Darshan Amulbhai Parekh vs State Of Gujarat
2023 Latest Caselaw 4611 Guj

     R/CR.MA/266/2017                              ORDER DATED: 19/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 266 of 2017

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                         DARSHAN AMULBHAI PAREKH
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
HARSHANG H PATEL(7349) for the Applicant(s) No. 1
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 19/06/2023
                               ORAL ORDER

1. The present application is filed for seeking following

prayers:-

"(A) Your Lordships be pleased to admit and allow the

present application;

(B) Your Lordships be pleased to quash the impugned FIR

being C.R.I 136 of 2016 registered with the Fatehganj Police

Station District: Vadodara and all further proceedings in

pursuance thereto qua the present applicants;

(C) Your Lordships be pleased to stay the investigation and

further proceedings thereto of the FIR being C.R.I 136 of

2016 registered with the Fatehganj Police Station District:

Vadodara qua the applicants, pending the admission and

final hearing of the present application;

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(D) Your Lordships be pleased to grant such orders as

thought fit in the interest of justice;"

2. Heard learned advocate Mr. Harshang Patel for the

applicant and learned Assistant Public Prosecutor Mr. Dhavan

Jaiswal for the respondent - State. Though notice is served,

respondent No.2 - original complainant has not filed any

appearance and/or not chosen to appear.

3. Learned advocate Mr. Harshang Patel for the applicants

has submitted that applicant herein along with other persons

is the accused and respondent No.2 is the original complaint

of impugned F.I.R. being C.R.I-136 of 2016 registered with

the Fatehganj Police Station District: Vadodara under Section

406, 420, 494, 495, 376, 504, 506(2) and 114 of the Indian

Penal Code and Section 3(1)(10) of the Scheduled Caste and

Scheduled Tribes Prevention of Atrocities Act. He has

submitted that entire allegation is levelled against accused

No.1 in the F.I.R. and the same is lodged after a delay of 8

months. He has also drawn my attention towards the order

passed by this Court in the case of Nitin Venilal Dhruv

versus State of Gujarat rendered in Special Criminal

Application No.9398 of 2019 dated 24.10.2019, by which the

Court has recorded that settlement is arrived at between the

complainant as well as original accused No.1, who happens to

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her husband of the complainant. The applicant is brother-in-

law of the accused No.1 and looking to the allegation made

in the F.I.R., no fruitful purpose will be served to continue

the proceedings, and therefore, he prays that in view of the

judgment of the Hon'ble Apex Court in the case of State of

Haryana versus Bhajan Lal and Others reported in AIR

(1992) SC 604, complaint is required to be quashed. Now,

trial, pursuant to the complaint is also commenced and

therefore, undue hardship will be caused to the applicant and

therefore, he prays to quash the impugned F.I.R. by allowing

this application, otherwise also, no ingredients of the sections

mentioned in the F.I.R. pursuant to the alleged offence is

satisfied qua the applicant.

4. Per contra, learned Assistant Public Prosecutor Mr.

Dhavan Jaiswal for the respondent - State has submitted

that F.I.R. is prima facie disclosing offence against the

applicant - accused no.2. He has also submitted that there is

serious charges levelled against the applicant even Section

3(1)(10) of the Scheduled Caste and Scheduled Tribes

Prevention of Atrocities Act. He has also submitted that

pursuant to the F.I.R., charge-sheet is already filed and now

the trial is also commenced and is proceeded further and

therefore, this Court should not exercise powers under Section

482 of the Criminal Procedure Code or under Section 227 of

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the Constitution of India as it should be exercised very

sparingly in view of the various judgments of the Hon'ble

Apex Court.

5.1 I have considered the rival submissions made at the bar

by the respective parties. I have also perused the F.I.R. It

transpires that F.I.R. is filed after much delay of 8 months,

essentially the dispute is between the complainant and

accused No.1 and as per the tenor of the complaint also, it

is the say of the original complainant that accused has

deceived her by making representation about her marital

status and misused her relationship and therefore, the

compliant is filed implicating entire family members and near

relatives in the said alleged incident. It further transpires

that now during the pendency of the application, original

complainant as well as the accused No.1 - husband have

arrived at amicable settlement and the same is approved by

this Court by order dated 24.10.2019 in the case of Nitin

Venilal Dhruv versus State of Gujarat rendered in Special

Criminal Application No.9398 of 2019, more particularly paras

5 to 9 are relevant, which is as under:

"5. By way of the present application under Section 482 of

the Code of Criminal Procedure, 1973 (for short, the 'Code'),

the applicant pray for quashing and setting aside the F.I.R.

being C.R.No.I-136 of 2016 registered with Fatehganj Police

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Station, Vadodara for the offence punishable under Sections

406, 420, 494, 495, 376, 504, 506(2) and 114 of IPC and

section 3(1)(r)(s) of Atrocity Act.

6. Learned advocate for the applicant has taken this Court

through the factual matrix arising out of the present

application.

7. At the outset, it is submitted that the parties have

amicably resolved the dispute. In support of such submission

made at bar by the learned advocates appearing for the

respective parties, they have placed on record affidavit of

settlement of dispute duly signed by the respondent No.2 -

complainant.

8. Since now, the dispute with reference to the impugned

F.I.R. is settled and resolved by and between parties which

is confirmed by the original complainant through his learned

advocate, the trial would be futile and any further

continuation of proceedings would amount to abuse of process

of law. Therefore, the impugned F.I.R. is required to be

quashed and set aside.

9. Resultantly, this application is allowed. Impugned F.I.R.

being C.R.No.I-136 of 2016 registered with Fatehganj Police

Station, Vadodara and all other consequential proceedings

arising out of said FIR are hereby quashed and set aside

qua the applicant only. Rule is made absolute to the

aforesaid extent.

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Direct service is permitted."

5.2 Therefore, when the matter is settled and the

proceedings is quashed qua the original accused No.1, no

fruitful purpose will be served to continue the trial against

the rest of the accused more particularly applicant herein -

accused No.2.

5.3 Further, it will also be fruitful to mention the judgment

of Hon'ble Supreme Court in the case of State of Haryana V/

s Bhajan Lal reported in AIR 1992 SC 604, wherein the

Hon'ble Supreme Court has observed thus -

"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 exhaustive list of myriad kinds of cases wherein such

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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 conclusion that there is sufficient ground for proceeding

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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."

5.4 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

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exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC 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.]

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."

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5.5 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 :-

(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

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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".

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

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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."

5.6 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

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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 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)

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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 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

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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 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

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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,-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.

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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."

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.

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

6.1 In view the above, the present application is

allowed.

6.2 Impugned FIR being C.R.I 136 of 2016 registered

with the Fatehganj Police Station District: Vadodara and all

further proceedings in pursuance thereto qua the present

applicant is quashed and set aside.

6.3 Though the notice is served, the complainant has not

chosen to appear in the matter and contest the petition.

Since the proceeding is quashed by this order, it is open of

the State - Authority to recover the amount of compensation

which is paid to the complainant pursuant to the registration

of the abovementioned F.I.R.

Rule is made absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA