Gujarat High Court

Kiritkumar Bhanubhai Patel vs State Of Gujarat on 27 September, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/9014/2021                                         ORDER DATED: 27/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 9014 of 2021

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                           KIRITKUMAR BHANUBHAI PATEL
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
RICHA SHAH(7541) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 27/09/2023

                                     ORAL ORDER

1. Present petition is filed to quash and set aside

impugned complaint being C.R.No.I-11209049210323 of 2021

for the offences punishable under Section 354 of IPC read

with sections 3(1)(r). 3(1)(s), 3(1)(w)(i), 3 (1) (w) (ii) and 3(2)

(v)(A) of The Schedule Castes and Tribes (Prevention of

Atrocities) Act, 1989 (herein after referred to as the

'Atrocities Act' for the sake of brevity and convenience) with

Talod Police Station, District: Sabarkantha, and charge sheet

filed pursuant thereto registered as Atrocity Case No.5 of

2021 pending before the Court of learned 2 nd Additional

District and Sessions Judge, Sabarkantha and all consequent

proceedings arising therefrom against the petitioners.

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2. Brief facts of the case as alleged in the FIR are as

under:

2.1 The complainant has alleged in the impugned FIR dated

31.03.2021 that she is presently residing at Himmatnagar

along with her husband and 3 children. It is further alleged

that the husband of the complainant had initially married

with Manjulaben who happened to be daughter of

complainant's paternal sister who expired and then

complainant married him in 2005. It is further alleged that

they used to reside at Fojivada and are presently residing on

rent at Himmatnagar for the last 2 to 3 months. It is

further alleged that before about 4 months, the complainant

had oral quarrels with the petitioner and she had made an

application which later on was settled and the complainant

went to Himmatnagar thereafter. It is further alleged that

before about one month, the complainant came to Fojivada

and on 23.02.2021, at about 4.30 p.m. in the evening, when

the complainant had gone to attend nature's call and when

she came out and was cleaning the loo, the petitioner had

suddenly come and tried to pull the 'saree' of the

complainant from behind and when she turned around and

saw petitioner, the complainant shouted and the petitioner

went away. It is further alleged that thereafter, at about

8.30 to 9 p.m., when the complainant had gone at the

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backyard of her house to attend nature's call, once again the

petitioner made inordinate demands and the complainant

started shouting and the petitioner went away. It is further

alleged that next morning, when the complainant was doing

work at the backyard at about 8 a.m. in the morning, the

petitioner was standing naked at his house in his bathroom

and was making gestures and thereafter the complainant

went to Himmatnagar and made a written complaint and

thus, upon the aforesaid allegations, the impugned FIR came

to be registered.

3. Heard learned advocate, Mr.Vaibhav Sheth for the

petitioner, learned APP, Mr.Chintan Dave for respondent no.1-

State and learned advocate Ms.Richa Shah for respondent

no.2.

4. At the time of hearing, learned advocate Mr.Vaibhav

Sheth has drawn my attention to the contents of FIR and

earlier order passed by coordinate Bench in present matter as

well as in Criminal Misc. Application No.5444 of 2022 and

Criminal Misc. Application No.13711 of 2022. He has

submitted that present complainant has filed five different

complaints against the present petitioner. He has submitted

that the complainant is indulging in such activity to harass

the villagers and the villagers have also made protest against

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the conduct of the complainant and also lodged a complaint

against her about immoral activities. He has further

submitted that on bare reading of the complaint, it is clear

that the complaint is filed with a view to harass present

petitioner and surname of the complainant is mentioned as

"Joshi" in the complaint, which does not belong to Scheduled

Tribe community. He has submitted that as the father of the

complainant was "Damor", she belonged to that community

before marriage and she is trying to take disadvantage of

same by filing frivolous complaint.

4.1 He has also submitted that out of four FIRs,

proceedings of two FIRs have been stayed by this Honourable

Court and in other two FIRs, police has filed "C" summary

report.

4.2 He has also submitted that on bare reading of the

complaint, allegations made against the petitioner by the

complainant do not suggest even a prima facie case and it

does not disclose any material by which any prudent person

can reach to a conclusion that alleged offence is made out

against the present petitioner. He has further submitted that

present complaint is filed with mala fide intention and with

a view to harass the petitioner. He submitted that

considering the decision in the case of in the case of State

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of Haryana V/s Bhajan Lal reported in AIR 1992 SC

604, present petition may be allowed by quashing the

impugned complaint.

5. Per contra, Ms.Richa Shah, learned advocate for

respondent no.2 has submitted that prima facie case is made

out against the present petitioner. She has further submitted

that the complainant has narrated the incident in detail and

certificate about her caste is also produced before police,

therefore, it can be said that no case is made out to exercise

powers under Section 482 of Criminal Procedure Code.

6. Learned APP, Mr.Chintan Dave, for the respondent-State

has supported the submissions made at bar by learned

advocate for the complainant. He has also argued that in

view of the material available with investigating officer,

allegations made in the complaint prima facie constitute an

offence against present petitioner, however, he is not in a

position to dispute the fact that "C" Summary report is filed

in other two complaints and other two complaints have been

stayed by this Court. He, therefore, prays that this Court

may pass appropriate order considering the material available

on record.

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7. I have considered rival submissions made at bar. I have

also considered the allegations made in the FIR. Prima facie,

offences are also alleged under the provisions of Section 354

of IPC read with Section 3 (1) (r), 3 (1) (s), 3 (1) (w) (i) and

3 (1) (w) (ii), 3 (2) (va) of the Atrocities Act, therefore, these

provisions are reproduced hereunder:-

"354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

3. Punishments for offences 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;

....

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(w) (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipients consent;

(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.

...........

3.(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 2[knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;

[(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 such member, shall be punishable with such punishment as specified under the Indian Penal Code

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(45 of 1860) for such offences and shall also be liable to fine;]"

8. This Court may also refer to 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, 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

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

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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

against the accused.

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(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."

8.1 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

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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."

8.2 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 :

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"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,

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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".

8. "Criminal intimidation" has been defined in Section 503 which reads as under :

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"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

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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."

9. It transpires that the incident in question has taken

place at the residential premises of the complainant and the

allegations are made for the offence under Section 354 also.

However, at the time of alleged incident, as per the say of

the complainant, only the complainant and present petitioner

were present at the place of incident and no other person

was present. Though incident took place near the house of

the complainant, there was no other witness except the son

of the complainant. This itself creates suspicion about the

occurrence of the incident. However, considering the provisions

of the Atrocities Act, it cannot be considered that the

incident has happened in 'public view', as is required under

the provisions of the Atrocities Act.

9.1 In this regard, this Court may refer to the decision in

the case of Hitesh Verma V/s State of Uttarakhand and

Another reported in 2020 SCC online (SC) 907, wherein it is held in paragraphs 12, 14 and 15 as under:

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"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".

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 FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a

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

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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 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."

9.2 It is also fruitful to refer to the judgment of the

Hon'ble Apex Court in the case of Sri Gulam Mustafa versus

State of Karnataka reported in 2023 (0) AIJEL - SC 71008, more particularly paras 36 to 39 thereof, which read as

under :

"36. What is evincible from the extant case-law is that this Court has been consistent in interfering in

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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-judicial 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 therein to the respondent no.2/her family members. It is evident that resort was not 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 duty bound to be vigilant before invoking any provision of a

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very stringent nature, 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 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."

10. Considering the fact that the complainant has also filed

other four complaints of similar nature against the present

petitioner, it seems that the complainant is in habit of filing

such complaints by seeking vengeance and with a view to

settle some personal score with the petitioner. Therefore, it

seems that this is a fit case wherein this Court should

exercise its powers, as the material on record do not inspire

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any confidence about the allegations made in FIR. On the

contrary, conduct of the complainant speaks about itself.