Gujarat High Court

Sukhabhai Khatabhai Chauhan vs The State Of Gujarat on 18 August, 2023

Bench: Sandeep N. Bhatt

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL MISC.APPLICATION NO. 3019 of 2021

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                          SUKHABHAI KHATABHAI CHAUHAN
                                     Versus
                              THE STATE OF GUJARAT
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Appearance:
MR RAJESH O GIDIYA(5222) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                        Date : 18/08/2023

                                         ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicant seeks

quashment of the impugned FIR being C.R.

No.11198020210028 of 2021 registered with the Ghogha Police

Station, District : Bhavnagar for the offences punishable

under Sections 504, 506 and 506(2) 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. It is reported that charge-sheet is filed by the

Investigating Officer before the concerned trial Court and the

trial is commenced.

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3. Learned advocate for the applicant does not press

this application, qua the offences under the Indian Penal

Code. Therefore, this application is rejected qua the offences

under the Indian Penal Code. Therefore, the trial shall be

proceeded further qua the offences under the Indian Penal

Code.

4. In view of above, this application is heard qua the

offences under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act only.

5. Heard learned advocates. Rule. Learned APP

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

State. It is noted that though notice has been served to the

complainant, the complainant has chosen not to appear and

contest this application before this Court.

6. Learned advocate Mr.Gidiya for the applicant

submits that prima facie, no case is made out against the

applicant, hence, the entire allegations regarding provisions of

the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act are with the a view to implicate the present

applicant falsely. He has submitted that there were exchange

of heated words between the applicant and the complainant,

but it does not resulted into an offence under the Scheduled

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Castes and Scheduled Tribes (Prevention of Atrocities) Act as

there was no uttering of any words towards the caste of the

complainant. He has further submitted that it is a

requirement under the law that the caste of the complainant

is required to be mentioned in the FIR. He has submitted

that no ingredients are satisfied which attract the offence

under the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act. He has submitted that there is inordinate

and unexplained delay caused in filing the impugned FIR as

the alleged incident has taken place on 25.12.2020 and the

impugned FIR is lodged on 19.01.2021. He has submitted

that there are catena of decisions of the Hon'ble Apex Court

which do not permit an abuse of process of law by the

complainant. He has submitted that this application may be

allowed.

7. Learned APP for the State has vehemently

opposed this application. He has submitted that there is

prima facie offence against the applicant and therefore, this

application may be dismissed. He has submitted that this

Court may not exercise the powers under Section 482 of the

Code of Criminal Procedure, 1973. He has submitted that

this application may be rejected.

8. I have heard rival submissions made by the

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learned advocates for the respective parties. I have perused

the documents available on record. Considering the record,

the following points are emerged for consideration of this

Court.

➢ The complaint is lodged delayed i.e. after about 25 days

late, which is not satisfactorily explained by the complainant.

➢ There is no utterance of words concerning the caste of

the complainant.

➢ This application is not pressed qua the offences under

the Indian Penal Code and therefore, the trial qua the

Indian Penal Code shall be proceeded.

➢ The ingredients of the offences qua the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act are

not found.

➢ Any independent witness does not support the case of

the prosecution.

➢ Bare reading of the FIR does not invoke the provisions

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act.

➢ The impugned complaint is completely misuse of process

of law qua the offences under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act is concerned.

9. At this stage, it would also be fruitful to refer to

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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 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

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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 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

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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 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

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(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."

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

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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

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

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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 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

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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

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

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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.

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."

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11. Further, 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 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

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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 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.

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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. Further, it is also relevant to refer to the recent

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

Chandra Vaishya versus The State of Uttar Pradesh reported in 2023 LiveLaw (SC) 469, more particularly Paras : 17 to

25 thereof, which read as under :

"17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge-sheet dated 21 st January, 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three witnesses are none other than the complainant, his wife

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and their son. Neither the first F.I.R. nor the charge- sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any, made by the appellant were not "in any place within public view", the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present.

18. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to bring it within the ambit of section 3(1)(x) of the SC/ST Act. We have noted from the first F.I.R. as well as the charge-sheet that the same makes no reference to the utterances of the appellant during the 8course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool

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(murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Since section 18 of the SC/ST Act bars invocation of the court's jurisdiction under section 438, Cr.PC and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the F.I.R. (which is not required to be an encyclopedia of all facts and events), but at least in the charge-sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge sheet makes out a case of an offence under the SC/ST Act having been committed for 9forming a proper opinion in the conspectus of the situation before it, prior to taking cognisance of the offence. Even for the limited test that has to be applied in a case of the present nature, the charge-sheet dated 21 st January, 2016 does not make out any case of an offence having been committed by the appellant under section 3(1)(x) warranting him to stand a trial.

19. Paragraphs 15 and 16 of the decision in

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Hitesh Verma (supra) cited by Ms. Shukla can be pressed in aid to support the view that we have taken above.

20. The second question that would engage our attention is, whether the criminal proceedings against the appellant should be allowed to be taken further in view of the appellant facing accusation of offences punishable under sections 323 and 504, IPC.

21. Section 323, IPC prescribes punishment for voluntarily causing hurt. Hurt is defined in section 319, IPC as causing bodily pain, disease or infirmity to any person. The allegation in the first F.I.R. is that the appellant had beaten up the complainant for which he sustained multiple injuries. Although the complainant alleged that such incident was witnessed by many persons and that he sustained injuries on his hand, the charge-sheet does neither refer to any eye-witness other than the complainant's wife and son nor to any medical report. The nature of hurt suffered by the complainant in the process is neither reflected from the first F.I.R. nor the charge-sheet. On the contrary, the appellant had the injuries suffered by him treated immediately 10after the incident. In the counter-affidavit filed by the first respondent (State) in the present proceeding, there is no material worthy of consideration in this behalf except a bald statement that the complainant sustained multiple injuries "in his hand and other body parts". If indeed the complainant's version were to be believed, the I.O.

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ought to have asked for a medical report to support the same. Completion of investigation within a day in a given case could be appreciated but in the present case it has resulted in more disservice than service to the cause of justice. The situation becomes all the more glaring when in course of this proceeding the parties including the first respondent are unable to apprise us the outcome of the second F.I.R. In any event, we do not find any ring of truth in the prosecution case to allow the proceedings to continue vis-à-vis section 323,-vis section 323, IPC.

22. What remains is section 504, IPC. In Fiona Shrikhande and Anr. vs. State of Maharashtra 7 , this Court had the occasion to hold that:

"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult,

(b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence.

The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public

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peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."

23. Based on the facts and circumstances of the case, we have little hesitation in holding that even though the appellant might have abused the complainant but such abuse by itself and without anything more does not warrant subjecting the appellant to face a trial, particularly in the clear absence of the ingredient of intentional insult of such a degree that it could provoke a person to break public peace or commit any other offence.

24. We record that the High Court misdirected itself in failing to appreciate the challenge to the criminal proceedings including the charge-sheet in the proper perspective and occasioned a grave failure of justice in rejecting such challenge.

25. For the reasons aforesaid, we unhesitatingly hold that it would be an abuse of the process of law to allow continuation of Criminal Case No.376 of 2016. While setting aside the impugned judgment and order

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of the High Court, we also quash Criminal Case No.376 of 2016."

13. In view of the above facts and circumstances as

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

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

applicant, qua the offences under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act. This Court

finds that this is a gross case of abuse of process of law and