Gujarat High Court

Virambhai Punjabhai Mer ... vs State Of Gujarat on 4 July, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/7349/2019                            JUDGMENT DATED: 04/07/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 7349 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                              SD/-
          ==========================================================
1      Whether Reporters of Local Papers may be allowed               YES
       to see the judgment ?

2      To be referred to the Reporter or not ?                        YES

3      Whether their Lordships wish to see the fair copy               NO
       of the judgment ?

4      Whether this case involves a substantial question               NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                   VIRAMBHAI PUNJABHAI MER (MODHVADIYA)
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
JAIMIN A GANDHI(8065) for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 04/07/2023

                             ORAL JUDGMENT

1. By this application under Section 482 of the Code of

Criminal Procedure, the applicant - original accused prays for

the following main reliefs:-

"(b) To quash and set aside the impugned FIR (Annexure A) being II-C.R.No. 34/2019 registered

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

with Udyognagar Police Station, District Porbandar;

(c) Pending admission, hearing and final disposal of this application, to stay further proceedings of impugned FIR (Annexure A) being II-C.R.No.

34/2019 registered with Udyognagar Police Station, District Porbandar."

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

complainant is doing electric work and runs his livelihood. As

per the instructions of Mr. Chhaganbhai, who is a sub-

contractor at Sardar Patel Nevalbase, Bokhira, the complainant

started electric work at the Nevalbase. That on 31.03.2019, at

about 9:30 a.m, when the complainant gone for taking electric

goods which stored in the pump house at a camp, he went

behind the pump house for urinating and upon seeing

Virambhai (applicant herein), who was sitting in the office, the

complainant went back without urinating, but at that time, one

person came there and asked the complainant to meet

Virambhai in the office. Therefore, the complainant went to the

office of Virambhai, at that time, Virambhai slapped the

complainant and uttered filthy words relating to his caste.

Hence, FIR came to be filed by the complainant against the

applicant for the offence under Sections 323 and 504 of Indian

Penal Code, 1860 and Sections 3(1)(r)(s) and 3(2)(5)(a) of the

Atrocities Act.

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

3. Heard Ms. Shweta Lodha for Mr. Virat Popat, learned

Counsel for the applicant, Mr. Soham Joshi, learned APP for the

respondent State and Mr. Jaimin Gandhi, learned counsel for

the complainant.

4. Ms. Shweta Lodha, learned counsel for the applicant has

submitted that the impugned FIR is nothing, but an abuse of

process of law as from the contents of the FIR, it reveals that

no offence is made out. She further submitted that no any hurt

is caused by the applicant. She has drawn my attention

towards the contents of the FIR, whereby, the complainant has

not stated that which words were uttered and the complainant

himself has introduced the accused at the time of incident that

he is coming from a particular community that means Vankar.

She has further submitted that the incident has taken place as

the complainant was urinating at the backside of the office

premises in Nevalbase and therefore, the applicant has

reprimanded the complainant, due to which, the complainant,

who is working as Sub-Contractor in the premises, has lodged

the FIR, which prima facie is filed with malafide intention and

with an ulterior motive. Even as per the say of the

complainant, the applicant has given two slaps on the

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

complainant, which cannot be constituted the provisions of

Section 323 of Indian Penal Code, 1860 as it is not coming

within the purview of Section 323 of IPC and therefore, she has

submitted that such malacious proceedings would amount to

an abuse of process of law and therefore, this Court should

exercise inherent powers under Section 482 of the Code.

5. Learned counsel for the applicant has relied upon the

judgments of the Hon'ble Apex Court in cases of (i) State of

Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604 (ii)

Hitesh Verma Vs. State of Uttarakhand & Anr. reported in

(2020) 10 SCC 710 and (iii) Narad Patel Vs. State of

Chhatisgarh reported in (2019) 6 SCC 268.

6. She also relied on the recent judgments of the Hon'ble

Apex Court rendered in cases of Ramesh Chandra Vaishya

Vs. The State of Uttar Pradesh & Anr., reported in 2023

Live Law (SC) 469 and Sri Gulam Mustafa Vs. State of

Karnataka & Anr. reported in 2023 Live Law (SC) 421 and

has submitted that the alleged offence committed in the office

premises cannot be considered as committed in a public view.

She has also submitted that no ingredients of any of the

sections of Atrocities Act are satisfied. Therefore, the

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

allegations made in the FIR seem to be patently absurd and

inherently improbable, on the basis of which no prudent person

can ever rich a just conclusion that there is sufficient ground to

proceed against the accused and on that count also, the FIR

deserves to be quashed.

7. Per contra, Mr. Jaimin Gandhi, learned counsel for the

complainant strongly opposed the submissions made at the

bar and has submitted that the said incident occurred in

presence of other four persons including one lady and in

presence of said lady, the accused has slapped the

complainant and uttered humiliating words relating to his

caste. He further submitted that since the incident has

occurred in presence of more than four persons, it can be

considered that it is occurred in a public view and therefore,

requirement of provisions of the Atrocities Act and applicability

thereof are satisfied. He further submitted that even giving

slaps amount to getting hurts to a person and considering the

same, prima facie offence is made out under the provisions of

Indian Penal Code, 1860 as well as Atrocities Act. It is

submitted that the Court cannot examine genuineness of the

incident while exercising power under Section 482 of the Code

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

very sparingly and therefore, present application does not

deserve any consideration.

8. Mr. Soham Joshi, learned APP for the State adopting the

submissions made by the complainant submitted that when

the applicant has called the complainant in his office and

thereafter the incident has taken place and this aspect is

required to be considered while deciding the application under

Section 482 of the Code, otherwise, no prima facie case is

made out against the applicant and therefore, no interference

of this Court is called for.

9. Considering the rival submissions made at the bar as well

as the contents of the FIR, it transpires that the complainant

who was working as a sub-contractor, went behind the office

premises of the applicant and has urinated there, due to

which, the applicant has reprimanded the complainant. As a

result, the alleged incident has taken place, whereby, as per

the say of the complainant, he himself has introduced about

his caste and thereafter, as alleged, the applicant has abused

him about his case. Moreover, it is the say of the complainant

that two slaps were given in presence of four persons and

therefore, he has lodged the FIR under Sections 323 and 504 of

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

Indian Penal Code, 1860 and Sections 3(1)(r)(s) and 3(2)(5)(a)

of the Atrocities Act. The averments made in the complaint

itself create suspicion about the occurrence as alleged in the

FIR. Moreover, assuming that such incident has occurred, then

also, firstly the complainant has behaved in such a manner in

public, more particularly in Nevalbase by urinating behind the

office premises and therefore, the applicant has reprimanded

and thereafter, he has introduced himself by saying that he is

coming from Vankar community that itself shows that the

applicant is not aggressor or he had no any intention to

commit any offence as alleged in the FIR. Further, considering

the judgments of the Hon'ble Apex Court relied upon by

learned counsel for the applicant, more particularly a decision

rendered in the case of Hitesh Verma (supra) relating to

public view, the incident cannot be said to be happened in a

public view. Apart from this, there is absence of necessary

ingredients like describing caste of the present complainant in

the complaint and no specific averments relating to use of

specific words by the applicant against the complainant. Giving

of slaps does not attract the provisions of Section 323 of Indian

Penal Code, 1860 in absence of any injury, more particularly

when the complainant has not taken any medical treatment

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

pursuant to such injury, which cannot fall under the definition

of 'hurt' as prescribed under Section 323 of Indian Penal Code,

1860. For ready reference, Section 323 of Indian Penal Code,

1860 is reproduced hereinbelow:

323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

Sections 3(1)(r)(s) and 3(2)(5)(a) of the Atrocities Act are

reproduced hereinbelow:-

"Section 3(1)(r) :- intentionally insults or intimidates with intent to humiliate a member of Scheduled Caste or a Scheduled Tribe in any place within public view:

Section 3(1)(s) :- abuses any member of a Scheduled Caste or a Scheduled Tribes by caste name in any place within public view:

Section 3(2)(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 Tribes or such property belongs to such member shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine;"

10. It is also relevant to refer the following judgments cited at bar

by the learned counsel for the applicant :-

(a) In Narad Patel Vs. State of Chhatisgarh reported in

(2019) 6 SCC 268, the Hon'ble Apex Court held as under:-

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

8. It has been found that the appellant was not guilty of the offence under Section 506 IPC and the case presented by the prosecution in that behalf was completely rejected. According to the record, following certain acts committed by the appellant a Panchayat was held in which some abuses were hurled by the appellant. Going by the version of the complainant Deshiram himself, the expressions used by the appellant during the course of vertical altercation, did not refer to the caste or tribe that the complainant belonged though such assertion finds place in the testimony of the other witnesses.

9. Thus, the fact that the appellant abused the complainant Deshiram is quite clear and as such his conviction and sentence recorded under Section 294 IPC was fully justified. However, going by the version of the complainant Deshiram according to which there was no reference to the caste or tribe of the complainant, there is a doubt as regards charge under Section 3(1)(x) of the Act.

10. In the circumstances, while affirming the conviction and sentence of the appellant under Section 294 IPC, we grant him benefit of doubt and acquit him of the charge under Section 3(1)(x) of the Act."

(b) In Ramesh Chandra Vaishya Vs. The State of Uttar

Pradesh & Anr., reported in 2023 Live Law (SC) 469, the

Hon'ble Apex Court held as under:-

"16. The first F.I.R., registered at the instance of the complainant, is silent about the place of occurrence and who, being a member of the public, was present when the appellant is alleged to have hurled caste related abuses at the complainant. However, on a reading of the second F.I.R. registered at the behest of the appellant, it appears that the incident took place at the house of the appellant.

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 21st 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 and their son.

Neither the first F.I.R. nor the charge-sheet refers to the

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

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 course 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 (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 encyclopaedia 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 forming 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 21st 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.

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

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 after 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. 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, IPC.

22. What remains is section 504, IPC. In Fiona Shrikhande and Anr. vs. State of Maharashtra, 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

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

provocation to any other person and such provocation will cause to break the public 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."

reported in (2020) 10 SCC 710, the Hon'ble Apex Court held 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".

13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment.

Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.

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 & Ors. v. State through Standing Counsel & Ors.5. 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 5 (2008) 8 SCC 435 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 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, 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

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.

16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

17. In another judgment reported as Khuman Singh v. State of Madhya Pradesh6, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant- accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.

19. This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr. 7 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 v. State of Maharashtra & Ors.8 reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked.

The Court held as under:

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

"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 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 CrPC."

20. Later, while examining the constitutionality of the provisions of the Amending Act (Central Act No. 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India & Ors.9 held that proceedings can be quashed under Section 482 of the Code. It was held as under:

"12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised."

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.

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

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

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."

(d) In Sri Gulam Mustafa Vs. State of Karnataka & Anr.

reported in 2023 Live Law (SC) 421, the Hon'ble Apex Court held

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 extrajudicial 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 now 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 dutybound to be vigilant before invoking any provision of a very stringent statute, 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."

11. Considering the totality of the facts, I am of the opinion

that the FIR is maliciously instituted with an ulterior motive to

R/CR.MA/7349/2019 JUDGMENT DATED: 04/07/2023

give colour of criminality to essentially civil dispute and the

averments made in the FIR prima facie do not inspire

confidence with respect to the alleged incident and no

ingredient of the alleged offence is satisfied. The result of

foregoing discussions is that the applicant has made out a case

for this Court to exercise jurisdiction under Section 482 of the

Code and therefore, in my opinion, to prevent the abuse of

process of Court and law and to secure the ends of justice, this

is a fit case to exercise power under Section 482 of the Code to