Gujarat High Court
Mohanbhai Naranbhai Dayatar ... vs State Of Gujarat on 18 September, 2024
NEUTRAL CITATION
R/CR.MA/8428/2022 ORDER DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8428 of 2022
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MOHANBHAI NARANBHAI DAYATAR (MOHITBHAI NARANBHAI
DAYATAR)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANISH J PATEL(2131) for the Applicant(s) No. 1
MR MANOJ SHRIMALI(2331) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/09/2024
ORAL ORDER
1. Heard Mr. Manish J. Patel, learned counsel for the applicant, Mr.
H.K.Patel, learned APP for the respondent State and Mr. Manoj
Shrimali, learned counsel for respondent No.2.
2. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the
applicant has prayed to quash and set aside the FIR being
C.R.No.11203030220260 of 2022 registered with Keshod Police
Station, Junagadh, for the offence under Sections 3(1)(r) and 3(1)(u)
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 and other proceedings arising
therefrom.
3. At the instance of respondent No.2, FIR came to be filed against
the applicant alleging that, earlier in the year 2020 - 2022, due to
illegal excavation of sand from village pond, dispute arose between
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the applicant and complainant and his community persons, and
complaint was filed against the applicant. It is further alleged that, by
keeping that grudge, the applicant told the complainant and other
members of scheduled caste to remove their shops and thereby, the
applicant issued notice for removal of encroachments mentioning
word "Harijan Vas". In this regard, FIR came to be filed.
4. Learned counsel for the applicant has submitted that, the
complaint is nothing, but an abuse of process of law and the applicant
has been falsely implicated in the offence. He has further submitted
that, the applicant is Sarpanch of Shergadh village and due to enmity
between two group, complaint is filed. Even bare perusal of the
complaint, it reveals that no offence under the Atrocities Act is made
out. As the applicant has rendered his services in his official capacity
as a Sarpanch and under the instructions of Taluka Development
Officer to remove encroachment, notice came to be issued, in which,
the applicant has not uttered a single word or made any castiest
remarks relating to the caste of the complainant. Merely mentioning
the area/location name as "Harijan vas" does not amount to insult the
complainant. He has further submitted that, to remove the
encroachments made on government land, the applicant being
Sarpanch of village has issued show-cause notice for removal of
encroachments on 22.04.2022, while, in the complaint, reference
being made of earlier complaint filed in the year 2020. Therefore, the
offence under the Atrocities Act are not attracted.
4.2 Mr. Patel has relied on the judgments of the Hon'ble Supreme
Court in case of Hitesh Verma Vs. State of Uttarakhand, reported in
2020 (10) SCC 710 and Ramesh Chandra Vaishya Vs. The State of
Uttar Pradesh and Anr., reported in 2023 LiveLaw (SC) 469 and
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contended that, the applicant has not uttered any abusive word/s and
therefore, the provisions of Atrocities Act are not attracted.
In view of the above submissions, learned counsel for the
applicant prays to allow present application.
5. Learned counsel for respondent No.2 has opposed present
application and submitted that, the applicant is having chequered
history and he used to indulge himself in such act. Earlier in 2020,
same nature of complaint was filed. Total 8 complaints have been filed
against the applicant. Even the applicant has used the said word is
admitted and undisputed fact and in this regard, Taluka Development
Officer has also made a report to the concerned authority. The
applicant is habitual to indulge in such activity and therefore, the
applicant with an intent to insult the caste of the complainant,
mentioned such word in a notice issued for removal of
encroachments. In view of the above, he has submitted that, present
application may not be entertained.
6. Learned APP has opposed the application and by adopting the
submissions made by respondent No.2 contended that, present
applicant has committed an offence as alleged in the complaint and he
has past antecedent. In this view of the matter, present application
does not deserve any consideration.
