Kanabhai Bhikhabhai Mokariya(Koli) vs State Of Gujarat
2024 Latest Caselaw 8560 Guj

Gujarat High Court

Kanabhai Bhikhabhai Mokariya(Koli) vs State Of Gujarat on 10 September, 2024

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                            R/CR.MA/18601/2019                                   ORDER DATED: 10/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                        FIR/ORDER) NO. 18601 of 2019

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                                           KANABHAI BHIKHABHAI MOKARIYA(KOLI)
                                                          Versus
                                                 STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
                       MR AJAY L PANDAV(3660) for the Respondent(s) No. 2
                       MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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                            CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                          Date : 10/09/2024

                                                             ORAL ORDER

1. By way of preferring present application, the applicant has invoked extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973, inter alia, praying for quashing of the FIR being C.R.No. II-83 of 2019, registered with Talala Police Station, Gir-Somnath for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and under Sections 3(2)(v)(a) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Atrocities Act).

2. Heard learned advocate Mr. Chintan Popat for the applicant, learned APP Mr. Soaham Joshi for respondent No.1 - State and learned advocate Mr. Ajay L. Pandav for respondent No.2 - original complainant.

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3. At the outset, learned advocate Mr. Popat does not press this application for the offence punishable under the provisions of the Indian Penal Code and therefore this application is confined only for the offence of Atrocities Act.

4. Learned advocate Mr. Chintan Popat submits that as per the case of the prosecution, at about 6:00 a.m. on 01.09.2019, when the complainant was standing at Umrethi Gam Patiya, at that time, accused persons came there and accused No.1 told the complainant as to why he is harassing his daughter viz. Manisha and after saying that accused No.1 also abused the complainant and thereafter beaten him with a stick, whereas accused No.3 beaten the complainant with a belt and accused Nos. 2 and 4 caught hold the complainant and inflicted kick and fist blows and also abused him and thereby the accused persons though fully knowing well that the complainant is belonging to Scheduled Caste, they have committed breach of the Notification and thereby in connivance with each other, all the accused persons have committed the offence as alleged in the FIR.

5. Learned advocate Mr. Popat further submits that as soon as the applicant came to know about registration of the FIR in question, immediately he approached this Court by way of preferring present application and after considering the allegations levelled against the applicant in the FIR as well as

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averments and grounds made in the memo of the application, the Coordinate Bench of this Court has protected the applicant. The investigating officer was directed to carry out the investigation but no coercive action should be taken against the applicant.

6. Learned advocate Mr. Popat further submits that if the allegations levelled in the FIR against the applicants are to be read in its entirety, in that event, the basic and requisite ingredients of offences of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act are not at all attracted and/or satisfied. The allegations levelled by the complainant are extremely superficial, vague and nonspecific in nature and there exists no prima facie, much less any conclusive evidence on the basis of which FIR in question can be found maintainable against the applicant. In absence of any sufficient grounds for prosecuting the applicant, the FIR in question is required to be quashed. He further submits that Sections 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act stipulate that there must be an intention to insult or intimidate with the intent to humiliate a member of Scheduled Caste or Scheduled Tribe and/or abuse any member of Scheduled Caste or Scheduled Tribe by caste name in any place within public view. Learned advocate Mr. Popat further submits that thus the 'intention' is an essential

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ingredient for the offence of 'insult', 'intimidation' and 'humiliation' of a member of the Scheduled Caste or Scheduled Tribe in any place within 'public view'. He further submits that if this Hon'ble Court would go through the accusations levelled against the applicant in the FIR in question, in that event, it would be found out that the present applicant has not uttered and/or hurled any abusive words against the complainant with an intent to intentionally insults or intimidates with intent to humiliate the complainant at any place within public view and said act was also not seen and/or witnessed by any independent and neutral witness.

7. Learned advocate Mr. Popat submits that considering the above stated factual aspects of the matter, the FIR in question registered against the applicant for the offence of Atrocities Act is nothing but sheer abuse of process of Court and hence the same is required to be quashed qua the offence of Atrocities Act. Learned advocate Mr. Popat further submits that the ratio laid down by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp. (1) SCC 335 is squarely applicable to the facts of the present case. Therefore, the impugned FIR qua the offence of Atrocities Act, which is nothing but sheer abuse of process of the Court, is required to be quashed qua applicant.

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8. Learned advocate Mr. Popat further submits that in the case of co-accused viz. Ravibhai Kishorbhai Vaghela, the Coordinate Bench of this Court has quashed the FIR in question qua the offence punishable under the provisions of the Atrocities Act vide order dated 20.09.2023 passed in Criminal Misc. Application No.19659 of 2019. Learned advocate Mr. Popat, therefore, urges that considering the above stated factual aspects, the FIR in question qua the offence punishable under the provisions of the Atrocities Act may be quashed qua the applicant.

9. Learned advocate Mr. Pandav, who appears on behalf of respondent No.2 - original complainant, has objected present application with vehemence and submitted that name as well as specific role of the present applicant accused are clearly spelt out from the body of the FIR. He further submits that present applicant and another accused have caught hold the complainant and inflicted kick and fist blows to the complainant and applicant also used abusive language and said fact is clearly found out from the FIR. He further submits that to prove the accusations and allegations levelled against the applicant, evidence is required to be led and without leading the evidence, the prosecution would not be in a position to prove the charges of accusations and allegations levelled against the applicant and therefore this is a premature stage and applicant cannot be held innocent without facing the trail. Hence, prosecution

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instituted against the applicant is not required to be quashed as prima facie involvement of the applicant accused is clearly found out from the contents of the FIR. He, therefore, urges that present application may be dismissed.

10. Learned APP Mr. Soaham Joshi has objected present application with vehemence and submitted that he is adopting the arguments canvassed by learned advocate Mr. Pandav for the respondent No.2. He, therefore, submits that present application being devoid of merit is required to be rejected as name as well as specific role of the present applicant accused are clearly found out from the body of the FIR.

11. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it is found out that at about 6:00 a.m. on 01.09.2019, when the complainant was standing at Umrethi Gam Patiya, at that time, accused persons came there and accused No.1 told the complainant as to why he is harassing his daughter viz. Manisha and after saying that accused No.1 also abused the complainant and thereafter beaten him with a stick, whereas accused No.3 beaten the complainant with a belt and accused Nos. 2 and 4 caught hold the complainant and inflicted kick and fist blows and also abused him and thereby the accused persons though fully knowing well that the complainant is

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belonging to Scheduled Caste, all the accused have committed breach of the Notification and thereby in connivance with each other, all the accused persons have committed the offence as alleged in the FIR.

12. Before dwelling into the issue involved in the matter, I would like to refer to the decision of the Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana and Another, reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:

"20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (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.

xxx xxx xxx

23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.

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(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

13. Insofar as invocation of provisions of Atrocity Act is concerned, in this context, I would like to refer and rely upon the observations made by the Hon'ble Apex Court in the case of Ramesh Chandra Vaishya vs. State of Uttar Pradesh & Anr., reported in 2023 Live Law (SC) 469, which are as follows;

"14. We have heard the parties and perused the judgment and order of the High Court together with the materials on record.

15. Section 3(1)(x) of the SC/ST Act, prior to its amendment notified vide S.O. 152(E) dated 18th January, 2016, read as follows:

"3. Punishments for offences of atrocities.

-- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --

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(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;

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16. The first F.I.R., registered at the instance of the complainant, is silent about the place of occurrence and who, being a member of the public, was present when the appellant is alleged to have hurled caste related abuses at the complainant. However, on a reading of the second F.I.R. registered at the behest of the appellant, it appears that the incident took place at the house of the appellant.

17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge-sheet dated 21st January, 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three witnesses are none other than the complainant, his wife and their son. Neither the first F.I.R. nor the charge-sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any, made by the appellant were not "in any place within public view", the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present.

18. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to bring it within the ambit of section 3(1)(x) of the SC/ST Act. We

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have noted from the first F.I.R. as well as the charge-sheet that the same makes no reference to the utterances of the appellant during the course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Since section 18 of the SC/ST Act bars invocation of the court's jurisdiction under section 438, Cr.PC and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the F.I.R. (which is not required to be an encyclopaedia of all facts and events), but at least in the charge-sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge sheet makes out a case of an offence under the SC/ST Act having been committed for forming a proper opinion in the conspectus of the situation before it, prior to taking cognisance of the offence. Even for the limited test that has to be applied in a case of the present nature, the

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charge-sheet dated 21st January, 2016 does not make out any case of an offence having been committed by the appellant under section 3(1)(x) warranting him to stand a trial.

19. Paragraphs 15 and 16 of the decision in Hitesh Verma (supra) cited by Ms. Shukla can be pressed in aid to support the view that we have taken above."

14. If the allegations levelled against the applicant in the impugned FIR are to be examined in the context of the aforesaid decision, in that event, in the opinion of this Court, the basic and requisite ingredients to attract the provisions of the Atrocity Act are not made out. The FIR in question is silent about the casteist slurs by any of the accused persons with an intent to humiliate the complainant, who is a member of the Scheduled Caste or a Scheduled Tribe in any place within public view. Thus, in the opinion of this Court, the basic and requisite ingredients to attract the provisions of the Atrocity Act are missing in the impugned FIR. Hence, the ratio of the aforesaid judgment is squarely applicable to the case on hand.

15. Therefore, in view of the ratio enunciated by the Hon'ble Apex Court in the aforesaid decision, I am of the opinion that the basic and requisite ingredients for invoking the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act are not at all satisfied insofar as the applicant is concerned. Moreover, in the case of co-accused,

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the Coordinate Bench of this Court quashed the FIR in question qua the offence of Atrocity Act.

16. In view of the aforesaid observations made by the Hon'ble Apex Court as well as Coordinate Bench of this Court, I am of the opinion that the FIR in question does not make out any case of an offence having been committed by the applicant under the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

17. In the result, the application is partly allowed. The First Information Report being C.R.No. II-83 of 2019, registered with Talala Police Station, Gir-Somnath qua the offence punishable under Section 3(2)(v)(a) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is hereby quashed qua the applicant. However, the trial qua the offences under the provisions of the Indian Penal Code and under the provisions of the Gujarat Police Act shall be continued against the applicant in accordance with law.

Direct service is permitted.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI