Hasmukhabhai Vishabhai Bharwad vs State Of Gujarat
2023 Latest Caselaw 4389 Guj

      R/SCR.A/280/2018                                   ORDER DATED: 13/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 280 of 2018

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              HASMUKHABHAI VISHABHAI BHARWAD & 3 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR DHAWAN JAISWAL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 13/06/2023

                                ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicants seek

quashment of the impugned FIR being CR-II No.2 of 2018

registered with the Dhansura Police Station, District : Arvalli,

for the offences punishable under Sections 504, 506(2) and

114 of the Indian Penal Code and Sections 3(2)(va) and

3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act.

2. The brief facts of the prosecution case are that on

27.12.2017, the complainant went to attend the after-death

ceremony of his husband's uncle along with his husband and

after completion of the ceremony, she along with her sister-

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in-law went to the house of the applicants, where the

husband of her sister-in-law was residing. The matrimonial

dispute regarding her sister-in-law was going on and she is

residing with the complainant i.e. her paternal home since

long. When she went to the house of the applicants, there

were exchange of words and therefore, the complainant called

police on Mahila Helpline. The elders of the society came in

the picture and thereby tried to resolve the matrimonial

issues. When the applicants' side did not fulfill the promises

given in the said meeting, the complainant lodged the

complaint after about five months later.

3. Heard learned advocates. Though served,

respondent No.2 - Complainant has preferred not to appear

and contest this application before this Court.

4. Rule. Learned APP waives service of notice of rule

on behalf of the State. Learned advocate for the complainant

is not present though served.

5. Learned advocate Mr.P.P. Majmudar for the

applicants has submitted that the impugned complaint is filed

about five months late after the alleged incident. He has

submitted that the complainant and the applicants are the

relatives. He has submitted that there was a compromise talk

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going on at that time regarding matrimonial issues of sister-

in-law of the complainant. He has submitted that the

complainant has filed this false complaint to settle the score

and to agree for her demands in matrimonial issues. He has

submitted that looking to the entire contents of the

complaint, no offence is made out against the present

applicants. He has submitted that this application may be

allowed.

6. Learned APP has strongly opposed this application.

He has submitted that the applicants are the head-strong

persons. He has submitted that due to the incident, the

complainant has called for the help on Mahila Helpline. He

has submitted that the complainant and her sister-in-law

were alone at that place and all the applicants were there

along with their other persons. He has submitted that this

Court may not exercise the powers under Section 482 of the

Code of Criminal Procedure, 1973 in favour of the applicants

and this application may be dismissed.

7. I have heard rival submissions made by the

learned advocates for the respective parties. I have also

considered the material available on record. I have also

perused the FIR as well as the police papers available with

the learned APP. Considering the facts and circumstances of

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the case, the following factors needs to be kept in mind

while considering this application.

 The complaint is lodged after about five months later

after the alleged incident.

 The basis of the alleged incident is the matrimonial

issues between the sister-in-law of the complainant and

their in-laws.

 The settlement talk was going on qua such dispute.

 There may be exchange of words between the

complainant and the applicant/s at the private premises

i.e. house of the applicants and not in public premises

and therefore, provisions of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act do not

attract.

 There is no scuffle between the complainant and the

applicants.

 There are no injuries to the complainant.

 The complainant has love marriage in the year 2001 in

the Bharwad community and the sister-in-law of the

complainant gets married in Bharwad community and

therefore, the complainant and the applicants are the

relatives.

 The complainant went to the place of the applicants on

her own.

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 The applicants are wrongly dragged in the commission

of offence, as alleged.

 The matrimonial dispute is given criminal colour by the

complainant.

 It is a pressurise tactic adopted by the complainant by

filing the impugned complaint.

8. Considering the totality of the case, this is a fit

case to exercise the powers under Section 482 of the Code of

Criminal Procedure, 1973 in favour of the applicants keeping

in mind the observations made by the Hon'ble Apex Court in

the case of State of Haryana V/s Bhajan Lal reported in AIR

1992 SC 604, which reads as under :

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an

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exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just

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conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. At this stage, it is also relevant to refer to the

judgment of the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in

(2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which

read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. 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 Sec. 482 CrPC can be exercised:

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[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC 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. Discussion of decided cases."

10. Further, it would also be fruitful to refer to 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 :-

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(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 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 of either description for a term which may extend to two years, or with fine, or with both".

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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

(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."

11. In view of above, the impugned FIR and the

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proceedings arising from the impugned FIR needs to be

quashed and set aside.

12. For the reasons recorded above, the following order

is passed.

12.1             This application is allowed.



12.2             The      impugned   FIR      being    CR-II      No.2       of    2018

registered with the Dhansura Police Station, District : Arvalli,

is quashed and set aside.

12.3 Consequently, the subsequent proceedings, if any,

arising out of the same FIR are also hereby quashed and set

aside.

12.4 Compensation received by the complainant

pursuant to the complaint under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, if any, shall

be refunded to the State, forthwith and the State will do

needful for the same.

12.5 Rule is made absolute accordingly.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE