Safi Ahemad Ishaq Alam vs State Of Gujarat
2024 Latest Caselaw 7721 Guj

Gujarat High Court

Safi Ahemad Ishaq Alam vs State Of Gujarat on 1 August, 2024

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     R/CR.MA/5614/2020                                   ORDER DATED: 01/08/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 5614 of 2020
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                         SAFI AHEMAD ISHAQ ALAM & ORS.
                                     Versus
                            STATE OF GUJARAT & ANR.
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Appearance:
MR MA KHARADI(1032) for the Applicant(s) No. 1,2,3
MR HK PATEL, 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 HASMUKH D. SUTHAR

                                Date : 01/08/2024

                                 ORAL ORDER

1. Though duly served, respondent No.2 remained absent. Respondent No.2 communicated through postal communication, which is placed by the Registry, is taken on record.

2. RULE. Learned APP waives service of notice of rule on behalf of respondent-State.

3. With the consent of learned advocates for respective parties, present petition is taken up for final hearing.

4. By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the petitioner/s have prayed to quash and set aside the FIR being CR No.11207025200164 of 2020 registered with Godhra A Division Police Station, Panchmahal for the offences

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punishable under Sections 427, 504, 506(2) and 114 of the Indian Penal Code, 1860 and to quash all other consequential proceedings arising therefrom.

5. Heard learned advocates for the respective parties.

6. It is the case of the applicants that the complaint came to be filed at the instance of respondent No. 2. Applicants Nos. 1 and 2 are the occupiers of land bearing Survey No. 12 Paiki in Godhra, while Opponent No. 2 occupies a portion of land bearing Survey No. 11 Paiki, where go-downs have been constructed, raising questions about their legality. Opponent No. 2 has constructed a compound encroaching on the Applicants' land in Survey No. 12, as shown in the map prepared by the BILR, attached as Annexure-B. Despite the encroachment, Opponent No. 2 has repeatedly quarreled with the Applicants. The Applicants filed several complaints with the police authorities, including the DSP Panchmahal at Godhra and the officer in charge of Godhra A Divisional Police Station on 10.07.2018, 23.07.2018, and 19.01.2019, as shown in Annexure-C. Although the Applicants requested the police to register an FIR against Opponent No. 2, no action was taken. The disputes were eventually resolved through police intervention. Nonetheless, Opponent No. 2 has now lodged an FIR, which the Applicants believe to be an abuse of legal process. Consequently, the Applicants seek to quash the impugned FIR.

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7. Learned Advocate for the applicants has submitted that the impugned FIR is lodged in clear abuse of the legal process, reflecting illegality, impropriety, dishonesty, and injustice. The Opponent No. 2 has misused the legal process by lodging this FIR despite no offence being committed by the Applicants and despite the FIR itself stating that all disputes were resolved. This FIR transforms a civil dispute into a criminal matter through false and frivolous allegations, aimed at pressuring the Applicants with mala fide intent. A review of the FIR shows it fails to establish any case under Sections 427, 504, 506(2), and 114 of the Indian Penal Code. The FIR lacks the essential elements of these sections, particularly in the context of the settled dispute. Additionally, the first informant and his son, Husainbhai, mentioned in the FIR, have a criminal history, including a previous offence under Section 302 of the IPC, with their criminal appeal disposed of by this Hon'ble Court in 2016. Therefore, the FIR is an example of legal perversity and an abuse of process, and should be quashed in the interest of justice.

8. Learned APP has opposed the application and submitted that looking to averments made in the FIR, complaint may not be quashed.

9. Having heard learned advocates on both the sides and perusing the record, it appears that applicants Nos. 1 and 2 are the occupiers of land bearing Survey No. 12 Paiki in Godhra, while Opponent No. 2 occupies a portion of land bearing Survey No. 11

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Paiki, where go-downs have been constructed, raising questions about their legality. Opponent No. 2 has constructed a compound encroaching on the Applicants' land in Survey No. 12, as shown in the map prepared by the BILR, attached as Annexure-B. Despite the encroachment, Opponent No. 2 has repeatedly quarreled with the Applicants. The Applicants filed several complaints with the police authorities, including the DSP Panchmahal at Godhra and the officer in charge of Godhra A Divisional Police Station on 10.07.2018, 23.07.2018, and 19.01.2019, as shown in Annexure-C. Although the Applicants requested the police to register an FIR against Opponent No. 2, no action was taken. The disputes were eventually resolved through police intervention. Nonetheless, Opponent No. 2 has lodged an FIR, which is an abuse of process of law.

9.1. Considering the fact that In this regard, difference was going on between the parties since year 2018. It is alleged in the complaint that in the month of July, 2018, the compound wall was demolished by the petitioner/s. In this regard, the settlement took place, wherein continuation of the said fact, the incident took place and in this regard, the alleged offence took place, wherein it is alleged that in connection with the earlier dispute, the boundary and compound wall of the plot is demolished. It is alleged that applicants have threatened the complainant to demolish the compound wall except this, there is no allegations against the applicants.

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9.2. In view of above, so far as, basic ingredients for breach of public tranquility is concerned and the case to administer the threat and even the allegations of mischief are concerned, no case is made out in this regard and under Section 427 of Indian Penal Code, 1860.

Even, perusing the written submission of the respondent No.2, which is received by postal communication, though in connection with the earlier dispute, in July, 2018, the police has settled the dispute and at that time, no any untoward incident is taken place.

10. To make an offence under Section 506 of the IPC, it is worth to refer to provisions of sections 504 and 506 of the IPC which read as under:

"503. Criminal intimidation. --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.

Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either

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

Section 506. Punishment for criminal intimidation. -- 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;

If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

11. So far as Sections 504 and 506(2) is concerned, in this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Mohammad Wajid & Anr. vs. State of U.P. & Ors. reported in 2023 INSC 683. The Hon'ble Apex Court in paragraph Nos.25, 26, 27 and 28 of the said judgment has observed and held as under:

"Indian Penal Code, 1860; Section 504 - Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the

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light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant - In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.

Indian Penal Code, 1860; Section 504 - One of the essential elements for constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present. (Para 28)

A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.(para

27)"

12. It would be apposite to refer the decisions of the Gujarat High Court as well as Apex Court rendered in case of (i) Pravinbhai Becherbhai Vankar and Ors. vs State Of Gujarat

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reported in 2007(1) GLR 337 and in case of (ii) Manik Taneja & Anr vs State Of Karnataka & Anr. reported in (2015) 7 SCC 423, wherein it is observed that; "in the case of criminal intimidation the threat of injury or the mens rea to cause alarm, or to compel a person to do or omit or to do something is must. Herein no any action or the act on the part of accused is lacking"

13. In case of Manik Taneja (supra), para 11 is required to be reproduced:

"11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation"

as defined in Section 503 IPC is as under:-

"503. Criminal Intimidation.- 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.

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."

A reading of the definition of "Criminal intimidation"

would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person

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threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."

14. In view of the above, no any offence is made out. A bare perusal of the complaint and averments made in the complaint as well as the order taking cognizance no offence is made out under Sections 504 and 506 of the IPC.

15. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported

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in AIR 2006 SC 2872 and in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 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 Section 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 :

(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 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

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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."

16. Considering the aforesaid proposition in consonance with the facts of the case on hand, it is established that no case is made out to prosecute the present petitioner for offence under Section 506 of the IPC. Hence, present is a fit case to exercise powers under Section 482 of the Cr.P.C..

17. In the result, petition is allowed. The impugned FIR being CR No.11207025200164 of 2020 registered with Godhra A Division Police Station, Panchmahal as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the petitioner/s herein. Rule is made absolute to the aforesaid extent only. Direct service is permitted.

(HASMUKH D. SUTHAR,J) KUMAR ALOK