filed.
9. Mr.Limbachia, learned advocate further relied on
the medical certificate at page No.67 wherein injuries
are mentioned which were caused by the complainant
and his son with Dhariya and the stick and submitted
that as a counter blast private compliant filed against
11 family members of applicant No.1 who are not
residing with him and therefore, he prays to quash the
compliant and process issued by learned Magistrate.
10. On the other hand, Mr.Chaudhary, learned
advocate for Respondent No.2- original complainant as
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also Mr.Pandya, learned APP had reiterated the
submissions and contentions made in affidavit in-reply
filed by the complainant and submitted that
complainant is a retired officer in the Railway
Department and his son, namely, Hitesh, working as
Development officer in the LIC. It is further submitted
that they are residing in Bharuch since last 14 years
and applicant No.1 and their relatives are belonging to
Darbar community and they were used to harass and
create problems to see that complainant and his
family members may shift at other place. It is further
submitted by Mr.Chaudhary, that despite various
complaints were filed before the Soneri Mahel Police
Station, applicants are influential people and were
close relatives of the local political party of the
Bharuch district, there no any actions were taken.
11. It is further submitted by Mr.Chaudhary that on
the day of the incident, accused rushed to the house
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of the complainant and had caused damage to the car
lying outside of the house. Learned advocate,
Mr.Chaudhary, while assailing the order of the learned
Magistrate issuing process under Section 204(1)(B)
submitted that after considering the evidence, learned
Court had issued process which is just and proper and
therefore, he prayed to dismiss the petition and to
vacate the interim relief.
12. Considering the submissions made by the
respective parties, this Court finds that while issuing
process under Section 204(1)(B), the learned Court
had observed that as the police officers had not acted
on the various complaints lodged by the complainant,
one chance should be given to prove the case to the
complainant and the accused and further observed
that at the time of issuance of process, merits and de-
merits are not to be looked into and only prima-facie
case is to be seen by the learned Court and this Court
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further observes that considering the compliant as
well as documentary evidence, prima-facie, case for
issuance of process is made out and therefore, the
process was issued. It is undisputed fact that an FIR
was lodged by the applicant on 23.03.2011 for the
offene under Sections 325, 506(2), 114, 323 of Indian
Penal Code and 135 of Bombay Police Act being I-
C.R.No.57 of 2011 registered before Bharuch City 'A'
Division Police Station, which was subsequently
culminated into charge-sheet and trial is at stage of
evidence. Considering the medical certificate, which
was produced by the applicant, it transpired that
complainant and his son caused injury to the applicant
No.1 and also fractured his both hands for which, he
was operated and re-operated. The Report of the
Dy.S.P. (SC and ST) Cell revealed that the statement of
the independent witnesses denying the facts
mentioned in the compliant lodged by the complainant
and also revealed that complainant and his son had
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quarrelsome nature and taking the advantage of their
caste by filing forged complaint against the applicants
who are 11 in numbers address mentioned in cause
title shows that except applicant Nos.1 and 2 all are
residing at different places. Though bare perusal of
the complaint shows that allegations is that applicants
were having the deadly weapon in their own hand and
try to assault to the complainant and his son.
However, it is further contended in the compliant that
as the complainant and his son was in a frightened
condition, they hid themselves in the house, which
shows that though allegations made in the complaint
is with regard to the alleged offence under Sections
323, 504, 506(2), 427, 440 read with Section 114 of
the Indian Penal Code, but not a single scratch was
received by the complainant, which also shows that
FIR is nothing but an afterthought with a view to
wrecking vengeance against the applicants. It appears
that only to pressurize the applicants to settle the case
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and to withdraw the FIR, this false complainant is filed,
therefore, this Court finds that case is fully covered in the
categroies (a) and (e) mentioned by the Apex Court in the case
of State of Haryana and others V/s. Ch. Bhajan Lal and
others reported in (1992) Supp. (1) SCC 335..
13. Resultnatly, application is allowed by quashing and setting
aside the private complaint bearing Criminal Case No.3174 of
2014 (then Criminal Inquiry No.50 of 2011) filed on 10.6.2011 by
the Respondent No.2 - complainant before the learned Chief
Judicial Magistrate, Bharuch, wherein, learned Court, vide an
order dated 30.07.2014 had issued the process under Section
204(1)(B) of 'Cr.P.C.'. Rule made absolute.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
