Gujarat High Court

Narharibhai Bhagwanbhai Patel vs State Of Gujarat on 30 January, 2024

                                                                                     NEUTRAL CITATION




     R/CR.A/2557/2023                               JUDGMENT DATED: 30/01/2024

                                                                                     undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL APPEAL (FOR QUASHING OF ORDER/STAY) NO. 2557 of
                             2023
                             With
      CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023
             In R/CRIMINAL APPEAL NO. 2557 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

==========================================================

1     Whether Reporters of Local Papers may be allowed                   NO
      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                 YES
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                        NARHARIBHAI BHAGWANBHAI PATEL
                                     Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR AV NAIR(5602) for the Appellant(s) No. 1
MR VIJAY H NANGESH(3981) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 30/01/2024

                               ORAL JUDGMENT

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

1.Present appeal is filed under Section 14A of

the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 ('the

Atrocities Act' hereinafter) challenging the

judgment and order passed below Exhibit 12 in

Atrocity Case No.05 of 2022 by the learned

Special Judge (Atrocities) ChhotaUdepur at

Bodeli, dated 20.09.2023, whereby the

application preferred by the present

applicantoriginal accused No.8 seeking

discharge was partly rejected.

2.It is the case of the applicant that one FIR

came to be lodged with the Sankheda Police

Station, District ChhotaUdepur being C.R.No.

11184009220776 of 2022, for the offences

punishable under Sections 379(A), 143, 323,

147 and 149 of the Indian Penal Code, 1860

and Sections 3(1)(R), 3(2)(Va) of the

Atrocities Act. It is alleged in the FIR that

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

16 accused who were named in the FIR have by

creating the unlawful assembly assaulted on

the complainant, his wife and son as well as

one witness Ajaysinh RajSolanki and had

stolen the chain.

3.On setting criminal law in motion, the

investigation was carried out and the FIR was

culminated into the chargesheet, which was

filed before the Competent Court for the

aforesaid sections.

4.On filing the chargesheet, the application

under Section 227 of the Code of Criminal

Procedure, 1973 was preferred below Exhibit

12 by the present applicant, who is accused

No.8 seeking the discharge from the alleged

offences. Learned trial Court, has partly

allowed the aforesaid application and

discharged the applicant from the Sections

3(1)(R) of the Atrocities Act and rejected

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

the application qua the other offences. Being

aggrieved and dissatisfied with the aforesaid

judgment and order dated 20.09.2023, present

appeal is preferred.

5.Heard the learned advocate Mr.A.V.Nair for

the appellant, learned APP Ms.Monali Bhatt

for respondent No.1State and learned

advocate Mr.Vijay Nangesh for the respondent

No.2.

6.Learned advocate Mr.Nair submits that there

was no any evidence, which is collected

showing the involvement of the present

applicant. It is the case of the prosecution

that the applicant was standing along with

the other accused, but that would not attract

the provisions of Section 149 of the Code of

Criminal Procedure, 1973. Learned advocate

Mr.Nair submits that when the complainant

reached to the place of offence, the scuffle

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

was already started, therefore, it cannot be

said that, with a view to that, unlawful

assembly was form with common object.

6.1. Learned advocate Mr.Nair submits that

even there is no overt act attributed to

the present applicant and only allegation

made in the FIR is that he was present

along with the other accused and

instigated to the other accused by saying

"maaro...maaro". Learned advocate Mr.Nair

submits that even the ingredients of the

Atrocities Act are also not satisfied as

there was no any intention on the part of

the applicant to commit an offence with a

view that complainant is belonging to the

particular caste.

6.2. Learned advocate Mr.Nair has relied on

the decisions rendered by the Apex Court

in case of Vishnu Kumar Shukla and others

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

vs. State of Uttar Pradsh and other

(Criminal Appeal No.3618 of 2018),

Shashikant Sharma and ors vs. State of

Uttar Pradesh and anr. (Arising from

Criminal Appeal No.5323 of 2023), and in

the case of Tribhuvan Nath vs. State,

(Delhi) rendered by the High Court of

Delhi and submits that there was no any

iota of evidence collected during

investigation showing the active

participation of the applicant in the

offence. By making the aforesaid

submissions, the learned advocate Mr.Nair

prays to allow this application and

discharge the applicantaccused from the

charges.

7.Considering the submissions made by the

learned advocate Mr.Nair for the applicant

and the chargesheet papers which is the part

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

of the compilation, this Court deems it fit

to consider allegation made in the FIR, which

is as under:

7.1. It is the case of the complainant,

namely, Manojbhai @ Manojbhai Nathabhai

Solanki, who is the husband of Jyotiben

Manojbhai Solanki, Sarpanch of Kavitha

Gram Panchayat alleging that at around

05:30p.m. when he was returning after

dropping the grandson Yaksh at his house,

on the way one Mohansinh Ramsinh Solanki

had shouted by calling his name and

instructed to stop there and on stopping,

it was conveyed that his son came from

Vadodara and his son wants to talk with

the complainant and therefore, he was

asked to reach at the place of offence.

When he reached, the family members of

Mohansinh were already present there and

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

there was hot altercation which was going

between the family members. The son of

Mohansinh had asked to the complainant

that in the process to remove the

encroachment, whether the notice was given

at the instance of the father, namely,

Mohansinh, the complainant had denied the

same and conveyed that there was no any

connection of Mohansinh with the notice.

After replying he was about to left the

place, when he reached near the motorcycle

one Sardarsinh Fatehsinh RajSolanki

instructed all lady members, who were

gathered there to start assaulting on the

complainant. All the lady members have

inflicted the kicks blows to the

complainant, on raising the alarm, wife

and son of the complainant were reached to

the place of offence. Thereafter, all the

accused persons, who are named in the FIR

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

including the present applicant has

started assaulting to the complainant and

his family members and thereby the

injuries were caused by the accused, who

are named in the FIR. During this offence,

the chain which was worn by the applicant

was snatched and shirt and the cloths were

torn, earrings were also lost during the

scuffle which was worn by the wife of the

complainant. On intervention of the other

village peoples, they were saved and

accused had left from the place of

offence.

7.2. The aforesaid FIR was lodged on the very

day of the incident i.e. on 06.08.2022

against 16 persons. The investigation was

started, the Investigating Officer had

recorded the statements. The witnesses

namely Jyotiben, who is the wife of the

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

Manojbhaicomplainant, Ajaybhai Manojbhai

Solankison of the complainant,

Priyankaben Ajaybhai Solanki daughterin

law of the complainant, Adeysinh

Bharatsinh RajSolanki, who are the

neighbors and injured witnesses of the

offence, and the village peoples, namely,

Dharmendrasinh Adeysinh Solanki, whose

father was injured, Taraben Dharmendrasinh

Solanki, Ranguben Prabhatbhai Vajir,

Maheshbhai Rameshbhai Naik, Daljibhai

Prabhabhai Vajir, Vishalbhai Bhupatbhai

Naik, Sukhdevbhai Vechatbhai Naik,

recorded who have also narrated the

incident mentioned in the Fir.

7.3. Addition of this, one witness namely

Dharmendrasinh Adeysinh Solanki has also

stated in his statement that when he went

to save his father, whose cloths were torn

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

by the respondentaccused, the present

applicant was present and instigating to

the remaining accused by saying "maaro...

maaro...". From the evidence of this

witness, prima facie, it can gather that

the present applicant was the member of

unlawful assembly and has instigated to

the other accused for assaulting on the

complainant and the witnesses.

8.The judgments which were relied by the

learned advocate Mr.Nair are the settled

principle of law wherein the Apex Court in

clear terms had laid down the principles for

considering the application under Section 227

of the Code of Criminal Procedure, 1973, the

following principles are reproduced

hereinbelow:

"(1) That the Judge while considering the question of framing the charges under Section2 27 of the Code has the undoubted power to sift and weigh the evidence for

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By an large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

conducting a trial."

9.Considering the provisions i.e. Section 227

of the Code of Criminal Procedure, 1973 at

the stage of deciding the application of

discharge only prima facie case is to be seen

whether the case is beyond reasonable doubt

is not to be seen at this stage, if Court

comes to the conclusion that the commission

of an offence is a probable consequences, a

case for framing of charge exists at that

stage probative values of materials on record

cannot be gone into. At the time of framing

of the charge, it is not necessary for the

prosecution to establish beyond all

reasonable doubts that the accusation which

they are bringing against the accused person

is bound to be brought home against him. The

purpose of Sections 227 and 228 of the Code

of Criminal Procedure, 1973 is to ensure that

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

the Court should satisfied that the

accusation made against the accused is not

frivolous and there is some material for

proceeding against him. The evidence has yet

to be taken and the aspect which accused

terms vulnerable can be very well clarified

by the evidence when the prosecution has its

opportunity of placing case through the

witness in the Court.