7. Having heard learned counsel for the respective parties and
perusing the material placed on record, it appears that at the instance
of respondent No.2, complaint is filed, wherein, reference is made for
the incident took place in the year 2020, which was registered at
Keshod Police Station, alleging that, by keeping grudge of the
aforesaid facts, the applicant has determined to demolish the shops
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situated at Harijan Vas and therefore, by keeping the grudge, the
applicant has issued notice to the complainant and other schedule
caste members, wherein, the word "Harijan Vas" is mentioned showing
the location of the shop/s and thereby, insulted the caste of the
complainant. In this regard, complaint came to be filed. Except this, no
allegations are levelled in the complaint.
8. Perusing the notice issued on 22.04.2022 by the Panchayat for
removal of encroachments, wherein, surname of complainant "Vala" is
mentioned, but in the notice, the word "Harijan Vas" is mentioned
because the shop is situated near village pond in Harijan vas, mouje
Shergadh, Taluka Keshod as the panchayat intend to construct
compound wall of Ambedkar Bhavan under 15 th Finance Commission
and directed the complainant to produce documentary evidence
within 7 days. Except this, no any averment is made in the notice.
Merely mentioning the word "Harijan Vas" as location/area in which
shop/s are situated, does not amount to attract the offence of the
Atrocities Act.
9. The Statement of Objects and Reasons accompanying the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill,
1989 is extracted hereinbelow:
"Statement of Objects and Reasons.
1. Despite various measures to improve the socio-economic conditions of the
Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are
denied number of civil rights. They are subjected to various offences,
indignities, humiliations and harassment. They have, in several brutal
incidents, been deprived of their life and property. Serious crimes are
committed against them for various historical, social and economic reasons.
2. Because of the awareness created amongst the Scheduled Castes and the
Scheduled Tribes through spread of education, etc. they are trying to assert
their rights and this is not being taken very kindly by the others. When they
assert their rights and resist practices of untouchability against them or
demand statutory minimum wages or refuse to do any bonded and forced
labour, the vested interests try to cow them down and terrorise them. When
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the Scheduled Castes and the Scheduled Tribes try to preserve their self-
respect or honour of their women, they become irritants for the dominant and
the mighty. Occupation and cultivation of even the Government allotted land
by the Scheduled Castes and the Scheduled Tribes is resented and more often
these people become victims of attacks by the vested interests. Of late, there
has been an increase in the disturbing trend of commission of certain
atrocities like making the Scheduled Castes persons eat inedible substances
like human excreta and attacks on and mass killings of helpless Scheduled
Castes and the Scheduled Tribes and rape of women belonging to the
Scheduled Castes and the Scheduled Tribes. Under the circumstances, the
existing laws like the Protection of Civil Rights Act, 1955 and the normal
provisions of the Penal Code, 1860 have been found to be inadequate to
check these crimes. A special legislation to check and deter crimes against
them committed by non-Scheduled Castes and non-Scheduled Tribes has,
therefore, become necessary.
3. The term 'atrocity' has not been defined so far. It is considered necessary
that not only the term 'atrocity' should be defined but stringent measures
should be introduced to provide for higher punishments for committing such
atrocities. It is also proposed to enjoining on the States and the Union
territories to take specific preventive and punitive measures to protect the
Scheduled Castes and the Scheduled Tribes from being victimised and where
atrocities are committed, to provide adequate relief and assistance to·
rehabilitate them."
10. The Prevention of Atrocities Act, 1989 was enacted with the
object to prevent the commission of offences and atrocities against
the members of the Scheduled Caste and Scheduled Tribes. Section
3(1)(r) of the Act, 1989 underscores the crucial aspect of intentional
insult and intimidation with the specific intent to humiliate a member
of the Scheduled Caste or Scheduled Tribe. The primary aim of the Act,
1989 is to ameliorate the socioeconomic conditions of the community
as they have been historically deprived of numerous civil rights.
Therefore, an offence under the Act, 1989 is established when a
member of these vulnerable sections of society is subjected to
humiliation and harassment.
11. It is evident that the purpose of the Act, 1989 is to prevent the
commission of offences of atrocities against the members of the
Scheduled Castes and Scheduled Tribes, to provide for establishment
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of special courts for the trial of such offences and to make provisions
for the relief and rehabilitation of the victims of such offences.
12. This Court shall first proceed to examine whether the necessary
ingredients to constitute the offence under Section 3(1)(r) of the Act,
1989 are prima face disclosed on a plain reading of the FIR. Section
3(1)(r) reads thus:
"Section 3 of the Act 1989: Punishments for offences of atrocities.--
[(1) Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe,-- XXX XXX XXX (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;"
The basic ingredients to constitute the offence under Section 3(1)(r) of
the Act, 1989 are:
a. Accused person must not be a member of the Scheduled Caste or
Scheduled Tribe;
b. Accused must intentionally insult or intimidate a member of a
Scheduled Caste or Scheduled Tribe;
c. Accused must do so with the intent to humiliate such a person; and
d. Accused must do so at any place within public view."
13. Learned counsel for the applicant has rightly relied on Hitesh
Verma Vs. State of Uttarakhand, reported in 2020 (10) SCC 710. It is
true that, Section 3(1)(r) of the Atrocity Act is not established material
on the fact that complainant is member of a scheduled caste or a
Scheduled Tribe, unless there is an intention to humiliate such a
member for the reason that he belongs to such community. Hence, in
the case on hand, merely issuing notice for removal of encroachment
mentioning word "Harijan Vas" where the shops are situated, would
not attract the provisions of the Act. In this regard, Hon'ble Supreme
Court in case of Shajan Skaria Vs. The State of Kerala & Anr,
reported in 024 INCS 625, meaning of the expression "intentional
insult" explained in Section 3(1)(r) of the Act as under:-
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"The words "with intent to humiliate" as they appear in the text of Section
3(1)(r) of the Act, 1989 are inextricably linked to the caste identity of the
person who is subjected to intentional insult or intimidation. Not every
intentional insult or intimidation of a member of a SC/ST community will
result into a feeling of caste-based humiliation. It is only in those cases
where the intentional insult or intimidation takes place either due to the
prevailing practice of untouchability or to reinforce the historically
entrenched ideas like the superiority of the "upper castes" over the "lower
castes/untouchables", the notions of 'purity' and 'pollution', etc. that it could
be said to be an insult or intimidation of the type envisaged by the Act,
1989."
Considering the above ratio, offence under the Atrocities Act
are not attracted.
14. Even in the case of Hitesh Verma (supra), Hon'ble Supreme
Court has clearly observed that, all insults or intimidates to a person
will not be an offence under the Act unless such insult or intimidation
is on account of victim belonging to SC/ST. The object of the Act is to
improve the socio-economic conditions of the scheduled castes and
scheduled Tribes as they are denied number of civil rights. Thus, an
offence under the Act would be made out when a member of the
vulnerable section of the society is subjected to indignities,
humiliations and harassment.
15. Further, learned counsel for respondent No.2 has
contended that, as the applicant is having past antecedents,
present application does not deserve any consideration. But it is
needless to say that earlier complaint was registered due to
illegal excavation of sand from village pond. However, merely
having past antecedents, is not a ground for not exercising power
under Section 482 of the Cr.P.C. Therefore, prima facie it appears
that the alleged offence are not attracted and as discussed
above, the applicant has not committed the offence as alleged.
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16. Considering the facts and circumstances of the case as well as in
view of the law laid down in above cited decisions, this Court is of
opinion that, merely using the word 'Harijan Vas' would not amount or
rather to insult the caste of the complainant. Further, the said word is
not mentioned with a view to insult the caste of the complainant as he
belongs to 'Vala' caste. Even the said notice issued by applicant on
behalf of the Panchayat is not issued publicly as it is between the
Sarpanch and encroachers. Further, the said act is not in public view.
17. In the result, the application is allowed. The impugned
complaint being FIR being C.R.No.11203030220260 of 2022
registered with Keshod Police Station, Junagadh as well as all
consequential proceedings initiated in pursuance thereof are hereby
quashed and set aside qua the applicant herein. Rule is made absolute.
Direct service is permitted.
(HASMUKH D. SUTHAR,J)
SUCHIT
