Ishwarbhai Jorabhai Rabari vs State Of Gujarat
2025 Latest Caselaw 5588 Guj

Gujarat High Court

Ishwarbhai Jorabhai Rabari vs State Of Gujarat on 9 April, 2025

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                          R/CR.MA/24002/2017                                              ORDER DATED: 09/04/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                        FIR/ORDER) NO. 24002 of 2017

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                                           ISHWARBHAI JORABHAI RABARI & ANR.
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                     Appearance:
                     MR TEJAS M BAROT SENIOR COUNSEL (2964) for the Applicant(s) No. 1,2
                     NOTICE SERVED TO CONCERNED POLICE STATION for the
                     Respondent(s) No. 2
                     MR SOHAM JOSHI APP for the Respondent(s) No. 1
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                        CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 09/04/2025

                                                            ORAL ORDER

Seeking quashment of the FIR being II- CR. No. 32 of 2017 registered with Bhildi Police Station for offences punishable u/ss. 323, 504, 506(2) and 114 of IPC and section 3(1)(г), Atrocities Act; 3(2)(va)), Atrocities Act; 3(2)(va) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, learned Senior Counsel Mr.Barot assisted by Ms.Choksi, learned advocate for the petitioners would submit that FIR is false and vexatious. Learned Senior Counsel Mr.Barot for the petitioners would submit that owner of the disputed property was in need of money and he had obtained certain amount from Ramjibhai and in turn executed sale-deed as security. Later on, wife of said Ishwarbhai filed SCS No.30 of 2017 seeking cancellation of the sale-deed by raising various contentions. Learned Senior Counsel Mr.Barot for the petitioners would submit that before the competent Civil Court the PanchKyas was carried out by the Court Commissioner on 15/07/2017 recording possession of the agriculture land. Learned Senior Counsel Mr.Barot for the petitioners would submit that timing of the FIR is required to be seen which was

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given on 24/06/2017 and according to the FIR even derogatory words were used by the petitioners against the complainant to lower him he being a member of schedule caste and schedule tribe. Learned Senior Counsel Mr.Barot for the petitioners would submit that copy of the Rojkam produced at Annexure - H demonstrates the absence of the complainant from the spot of incident through out from the date of issuance of notice till execution of panchkyas and therefore under such circumstances it is not possible that complainant was present at the agriculture filed and some ruckus took place which resulted into the FIR. Learned Senior Counsel Mr.Barot for the petitioners would submit that since the documentary evidence on record marked the absence of the complainant, it demonstrates that FIR is false and vexatious and deserves to be quashed and set aside as none of the ingredients as alleged are satisfied to constitute the offence.

2. Though served, none appears for the respondent no.2.

2.1 Learned APP for the respondent - State would submit that if the FIR is taken at face value, prima facie the case is made out against the petitioners. He would submit that since the investigation at the initial stage, this Court may not exercise the discretion in favour of the petitioners as the powers under Section 482 of the Code is require to be exercised sparingly. In his submissions, he would submit to dismiss the present petition.

3. Having heard the learned Counsel appearing for the respective parties, what could be seen from record that wife of the petitioner has filed the afore-stated suit against petitioner Ramjibhai and other for cancellation of the sale-deed and claimed that she is in possession of the agriculture field where Notice was issued by the civil court. To be noted

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that the Civil Court carried out Panchnama on 15/07/2017 and at that time neither complainant nor Ramajibhai through whom complainant is claiming to be in possession of the agriculture filed remained present. Further to be noted that complainant was absent all through out the proceedings and even prior to the alleged date of incident on two occasions i.e. on 24/06/2017 and 30/06/2017 the notices were issued but on both the occasions the complainant remained absent. Incidentally, FIR is filed on 24/06/2017 alleging that petitioner has given kick and fist belows and provoked the breach of peace and lower the complainant on he being member of the schedule caste and schedule tribe. Noticeably, the third party in whose vicinity the offence is alleged to have been committed is also missing and thus the basic ingredients of the Atrocities Act i.e. within public view is also missing. Moreover, the Court Commissioner noted the absence of Ramjibhai Danabhai so also the third party on the very same day on the agriculture filed which would certify that FIR is false and vexatious.

4. Prima facie, reading of the FIR does not disclose any offence as alleged under the Atrocities Act in the FIR. It could be noticed that offence under under Section 3(1)(r) and 3(2)(5)(a) of the Atrocities Act is alleged; however none of the averments made in the FIR attracts the said provision. Baring allegations nothing is coming from the FIR to satisfy the ingredient of the offence alleged against the petitioners. To be noted that presence of third party in whose presence if such derogatory remarks are made is also missing in the present case and therefore also necessary ingredients to satisfy the offence under the Atrocities Act are missing.

5. At the first blush, it appears that FIR in question is filed with oblique motive and on false narration. In the circumstances, the FIR needs to be read closely and between the line. Complainant who did not

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remain present in civil proceedings claims that on particular day he was given kick and fist blow and was uttered derogatory remarks on his caste.

6. At this juncture, I may refer to the relevant observations made in Mahmood Ali vs State Of U.P. [(2023) 15 SCC 488] by the Hon'ble Apex Court in following terms.

"12. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines.

13. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The

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Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-

"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

7. In Karuppudayar vs State Rep. by the Deputy Superintendent of Police, Lalgudi Trichy and Others [2025 SCC OnLine SC 215], the Apex Court examined the terms public view and has held in paragraph 10 to 11 as under:

"9. A perusal of Section 3(1)(r) of the SC-ST Act would reveal that for constituting an offence thereunder, it has to be established that the accused intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Similarly, for constituting an offence under Section 3(1)(s) of the SC-ST Act, it will be necessary that the accused abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view.

10. The term "any place within public view" initially came up for consideration before this Court in the case of Swaran Singh v. State through Standing Counsel2. This Court in the case of Hitesh Verma v. State of Uttarakhand3 referred to Swaran Singh (supra) and reiterated the legal position as under:

"14. Another key ingredient of the provision is insult or

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intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527]. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed. : This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view."]. The Court held as under : (SCC pp. 443-44, para 28) "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."

(emphasis in original)"

11. It could thus be seen that, to be a place 'within public view', the place should be open where the members of the public can witness or

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hear the utterance made by the accused to the victim. If the alleged offence takes place within the four corners of the wall where members of the public are not present, then it cannot be said that it has taken place at a place within public view."

8. Thus, the ingredients alleged under the Atrocities Act are missing from the FIR. None of the allegations made in the FIR would attract the offence under the Atrocities Act. Essentially, offence under the IPC are also missing.

9. At this juncture, I may refer to the relevant observations made by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335].

"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 Article 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.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(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 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."

10. In view of above, allowing FIR further into trial would be abuse of process of law. The FIR found to be filed as counter blast to civil proceedings started by the wish of the petitioner. Thus, the petition deserves consideration.

11. In the result, the petition is partly allowed. FIR being II- CR. No.32 of 2017 registered with Bhildi Police Station as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the petitioners herein. Rule is made absolute.

(J. C. DOSHI,J) sompura