Gujarat High Court
Fakirsha @ Faku Erachsha Variava vs State Of Gujarat on 7 July, 2023
Bench: M. K. Thakker
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17869 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 NO
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 YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FAKIRSHA @ FAKU ERACHSHA VARIAVA & 1 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1,2
MR. D. P. KINARIWALA(410) for the Respondent(s) No. 2
MS M D MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/07/2023
ORAL JUDGMENT
1.This is an application filed by the
applicants, who are husband and wife-accused
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
Nos.1 and 2 praying to exercise the inherent
jurisdiction under Section 482 of the Code of
Criminal Procedure and to quash the impugned
FIR being II-C.R.No.48 of 2014 registered
with Valiya Police Station, District Bharuch.
It is further prayed to quash and set aside
the charge-sheet filed before the Competent
Court on 12.07.2016 being Criminal Case
No.533 of 2016.
2.Brief facts in a capsulized form are as
follow:
2.1. The FIR was filed by the complainant,
namely, Urmilaben Harisingbhai Rupsingbhai
Vasava alleging against the present
applicants that on 19.10.2014 when the
present applicants arrived near the
residence of first informant on motorcycle
and shouted by slowing sown the motorcycle
as to why the first informant was not
coming for agricultural work in their
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
field. It is further alleged in the FIR
that while inquiring that the present
applicants called the first informant
"Bhilada" and thereafter the applicants
went to village Mahuza. Again, while
returning at 12 O'clock in the noon,
present applicants stopped their
motorcycle near the residence of the first
informant and asked that why they are not
coming for agricultural work.
2.2. It is mentioned in the FIR that, at that
point of time, first informant and her
sister-in-law were mending on the floor,
her brother-in-law and the kids were also
present there at that time. Again, the
applicants had called them as "Dubla" and
"Bhilada". It is alleged that thereafter
the applicants had administered threat on
the first informant and conveyed that the
brother of the applicant No.1 is an
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advocate and they would see that the first
informant is put behind the bar. By
narrating the incident in the FIR, it is
alleged that the present applicants had
verbally abused the first informant with
regard to their caste and thereby they had
committed the offence punishable under
Sections 504, 506(2) and 114 of the Indian
Penal Code and Sections 3(1)(x) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
('the SC & ST Act' hereinafter).
2.3. During the pendency of the petition, the
charge-sheet was filed therefore, draft
amendment was filed, which was allowed and
the charge-sheet papers were permitted to
place on record.
3.Learned advocate, Mr.Adil Mirza appearing for
the complainant submitted that the impugned
FIR is registered with a view to harass the
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
applicants and as a counterblast of various
FIRs which have been registered by the
applicant No.1 against the husband of the
respondent No.2-original complainant. Learned
advocate, Mr.Adil Mirza further submitted
that there is a long drawn civil dispute
regarding agricultural land owned by the
applicant No.1 and his brothers with their
sisters, who fraudulently sold the
agricultural land to one Hemaben Bhogilal
Vasava during the pendency of the civil
litigation i.e. Regular Civil Suit No.21 of
2009.
3.1. It is further argued that civil suit,
which is filed by the sister against the
applicant No.1 and other co-owners, the
status quo was granted by the learned
Civil Court. Despite the order of the
status quo was in operation, the purchaser
of property had tried to forcibly enter
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
into the disputed land and had committed
offence of trespass therefore, two written
complaints were given to the concerned
police station on 03.06.2014 and
06.06.2014. It is further submitted that
pursuant to the complaint, the FIR being
I-C.R.No.45 of 2014 was registered on
09.06.2014 where the husband of the
respondent No.2-original complainant was
shown as accused No.6. Even in both the
complaints, which were filed before the
concerned police station, name of
respondent No.2 was mentioned as accused
No.6.
3.2. Learned advocate Mr.Adil Mirza has
further drawn attention of this Court to
the FIR filed on 17.09.2014 under Sections
379, 447 and 114 of the Indian Penal Code
by the applicant No.1, wherein the husband
of the respondent No.2, namely,
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Harisingbhai Rupsingbhai Vasava was shown
as accused No.2. Learned advocate Mr.Adil
Mirza has submitted that with a view to
see that the applicants are pressurized
and as a counterblast all the complaints,
an impugned FIR were filed. Learned
advocate Mr.Adil Mirza has further
submitted that the applicant No.1 and his
brother gave a written complaint to the
Police Inspector, Valiya Police Station on
20.06.2014 stating that the respondent
No.2 and her husband had threatened to
file a got up and false FIR under the
atrocities and other offences. As there is
no steps were taken by the police officer,
the applicant along with his brother had
filed the Special Criminal Application
before this Court seeking direction to the
effect that the Investigating Agency be
directed to investigate the FIR in proper
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
perspective and also sought direction to
transfer the investigation to higher
agencies.
