Pratikbhai Bansibhai Barot vs State Of Gujarat
2023 Latest Caselaw 5312 Guj

     R/CR.MA/3561/2014                             JUDGMENT DATED: 07/07/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 3561 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE M. R. MENGDEY                        Sd/-

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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 ?                          NO

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 ?

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                    PRATIKBHAI BANSIBHAI BAROT & 2 other(s)
                                   Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1,2,3
MS KRINA CALLA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

                               Date : 07/07/2023

                               ORAL JUDGMENT

1. The present application has been filed by the applicants - original accused under Section 482 of the Code of Criminal Procedure seeking quashing and setting aside the impugned FIR being II.C.R.No.258 of 2013 registered with Vijapur Police

R/CR.MA/3561/2014 JUDGMENT DATED: 07/07/2023

Station, Mehsana for the offence punishable under Sections 504, 506(2) and 114 of the Indian Penal Code (herein after referred to as the "IPC").

2. Learned advocate for the applicants has submitted that prior to the present FIR being lodged by respondent no.2 against the present applicants, an FIR being II.C.R.No.257 of 2013 registered with Vijapur Police Station, Mehsana was registered by the applicant no.3 herein against the husband of respondent no.2. The FIR against the husband of respondent no.2 was registered on 04.09.2013 at 6.15 p.m., whereas the FIR, in present case, was lodged by respondent no.2 on 04.09.2013 at 9.40 p.m. Thus, the present FIR is nothing, but counterblast of the FIR lodged against her husband.

2.1 Learned advocate for the applicants has submitted that in the present FIR, the offences punishable under Sections 504, 506(2) and 114 of the IPC are alleged against the applicant, however, ingredients of none of the offences are made out against the present applicants upon bare perusal of the entire FIR.

2.2 Learned advocate for the applicants has submitted that on the next day i.e. on 05.09.2013 also, another FIR was registered against the husband of respondent no.2. The respondent no.2 is a Municipal Councilor of the Vijapur Municipality and was a member of Town Planning Committee of the said municipality. The husband of respondent no.2 was misusing her position as a Councilor and would interfere with the work of municipality and would harass and threaten the staff and office bearers of the

R/CR.MA/3561/2014 JUDGMENT DATED: 07/07/2023

municipality under the guise of position of his wife. The husband of respondent no.2 is a head strong person. Therefore, several FIRs came to be lodged against him and as a counter blast to those FIRs, the present FIR has been lodged by respondent no.2 against the present applicants. Therefore, the present FIR is nothing, but an afterthought and an abuse of process of law. He, therefore, submitted to allow the present application by quashing and setting aside the present FIR.

3. Learned APP has opposed the application by submitting that as per the FIR, the respondent no.2 had gone to the office of municipality for gathering some information, which was required for the purpose of meeting of the Town Planning Committee, which was scheduled to take place on 16.09.2013. At that time, the present applicants started behaving with the respondent no.2 in a rude manner and at that point of time, her husband reached to the spot upon which the applicants herein got agitated and threatened him of his life. Therefore, ingredients of offences alleged in the FIR are clearly made out from the bare perusal of the FIR in question. She, therefore, submitted to dismiss the present application.

4. Despite service of notice, none present on behalf of respondent no.2.

5. Heard learned advocates for the parties and perused the material on record. From the record, it appears that the respondent no.2 was an elected councilor of the Vijapur Municipality and was also a member of Town Planning Committee of the said municipality. The husband of respondent

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no.2, who was neither an elected member of the municipality nor was an employee of the said municipality used to visit the Office of the Municipality on one pretext or the other and used to threaten the office bearers and employees of the municipality. An FIR for one such incident was lodged by the present applicant no.3 against the husband of respondent no.2 on 04.09.2013 being II.C.R.No.257 of 2013 registered with Vijapur Police Station, Mehsana. The said offence was registered against the husband of respondent no.2 on 04.09.2013 at 18.15 hours, whereas impugned FIR in present case came to be lodged on 04.09.2013 at 21.40 hours. Thus, present FIR appears to be a counter blast to the FIR registered against the husband of respondent no.2. In the impugned FIR, the offences alleged against the present applicants are punishable under Sections 504 & 506(2) of the Indian Penal Code. Section 504 of the IPC reads as under:-

"504. Intentional insult with intent to provoke breach of the peace: -- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

6. Necessary ingredients for making out an offence punishable under Section 504 of the IPC are (i) intentional insult

(ii) provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace.

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Upon perusal of the entire FIR, in the present case, it is not coming forth that the applicants herein had intentionally insulted the husband of the respondent no.2 or had provoked him intentionally or knowingly that such provocation will cause him to break public peace or to commit any other offence. The Hon'ble Apex Court in case of Vikram Johar Vs. State of Uttar Pradesh & Anr [ (2019) 14 SCC 207 ] has held as under:

"22. In paragraph No.13 of the judgment, this Court has noticed the ingredients of Section 504, which are to the following effect:-

"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."

R/CR.MA/3561/2014 JUDGMENT DATED: 07/07/2023

23. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:-

"11. Xxxxxxxxxxxxx A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the

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case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."

In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506 of the IPC."

7. It is also required to be noted at this stage that the offence punishable under Section 504 of the Indian Penal Code is a non- cognizable offence.

8. Considering the aforesaid aspects, the ingredients for punishable under Section 504 of the IPC are not made out against the present applicants.

9. The other offence alleged against the present applicants in the FIR is an offence punishable under Section 506(2) of the IPC. The only averment, which may be relevant for the said offence in the FIR is to the effect that the accused persons had threatened her husband of his life. Section 506 of the IPC reads as under:-

" 506.Punishment for criminal intimidation: --Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which

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may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.: --and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

10. This Court in case of Jivanbhai Devjibhai Baogayata Vs. Mohanbhai Purshottam Mokariya Brahmin passed in Special Criminal application vide order dated 10.04.2015 passed in Special Criminal Application (Quashing) No.3927 of 2013 in Paragraph No.17 has observed as under:-

"17. A bare perusal of Section 506 of the I.P.C. makes it clear that a part of it relates to a criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. Let me assume for the moment, what has been alleged in the complaint is true, even then, mere threats given by the accused, not with an intention to cause alarm to the complainant, would not constitute an offence of criminal intimidation."

11. Upon perusal of the FIR as it is, there is nothing in the FIR to indicate that any alarm was caused to the husband of the respondent no.2 due to the alleged threat given to her husband

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by the present applicants. Thus, offence punishable under Section 506 of the IPC is also not made out against the present applicants and the offence punishable under Section 506(2) of the IPC appears to have been invoked against the present applicants only with a view to make the case of cognizable offeence against the present applicants.

12. Under the circumstances, the present application is allowed. The impugned FIR being II.C.R.No.258 of 2013 registered with Vijapur Police Station, Mehsana for the offence punishable under Sections 504, 506(2) and 114 of the Indian Penal Code as well as all other consequential proceedings arising out of the aforesaid F.I.R are hereby quashed and set aside.

Rule is made absolute to the aforesaid extent.

Direct service permitted.

Sd/-

(M. R. MENGDEY,J) GIRISH /20