Gujarat High Court
Geetaben Subhash Tiwari vs State Of Gujarat on 11 September, 2024
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R/CR.MA/20385/2019 ORDER DATED: 11/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20385 of 2019
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GEETABEN SUBHASH TIWARI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NASIR SAIYED(6145) for the Applicant(s) No. 1,2
MRS MUMTAZ SAIYED(5187) for the Applicant(s) No. 1,2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
REFUSED SERVED (N)(10) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/09/2024
ORAL ORDER
1. The respondent No.2, although served with the notice
issued by this Court, has chosen not to remain present either
in person or through an advocate and oppose this application.
2. By this application under section 482 of the Code of
Criminal Procedure,1973, the applicants seek to invoke the
inherent powers of this Court praying for quashing of the first
information report being C.R. No.I-75 of 2019 registered before
the Vapi Town Police Station, Valsad for the offence punishable
under sections 143, 147, 149, 323, 504, 506(2) and 120(b) of
the IPC.
3. The crux of the FIR is that the accused named in the FIR,
keeping a grudge of a previous altercation took place between
the complainant and the friend of the accused, namely, Rahul
Ghosh, in connivance with each other, with a mala fide
intention hatched a criminal conspiracy, and as a part of the
said conspiracy, made an assault upon the complainant by
giving him fist and kick blows, and when friend of the
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complainant, namely, Vijay Ganpatbhai Patel intervened, the
accused also beaten him with the stone in his hand and caused
injuries on the rights side of his head as also hurled abuses to
them and threatened the complainant of dire consequences,
and thereby committed the offence.
4. Learned advocate Mr. Nasir Saiyed appearing for the
applicants submits that the present FIR is nothing but a sheer
abuse of process of law. He submits that the applicant No.1 is
and old aged lady and the applicant No.2 is a housewife
residing at Ahmedabad since 2008 at her matrimonial home
and her husband is a doctor. Learned advocate Mr. Saiyed
further submits that the impugned FIR has been lodged as a
counterblast to the FIR lodged by one of the accused persons
named in the impugned FIR against the respondent No.2 just
with a view to exert pressure upon him to withdraw that
complaint. He also submits that looking to the contents of the
FIR, it appears only general and vague allegations have been
made against the applicants-accused. Learned advocate Mr.
Saiyed further submits that the applicant No.2 is residing at
Ahmedabad and during the period when the alleged incident
took place, she went to Vapi to celebrate the festival of
Dushera. There is no specific allegation made against the
applicants. He submits that on the date of the incident, as
there was a festival of Dushera, all the members of the Society
were celebrating the festival, and at that time, the complainant
reached there, due to which, some quarrel took place between
the complainant and the son of the applicant No.1, pursuant to
which, cross-complaint were filed, and with a view to exert
pressure upon the son of the applicant No.1, she has been
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implicated in the present offence along with her daughter. The
applicants-accused are not directly or indirectly connected with
the crime. Learned advocate Mr. Saiyed also submits that
even if the entire case of the first informant is accepted
as true, none of the ingredients to constitute the offence as
alleged are spelt out and, therefore, the continuation of the
criminal proceedings against the applicants-accused would be
nothing, but an abuse of the process of law.
5. On the other hand, this application has been vehemently
opposed by Mr. Jay Mehta, the learned Additional Public
Prosecutor appearing for the respondent-State of Gujarat.
Learned APP Mr. Mehta would submit that specific allegations
have been levelled against the applicants-accused in the FIR.
He further submits that after the registration of the FIR, the
applicants-accused immediately approached this Court by way
of filing the present application, and a Coordinate Bench of this
Court, while issuing notice, directed to proceed with the
investigation, however, directed not to file charge-sheet
against the accused and, therefore, uptill now no charge-sheet
has been filed. Learned APP also submits that during the
course of investigation, statements of certain witnesses were
recorded, and the recitals of such statements clearly shows the
involvement of the applicants-accused in the commission of
the crime. Under the circumstances, learned APP Mr. Mehta
prays that, therefore, at this stage, the First Information
Report should not be quashed and the trial should be
permitted to proceed further. Hence, the present application
deserved to be rejected.
6. Having heard the learned counsel appearing for the
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parties and having considered the materials on record, the
only question that falls for my consideration is whether I should
quash the complaint.
7. I am conscious of the restrictions to be exercised by the
Court of Law while considering the petition under Section 482
of the Code of Criminal Procedure. However, in the matter on
hand, I find that it is a clear cut case of abuse of process of
law. The records prima facie reveal that there was a minor
quarrel took place between the son of the applicant No.1 a and
the complainant for which cross-complaint were registered by
both the sides. The applicants-accused herein are the lady
accused, one an old aged and another residing altogether at a
different place with her in-laws having good reputation in the
Society. It seems that the respondent No.2, with a view to
settle the score with the son of the applicant No.1, has
implicated his mother and sister in the present offence so that
he can get the FIR withdrawn registered against him by the
son of the applicant No.1. The allegations levelled in the FIR
appears to be vague and general in nature. Now it has been
nine years since the registration of the impugned FIR, and
uptill now, charge-sheet has also not been filed. The
respondent No.2, although served with the notice, has also not
bothered to appear before his Court and oppose the present
application and, therefore, now no fruitful purpose would be
served to ask the applicants-accused to through the ordeal of
trial.
8. A Coordinate Bench of this Court, in the case of
Dineshbhai @ Mukeshbhai Jitabhai Patel v. State of Gujarat &
another, vide judgment and order dated 05.04.2016 passed in
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Special Criminal Application No.4481 of 2014, observed and
held as under:
"14. The second question that falls for my consideration
is whether the offence punishable under Sections 504
and 506(2) of the I.P.C. could be said to have been made
out.
15. Section 504 of the I.P.C. contemplates intentionally
insulting a person and thereby provoking such person
insulted to breach the peace or intentionally insulting a
person knowing it to be likely that the person insulted
may be provoked so as to cause a breach of the public
peace or to commit any other offence. Mere abuse may
not come within the purview of the section. But, the
words of abuse in a particular case might amount to an
intentional insult provoking the person insulted to
commit a breach of the public peace or to commit any
other offence. If abusive language is used intentionally
and is of such a nature as would in the ordinary course of
events lead the person insulted to break the peace or to
commit an offence under the law, the case is not taken
away from the purview of the section merely because the
insulted person did not actually break the peace or
commit any offence having exercised self control or
having been subjected to abject terror by the offender. In
judging whether particular abusive language is attracted
by Section 504, I.P.C., 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. Mere
abuse, discourtesy, rudeness or insolence, may not
amount to an intentional insult within the meaning of
Section 504, I.P.C. 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
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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 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, I.P.C. If he merely uses abusive language
against the complainant. In King Emperor v. Chunnibhai
Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the
Bombay High Court pointed out that:
To constitute an offence under Section 504, I.P.C. it is
sufficient if the insult is of a kind calculated to cause the
other party to lose his temper and say or do something
violent. Public peace can be broken by angry words as
well as deeds
In Guranditta v. Emperror, AIR 1930 Lah 344 (2): (32 Cri.
LJ 62), it was observed that in dealing with a case under
Section 504, I.P.C. the court should try to find out what in
the ordinary circumstances would have been the effect of
abusive language used. Pichai Pillai v. Ramaswamy
Ayyangar (1941) 42 Cri. LJ 48) (Mad.) relied on by the
learned Magistrate is no authority for any proposition
that no offence is committed under Section 504, I.P.C. by
the accused if he uses abusive language against the
complainant. In that case there was a discussion between
the accused Bill Collector and the complainant in regard
to the amount due by the complainant towards tax
collectable by the Bill Collector. In the course of that
discussion, the Bill Collector shouted against the
complainant saying shameless fellow, I will shoe you. The
details of the discussion and the exact circumstances
leading to the shouting by the accused are not available
from the brief judgement reported. It is also not known as
to where exactly the occurrence took place in that case.
(vide Karumanchi Veerangaiah vs. Katta Mark & Ors.,
1976 Cr. LJ 1690)
16 In the case of Ronak Ashok Kedia v. State of Gujarat
[Criminal Miscellaneous Application No.4145 of 2012
decided on 19th November, 2014], I have explained as to
what would constitute the offence punishable under
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Section 506(2) of the I.P.C. I may quote the observations
made in paras 10, 11 and 12 as under:
"10. The above takes me to consider whether any case is
made out so far as the offence under Section 506(2) of
the IPC is concerned.
Section 506 reads as under:
"S. 506. 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;
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. The essential ingredients The offence of criminal
intimidation has been defined under Section 503 I.P.C
and Section 506 I.P.C provides punishment for it.
Section 503 reads as under:
"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 threats, commits criminal intimidation.
Explanation: A threat to injure the reputation of any
deceased person in whom the persons threatened is
interested, is within this section.
An offence under Section 503 has following essentials:
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1. Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that
person is interested.
2. The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not
legally bound to do as the means of avoiding the
execution of such threat; or
(iii) to cause that person to omit to do any act which that
person is legally entitled to do as the means of avoiding
the execution of such threat.
12. A bare perusal of Section 506 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 an accused had an intention to cause
alarm to the complainant. Mere threats given by the
accused not with an intention to cause alarm to the
complainant, but with a view to deterring him from
interfering with the work of construction of the wall,
which was undertaken by the accusedapplicant, would
not constitute an offence of criminal intimidation. In the
entire FIR, there is no whisper of any allegation that the
threats which were administered actually caused any
alarm to the first informant and he felt actually
threatened."
9. The Court cannot permit a prosecution to go on if the
case falls in one of the categories as illustratively enumerated
by the Supreme Court in the case of State of Haryana vs.
Bhajan Lal, reported in (1992) Supp (1) SCC 335. Judicial
process is a solemn proceeding which cannot be allowed to be
converted into an instrument of oppression or harassment.
When there are materials to indicate that a criminal
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proceeding is manifestly attended with mala fide and is
maliciously instituted with an ulterior motive, the high court
shall not hesitate in exercise of its jurisdiction under Section
482 of the Code of Criminal Procedure to quash the
proceeding. Under category seven (7) as enumerated in
Bhajan Lal (supra), it is held thus, "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". There cannot
be any dispute that the inherent power given to the High Court
under Section 482 of the Code of Criminal Procedure is with a
purpose and object of advancement of justice. Similar
observations are also made by the Apex Court in the case of
Vineet Kumar and Others vs. The State of Uttar Pradesh
and Another, reported in (2017) 13 SCC 369. The facts and
circumstances of this case clearly attract category No.7 as
quoted supra.
10. In the result, this application succeeds and is allowed.
The first information report being C.R. No.I-75 of 2019
registered before the Vapi Town Police Station, Valsad is
hereby ordered to be quashed qua the applicants. All
consequential proceedings arising from the same also stands
terminated. Rule is made absolute.
Direct service is permitted.
(DIVYESH A. JOSHI,J)
VAHID