10. Submission of learned advocate Mr.Nair

is that there was no reason to remain present

when the family members were gathered and

scuffle was taken place and the genesis of

the FIR is that the notice which was issued

for removing the encroachment was not against

the applicant, cannot be examined at this

stage.

11. It is submitted that as the present

applicant is the father of the lady, who

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

contested the election against the wife of

the complainant, he was falsely implicated in

the FIR, would be the defence of accused,

this can be considered as a ground to be the

part of unlawful assembly. This case is

instituted on the police report and

therefore, the Court is required at the time

of framing of charge to confine its attention

to the documents referred to under Section

173 of the Code of Criminal Procedure, 1973

only. Authenticity and veracity of the

evidence is yet to be gone into during the

trial. Therefore, at the stage of framing of

charges, the defence of the accused that

because of political rivalry, he was falsely

implicated is not required to be considered.

12. Learned advocate Mr.Nair relies on the

medical certificate which was produced

wherein during the examination of the

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

injured, namely, Ajaybhai Manojbhai Solanki,

he narrated the names of fourfive persons,

wherein the name of the present applicant was

not referred. The other injured witness,

namely, Manojbhai Solanki has stated in his

history that opposite party had assaulted,

same was the certificate wherein the history

was recorded of Jyotiben Manojbhai Solanki.

13. Learned advocate submits that though the

name of fourfive persons were mentioned in

the medical certificate of Ajaybhaiinjured

witness, 16 persons accused were implicated

in the FIR.

14. This Court is of the view that it would

be hazardous to act on the discrepancies in

the names mentioned in the medical

certificates as at the stage of framing of

charge the Court has to see that whether

there is a sufficient ground for presuming

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

that the accused has committed an offence and

if the answer is in affirmative then the

order of discharge cannot be passed and the

accused has to face the trial. Only the

prima facie case is to be seen, no strict

standard of proof while evaluating the

material to ascertain whether there is a

prima facie case against the accused is not

to be applied.

15. That charge for which the accused

present applicant, was claimed to be tried is

under Section 379A, 143, 323, 147 and 149 of

the Indian Penal Code and Sections 3(2)(Va)

of the Atrocities Act. As the another charge

under the Atrocities Act i.e. Section 3(1)

(R), the learned trial Court has allowed the

discharge application and same was not

challenged by any party. Therefore, so far as

Section 3(1)(R) of the Atrocities Act is

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

concerned, the same is not required to be

considered at this stage. For the charge of

unlawful assembly first Sections 141 and 149

of the Indian Penal Code are required to be

looked into, which are reproduced

hereinbelow:

"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--

1. To overawe by criminal force, or show of criminal force, 1the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

2. To resist the execution of any law, or of any legal process; or

3. To commit any mischief or criminal trespass, or other offence; or

4. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

5. By means of criminal force, or show Explanation.-- An

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.-- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

16. The submissions of the learned advocate

Mr.Nair is that there was no any overt act on

the part of the respondentaccused is not to

be considered at this stage and it cannot be

stated as general preposition of law that

unless an overt act is proven against the

person, who is alleged to be a member of

unlawful assembly, it cannot be held that he

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

is a member of assembly. What is really

required to be seen is that member of

unlawful assembly should have understood that

assembly was unlawful and was likely to

commit any act, which fall within the purview

of Section 141 of the Indian Penal Code. The

core of the offence is word "object" which

means the purpose or design and in order to

make it common, it should be shared by all.

When certain accused persons were gathered of

an assembly, the unlawful object of which

develop on the spot of occurrence then also

they can continue as its member and they are

also liable for the act of the one of the

member.

17. In the FIR as well as the statement, the

allegation against the present applicant is

that he was present there. He had assaulted

to the complainant and other witnesses along

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

with the other accused and instigated the

other accused by saying "maaro...maaro...".

Considering this, this Court finds that

prima facie case is made out against the

present applicant for framing the charges.

18. Another charge of the Atrocities Act

under Section 3(2)(Va) for which the

prosecution has claimed to try to the accused

which is reproduced hereinbelow:

"3.Punishments for offences of atrocities. *** (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 such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine."

The scheduled which is provided under the Act

NEUTRAL CITATION

R/CR.A/2557/2023 JUDGMENT DATED: 30/01/2024

undefined

wherein the Sections 141, 142, 144, 147 and

323 of the Indian Penal Code are covered.

Therefore, this Court comes to the conclusion

that prima facie case is made out by the

prosecution to frame the charge.

19. In view thereof, this Court is of the

view that the material collected during the

investigation suggests that offence alleged