Gujarat High Court

Rathod Mansangbhai Lagharabhai vs State Of Gujarat on 5 October, 2023

Bench: Sandeep N. Bhatt

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 16233 of 2019

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                     RATHOD MANSANGBHAI LAGHARABHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2
MR K B MAGHNANI(9673) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 05/10/2023
                                 ORAL ORDER

Rule returnable forthwith. Learned APP waives

service of notice of rule on behalf of respondent - State.

1. The present application is field for seeking following

reliefs:

"a) YOUR LORDSHIPS BE PLEASED to admit this petition;

(b) YOUR LORDSHIPS BE PLEASED to allow this petition by way of quashing and setting aside the FIR being C.R.No.II- 57/2019 lodged with Chotila Police

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Station, District Surendranagar and any subsequent proceedings arising out of the same;

(c) To call for the police papers of the investigation carried out in regard to the impugned FIR for perusal of this Hon'ble Court;

(d) During the pendency and final disposal of this petition, YOUR LORDSHIPS MAY BE PLEASED to stay the further investigation of impugned FIR being CR No.II-57/2019 lodged with Chotila Police Station, District Surendrangar and direct the I.O. not to take any coercive steeps against the petitioner;

(e) To pass any other appropriate and just order/s;"

2. Brief facts of the case as per the case of the

applicants in this application are as such that the the

applicants are responsible for handling the day-to-day

affairs of the school and managing all its operations. It

came to their attention that respondent no.2 was

frequently absent and irregular in attending school. In

response to this, the applicants and other staff members

informed him of his irregularity and requested that he

attend school regularly to ensure the education of the

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children was not disrupted. It is further the case of the

applicants in this application are as such that the

complainant was making students drink water that had

already been partially consumed by him. Additionally, it

was alleged that he was making signals to the students.

In light of these concerns, applicant no.1 wrote a

communication on August 5, 2019, addressed to the

Taluka Primary Education Officer, seeking appropriate

action against respondent no.2. It is further the case of

the applicants in this application are as such that in a

surprising turn of events, the complainant fabricated a

notice dated July 3, 2019, falsely claiming that it had

been issued under the signature and seal of applicant

no.1. He presented this notice as if it had been served on him. It appears that this notice was concocted under

the influence of someone else, with an attempt to levy

false allegations that could invoke offenses punishable

under the Atrocity Act. The applicants do not possess a

copy of this notice as they did not actually issue it. It is

further the case of the applicants in this application are

as such that consequently, the applicants filed a

complaint with the Police Inspector in Chotila on August

8, 2019, stating that respondent no.2 had created a

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fraudulent and fabricated notice, affixed the school's seal,

and forged the signature of applicant no.1. Typically, in

the school's practice, any communication issued carries an

outward number for reference. It is further the case of

the applicants in this application are as such that in

response to these developments, the complainant

demanded that the applicants withdraw the complaints

dated August 5, 2019, and August 8, 2019. He

threatened that if they failed to do so, he would take

action to file a false complaint against them, invoking

the provisions of the Atrocity Act. He insinuated that

this would result in the applicants being denied bail and

possibly losing their jobs. Hence this application is

preferred.

3. Heard Mr. Darshit Kamdar, the learned counsel

appearing on behalf of Mr. Kunal S. Shah, the learned

counsel for the applicants, Mr. K.B. Maghnani, the

learned counsel for the respondent No.2 - complainant

and Mr. Chintan Dave, the learned Additional Public

Prosecutor (APP) for the respondent No.1 - State of

Gujarat.

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4. When the matter is called out, learned APP has

tendered the report received from concerned Police

Station prepared by Deputy Superintendent of Police

(Dy.S.P.), who is also personally present before this

Court today. He has also tendered the papers of

investigation for perusal of this Court, whereby it seems

that some statements are recorded by the Investigating

Officer pursuant to the alleged F.I.R., which are taken

on record.

5.1 Mr. Darshit Kamdar, the learned counsel appearing

on behalf of Mr. Kunal S. Shah, the learned counsel for

the applicants has drawn my attention to the impugned

F.I.R., which is filed for the offences punishable under the provisions of Sections 506(2) and 114 of the Indian

Penal Code, 1860 (hereinafter referred to as "the I.P.C.)

as well as Sections 3(i)(r)(s) and 3(ii)(v)(a) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as "the

Atrocities Act"). He has submitted that on the bare

reading of the allegation, prima facie, no offence has

been made out against the present applicants. Moreover,

the impugned F.I.R. does not disclose anything regarding

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the necessary ingredients about the averments to the

effect that the accused are not from the Scheduled

Castes and Scheduled Tribes community. Therefore, he

has submitted that in view of the judgment of the

Hon'ble Apex Court in the cases of (i) Hitesh Verma V/s

State of Uttarakhand and Another reported in 2020 SCC online (SC) 907, (ii) Gorige Pentaiah versus State of

Andhra Pradesh & Ors., reported in 2008 (12) SCC 531, and (iii) Sri. Gulam Mustafa Versus State of Karnataka

reported in 2023 (0) AIR (SC) 2999, the complaint is not

required to be entertained.

5.2 Furthermore, he has submitted that on bare reading

of the impugned F.I.R., no ingredients under Sections Sections 506(2) and 114 of the I.P.C. are satisfied.

Moreover, he has contended that applicant No.1 serves

as the Principal of the school, and applicant Nos.2 to 3

also serves as Assistant Teachers, including the

complainant who holds the position of a teacher. With

the intention to seek revenge with all the accused

persons, it is alleged that the present complainant has

filed the present complaint with mala fide intention. This

action is believed to be motivated by the fact that the

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principal, misusing his caste status, is required to ensure

that teachers perform their duties appropriately. Thus, it

is argued that the present complaint is nothing but a

classic example of the abuse of the legal process.

Therefore, he has prayed to allow the present application

by quashing and setting aside impugned F.I.R. as well

as consequential proceedings initiated pursuant to the

impugned F.I.R., in the interest of justice, and more

particularly, considering the judgment of the Hon'ble

Supreme Court in the case of State of Haryana V/s

Bhajan Lal reported in AIR 1992 SC 604.

6. Per contra, Mr. K.B. Maghnani, the learned

counsel for respondent No.2, the complainant, has drawn my attention to some photographs showing two pots

placed on a stool. He has also presented the fact that

notice was issued by the Principal, informing the

students that two classes of students, one belonging to

the S.C. & S.T. and the other to the non-S.C. & S.T.,

were instructed to fetch water from their respective pots.

Based on this evidence, he has argued that prima facie,

the allegations made in the impugned F.I.R. constitute

offenses under the provisions of the Atrocities Act.

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Furthermore, he has asserted that considering the

averments made in the F.I.R., an offense under Section

506(2) is also made out. Therefore, he has requested that

the present application is required to be dismissed.

7. Mr. Chintan Dave, the learned Additional Public

Prosecutor (APP) for respondent No.1, the State of

Gujarat, has brought to my attention the report

submitted by Dy.S.P., which states that a Panchnama

was prepared at the place of the incident. Additionally,

statements of various students and others present at the

scene have been recorded. Furthermore, Mr. Dave has

indicated that the notice in question was sent for the

opinion of handwriting expert regarding the Forensic Science Certificate (F.S.C.), and the report supports the

assertion that the handwriting in question belongs to the

accused individuals. Therefore, he has argued that prima

facie, all the necessary ingredients are satisfied, and it cannot be said that the incident never occurred based on

the available facts. As a result, he has requested that

the powers under Section 482 of the Criminal Procedure

Code, 1973, which should be exercised very sparingly,

should not be invoked.

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8.1 I have considered the rival submissions made at the

bar. I have also considered the tenor of the impugned

F.I.R. I have also cursorily perused the materials of the

investigation carried out by the Investigating Officer. It

is apparent that while the opinion of the handwriting

expert supports the content of the notice, prima facie, it

appears that statements from many present students

were recorded in the presence of their parents, and the

workers, which do not corroborate the prosecution's case.

In fact, they are providing statements that suggest a

different version of events. Moreover, considering the

tenor of the impugned F.I.R., there is no whisper of

allegations concerning the caste of the accused individuals, as required by law to establish that the

accused do not belong to the S.C. & S.T. community.

Therefore, taking into account other aspects as well, it

appears that, prima facie, the impugned F.I.R. does not

inspire confidence. Instead, it seems that the F.I.R. has

been lodged because applicant No.1 serves as a principal,

and the other accused as well as complainant serves as

a teacher in the same school. Due to potential

administrative issues, applicant No.1 might have

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reprimanded the complainant. Consequently, it is

suggested that this complaint may have been filed with

a desire for retaliation, abusing the complainant's caste

status as a person from the S.C. & S.T. community. It

is possible that at the relevant time, there might have

been some heated exchanges between the applicants and

the complainant. Based on the assertions made in the

present application, it appears that, prima facie, the ingredients required under the aforementioned sections

have not been satisfied and complaint filed with some

mala fide intention.

8.2.1 It is fruitful to refer the provisions of Sections

406(2) and 114 of the I.P.C., as under:

"Section 406 in The Indian Penal Code:-

406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 114 in The Indian Penal Code:-

114. Abettor present when offence is committed.--

Whenever any person, who is absent would be liable to

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be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."

8.2.2 It is fruitful to refer the provisions of Sections

3(i)(r)(s) and 3(ii)(va) of the Atrocities Act, as under:

"3. Punishment for offences of atrocities

1. Whoever, not being a member of a Scheduled Caste

or a Scheduled Tribe:

(r) intentionally insults or intimidates with intent to

humiliate a member of a Scheduled Caste or a

Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a

Scheduled Tribe by caste name in any place within

public view;

3(2) Whoever, not being a member of a Scheduled

Caste or a Scheduled Tribe-

[(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

Tribe or such property belongs to suchmember, shall be

punishable with such punishment as specified under the

Indian Penal Code (45 of 1860) for such offences and

shall also be liable to fine;"

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8.2.3. It is also fruitful to refer the judgment of the

Hon'ble Apex Court in the case of Hitesh Verma (supra),

more particularly, paragraphs 11 to 15, 16 and 18, as

under:

"11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under:

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

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".

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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 court, then the parties are availing their remedies in accordance with the procedure established

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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 and Ors. v. State through Standing Counsel and Ors. 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 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

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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

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

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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 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.alleged offence been committed inside a building, and also was not in the public view. However, if the offence is

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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 p13. 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

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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

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Such action is not for the reason that respondent No.2 is member of Scheduled Caste.lace 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

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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 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.

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

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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."

8.2.4 It is also fruitful to refer the judgment of

the Hon'ble Apex Court in the case of Gorige Pentaiah versus State of Andhra Pradesh & Ors., reported in 2008(12) SCC

531, it is held in paragraph 8 as under:

"8. 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 Sec.3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of 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

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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."

8.2.5 It is also fruitful to refer the judgment of the

Hon'ble Apex Court in the case of Sri. Gulam Mustafa (supra), more specifically, paragraphs 36 to 39 are

relevant, 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 extra-

udicial 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

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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 duty26 bound 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.

39. For the reasons aforesaid, the Court finds that the

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High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside."

8.3 Time and again, this Court has expressed concerns

about the tendency to file F.I.R.s by invoking the

provisions of the Atrocities Act in cases involving

disputes between two private individuals. These disputes

are given a different colour by invoking the provisions of

the Atrocities Act, which includes stringent provisions.

Such proceedings are initiated with the intention of harassing individuals with whom the complainant has

disputes of a different nature. This misuse of the

complainant's status as belonging to the S.C. & S.T.

community often leads to complaints being filed without

verifying the actual facts of the incidents. This creates

significant harassment for accused individuals, such as