Bipinbhai Ramkrushna Bhatt vs State Of Gujarat
2023 Latest Caselaw 7384 Guj

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     R/CR.MA/16067/2014                            JUDGMENT DATED: 06/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 16067 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               YES
       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               NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                    BIPINBHAI RAMKRUSHNA BHATT & 7 other(s)
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DEEP D VYAS(3869) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 2
MS. DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 06/10/2023

                              ORAL JUDGMENT

1. This is an application filed by the applicants - original

accused challenging issuance of the private complaint being

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Criminal Case No.891 of 2013 registered before the learned

Judicial Magistrate First Class, Umargam for the offence

punishable under Sections-323, 504, 506(2) and 114 of Indian

Penal Code, 1947, and Section 3(1)(x) of the Atrocities Act,

1989. The aforesaid private complaint came to be filed by the

complainant viz.Diwaliben Rajubhai Varli against eight

accused - applicants herein alleging that the complainant was

the owner of the property bearing survey nos.213/8/1,

213/8/1 paiki 2, 213/8 paiki 3, which are the ancestral

property as per the say of complainant. It is alleged in the

complaint that the aforesaid ancestral property was tried to

grab by the present applicant and they were abused with

regard to the caste of the complainant. It is further alleged

that as the complainant was a lady and though before

concerned police station grievance was raised by way of

application dated 07.02.2013; 08.02.2013 and 10.02.2013,

however, no any actions were taken. It further alleged in the

complaint that as the complainant was a poor lady and the

applicants were having the influence in the politics and the

applicants had verbally abused by using filthy language

related to her caste and therefore, the complainant prayed to

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take action against the applicants - original accused and to

punish them accordingly. Initially, after recording the

verification, the learned trial Court had initiated inquiry under

Section-202 of Cr.P.C. and called for the report. It is found

during the inquiry that there was complaint, which was

registered with the police, was also inquired, under Section-

210 of Cr.P.C. the complaint was stayed until the report is

submitted by the concerned police officer. Thereafter, the

Police Inspector, Bhilad Police Station had submitted a report

and the learned trial Court has reproduced the report in the

order dated 07.06.2013, wherein, it is mentioned that there

was a dispute with regard to the land between the Aadiwasi

community and the Brahmin community. On 10.02.2013, when

the aadiwasi people were fencing in the compound wall on the

land of the original owner Bipinbhai Ramkrushna Bhatt i.e.

present applicant no.1 herein, present applicant no.1 reached

to the place, the Aadiwasi people had beaten to the Brahmin

and for that, one Kinnariben Harishbhai Bhatt has lodged an

FIR against the five accused i.e. husband of the complainant

viz. Rajubhai Diwarbhai was shown as accused no.1. The

aforesaid FIR being C.R. No.I-22 of 2013 was initially

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registered for the offence punishable under Sections-323, 354,

504, 506(2) & 114 of IPC, subsequently, during the

investigation, it was found that one of the victim had lost the

pregnancy due to present incident. The report was submitted

to add Section-316 of IPC, which was subsequently added. It

is further revealed that on the application of the present

complainant viz. Diwaliben Rajubhai, a security bond were

executed under Section-107 of the Cr.P.C. by the present

applicant. It is further found from the report of the Police

Inspector, Bhilad Police Station that as there was ongoing

dispute between the present complainant and the applicants

with regard to land and on making fencing on the compound

wall of the disputed land, the incident occurred and for that,

FIR also came to be lodged.

2. Considering the report, the learned trial Court had

ordered to issue summons under Section 204 of Cr.P.C. on the

ground that present complainant though approached the

concerned police station, however, the concerned police

station had not acted on the complaint of the present

complainant and therefore, without observing anything on

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merit, an order of issuance of the process under Section-204

was passed. The said order dated 07.06.2013 is the subject

matter of challenge before this Court.

3. Heard learned advocate Mr. Deep D. Vyas for the

applicants and learned advocate Mr. Vimal Purohit for the

respondent - complainant as well as learned APP Ms.

Divyangna P Jhala for the respondent - State.

4. Learned advocate Mr. Deep D. Vyas submitted that there

was no any iota of evidence with regard to the involvement of

the applicants. In-fact, though the applicant no.1 is the owner

of the land, they were beaten by the family members of

complainant and due to same, the daughter of the

complainant had lost the pregnancy and the serious offence,

which was lodged against family members of complainant,

which was culminated into chargesheet and at present, the

trial is going on before the leaned Sessions Court. Learned

advocate further submitted that this is nothing, but a counter-

blast of the FIR, which was lodged by the present applicants

against the family members of the complainant. In fact, the

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FIR of present applicant was prior in point of time, which was

lodged on 10.02.2013, a private complaint, which was lodged

on 22.02.2013, which is nothing, but an afterthought of the

registration of the FIR. There was a serious allegations made

against the husband of the complainant with regard to

outraging the molesty of the woman in the FIR, however, with

a view to settle the score against the present applicants, all

male members of the family were falsely implicated in the FIR

and therefore, learned advocate had prayed to quash the

private complaint and prays to allow the application.

5. On the other-hand, learned advocate Mr. Vimal Purohit

submits that though the complainant had approached by way

of application before the concerned police station on

07.02.2013 and 10.02.2013 due to non-action on the part of

the police officer, the private complaint was lodged before the

learned Court below. The respondent had made specific

allegation of abusive words uttered by the applicants, which

attracts the provision of Atrocity Act and therefore, at this

stage, learned advocate prays not to interfere with the

proceedings and to dismiss the aforesaid application.

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6. Learned APP Ms. Divyagana Jhala for the respondent -

State submits that as all the ingredients of alleged sections

are mentioned in the private complaint and therefore, at this

stage, interference may not be required and therefore, she

prays to dismiss the application.

7. Considering the submissions advanced by the learned

advocates for the respective parties, the first thing, which is

required to be noted is that while issuing the summons, the

learned Court below had not gone into the merits of the case

and neither arrived at prima-facie satisfaction as to whether

there is ground for proceeding, by reading complaint as a

whole. Only on the ground that the concerned police station

has not acted on the complaint, this summons under Section-

204 of Cr.P.C. has been issued.

8. The law laid down by the Hon'ble Apex Court in the case

of Fiona Shrikhande Vs. State of Maharashtra and Another

reported in (2013) 14 SCC 44, wherein the Hon'ble Apex

Court in Paragraph-11 has observed as under:-

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"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint."

9. It is held by the Hon'ble Apex Court that the Magistrate

while issuing process, is expected to examine prima facie the

truth or falsehood of the allegations made in the complaint.

While reading the order under Section-204 passed by the

learned Court below, it is found that not a single word is

mentioned with regard to merit of the allegation. Merely, after

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reproduction of report by the Police Inspector, which also not

support the allegation, the learned Court below has observed

that the complaint, which is filed by the present complainant

had not been acted and therefore, the process is required to

be issued and impugned order passed for issuance of the

process for the offence punishable under Sections-323, 504,

506(2) and 114 of Indian Penal Code, 1947, and Section 3(1)

(x) of the Atrocities Act, 1989.

10. Now, if this Court may look into the merits of the case,

certain aspects are undisputed, which are mentioned herein

below.

(i) The FIR came to be lodged by the present applicants

on 10.02.2013 on the same day and when the offence

was committed punishable under Sections- Sections-

323, 504, 506(2) and 114 of IPC, wherein, serious

allegation against the husband of the complainant as

well as other accused persons against outraging the

molesty of woman is made out.

(ii) During the investigation, a report submitted by the

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Police Inspector, Bhilad Police Station, wherein,

Section-316 of IPC added as one of the victim

viz.Bhumikaben Krunalbhai Bhatt has lost fetus. The

aforesaid section was added and chargesheet came to

be submitted on 14.06.2013 before the concerned

Magistrate.

(iii) It is also not in dispute that there was ongoing

dispute between the Brahmin and the Aadiwasi with

regard to the land, which was stated to be owned by

the present applicants as per report of Investing

Officer, a chapter case was also registered against the

present applicants and security bond was executed

under Section-107 of Cr.P.C.

(iv) It is also not in dispute that in the private

complaint that there was no specific time, date and

place mentioned, however, only the abusive words,

which is mentioned in the complaint, was alleged to

have been used by the present applicants.

11. For attracting the provision of Atrocities Act under

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Section-3(1)(x), which provides as under :-

3. Punishments for offences of atrocities.-- (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;

12. It is found that the impugned complaint is silent with

regard to place of occurrence, time and date. Therefore, the

first question, which is required to be answered is that

whether the said place was within a public view; whether the

abusing language with regard to the caste, which alleged to

have used, witnessed by any independent person. As there

was no any place mentioned in the complaint, it is difficult to

ascertain that the same is falling in the definition of the public

view. There was no any independent witness mentioned in the

complaint with regard to the witnessing the incident.

Therefore, the allegations with regard to the Atrocities Act is

not found to be satisfied with.

13. So far as the offence under Section-504 is concerned, in

the case of Fiona Shrikhande Vs. State of Maharashtra and

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Another (supra), the Hon'ble Apex Court has observed in

Paragraph-13 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.

14. Considering the ratio laid down in Fiona Shrikhande Vs.

State of Maharashtra and Another (supra), the allegations

with regard to Section-504 is also not satisfied with and

therefore, this Court has no hesitation in holding that the

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private complaint, which is filed by the complainant is

nothing, but an abuse of process of law.

15. The scope of exercise of power under Section 482 of the

Code and the categories of cases, where the High Court may

exercise its power under it relating to cognizable offences to

prevent abuse of process of any court or otherwise to secure

the ends of justice were set out in some detail by the Hon'ble

Apex Court in the case of Haryana & Ors. Vs. Bhajan Lal &

Ors. reported in 1992 AIR 604 : 1992 Supp (1) 335). A note of

caution was, however, added that the power should be

exercised sparingly and that too in rarest of rare cases. The

illustrative categories indicated by the Hon'ble Apex Court are

as follows:

"(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 Section 156(1) of the Code

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except under an order of a Magistrate within the purview of Section 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 Section 155(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 against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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

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wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

16. In view of above, the present application is allowed. The

proceedings of private complaint being Criminal Case No.891

of 2013 registered before the learned Judicial Magistrate First

Class, Umargam is hereby quashed. All consequential

proceedings pursuant thereto shall stand terminated.

Rule is made absolute to the aforesaid extent.

(M. K. THAKKER,J) A. B. VAGHELA