3.3. This Court had passed an order on
17.10.2014 directing the Assistant
Commissioner of Police, Bharuch to
takeover the investigation from the Police
Inspector, Valiya Police Station and
directed to file the appropriate report on
or before 10.11.2014. The order passed by
this Court in Special Criminal Application
No.4403 of 2014 dt. 17.10.2014 is a part
of the compilation. Thereafter, as the
husband of the respondent No.2 came into
the knowledge that now the action would be
initiated against the wrong doers
therefore, the impugned FIR was filed to
pressurize and harass the applicants.
3.4. Learned advocate Mr.Adil Mirza further
submitted that looking to the charge-sheet
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
papers, names of four witnesses were
mentioned in the charge-sheet, namely,
Smt.Urmilaben Harising Rupsing Vasava-the
complainant, Harisig Rupsing Vasava-husband of
the complainant, Chandrasing Rupsing Vasava-
brother-in-law of the complainant and Tinaben
Chandrasing Rupsing Vasava-sister-in-law of
the applicants. Learned advocate Mr.Adil
Mirza further submitted that no statement
of independent person was taken therefore,
it transpires that the FIR is false and
fabricated and as a counterblast the
impugned FIR filed.
4.On the other hand, learned Additional Public
Prosecutor Ms.M.D.Mehta submitted that as the
charge-sheet is submitted to the competent
court after gathering sufficient material
against the present applicants, at this
stage, interfering with the proceedings would
be unwarranted and she therefore prayed to
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dismiss the present application.
5.Learned advocate Mr.Kinariwala appearing for
the respondent No.2-original complainant had
vehemently opposed the application by
submitting that there may be an FIR against
the husband of the respondent No.2, but where
the specific allegation with regard to
atrocities is made against the present
applicant and in the charge-sheet also
statements of witnesses were recorded,
interference, at this stage, would amount to
curtail the proceedings which is pending
before the Court of law. Learned advocate
Mr.Kinariwala further submitted that there is
a specific allegation in the FIR with regard
to abuse on the caste of the complainant
which is required to be tried by the
competent court and therefore, at this stage,
this application for quashing of the FIR is
not required to be entertained and prays to
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dismiss this application.
6.Having considered the arguments canvassed by
the learned advocates for respective parties,
it transpires from the record that there is
ongoing dispute between the parties and for
that various FIRs and applications were filed
by the applicants against the number of
accused including the husband of the
respondent No.2. On perusing the order passed
by this Court in Special Criminal Application
NO.4403 of 2014, it transpires that when this
Court has issued direction directing
Assistant Superintendent of Police, Bharuch
to takeover the charge of investigation and
proceed in accordance with law on 17.10.2014
immediately, as a counterblast this FIR was
lodged on 19.10.2014 i.e. after two days of
the order passed by this Court. Perusing the
charge-sheet papers, which are part of this
application, it transpires that in the detail
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of witnesses, two persons' name were
mentioned as panch witnesses and four
persons' name were mentioned as witnesses.
Considering the name of the witnesses, it
transpires that all are the family members of
the respondent No.2-complainant. Considering
the place mentioned in the FIR, it transpires
that the incident took place near the house
of the respondent No.2.
7.Offence alleged in the FIR under Section 3(1)
(x) of the SC & ST Act is prior to the
amendment of 2018. The provision under
Section 3(1)(x) of the SC & ST Act is
reproduced as under:
"(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."
Considering the provision, it transpires that
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offence which was committed was near the
house of the respondent No.2, where presence
of family members is there and there is no
any other witnesses other than complainant
and her family members. Neither the FIR nor
the charge-sheet papers refers the presence
of any individual member of public at the
place of occurrence.
8. This Court has also considered the law laid
down by the Apex Court in the case of Ramesh
Chandra Vaishya vs. The State of Uttar
Pradesh and Anr., reported in 2023 LiveLas
(SC) 469, wherein this Court has observed 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
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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 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
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
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
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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 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."
9.Another question that would require to be
considered is that whether criminal
proceedings against the applicant should be
allowed to be taken over in view of the
charge for the offence punishable under
Sections 504 of the Indian Penal Code
requires following ingredients:
(i) 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.
10. Law laid down by the Apex Court in the
R/CR.MA/17869/2014 JUDGMENT DATED: 07/07/2023
case of Fiona Shrikhande and Anr. vs. State
of Maharashtra, reported in 2013 (3) GLH 107
in which para 13 is observed as under:
"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 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."
11. Based on the facts and circumstances of the
case, this Court has no hesitation in holding
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that in absence of ingredients of intentional
insult of to such a degree that it could
provoke a person to break public peace or
committee any offence to continuation of
proceedings would be miscarriage of justice.
12. For the foregoing reasons, this application
is allowed. The impugned FIR being II-
C.R.No.48 of 2014 registered with Valiya
Police Station, District Bharuch is quashed
with all consequential proceedings. Rule is
made absolute accordingly.
(M. K. THAKKER,J)
M.M.MIRZA
