Gujarat High Court
Ajaybhai Kanubhai Joshi vs State Of Gujarat on 21 April, 2025
NEUTRAL CITATION
R/SCR.A/177/2020 ORDER DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 177 of 2020
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AJAYBHAI KANUBHAI JOSHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARESH N JOSHI(1871) for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/04/2025
ORAL ORDER
1. By way of this petition, under Section 482 of the Code of
Criminal Procedure, the petitioner has prayed for quashment of
the FIR being C.R. No. 11203068200003 registered with Vanthali
Police Station against the petitioner for the offences punishable
under Sections 294(B) and 506(2), 114 of the IPC and u/s 3(2)(5)
of The Scheduled Castes And The Scheduled Tribes (Prevention
Of Atrocities) Act, 1989.
2. Heard learned advocates for the respective parties.
3. Learned Advocate for the petitioner taking to the FIR would
submit that general allegations are made against the petitioner
and no such ingredients of the alleged offence is attracted if the
FIR is read at its face value. In regards to the allegations made
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under the Atrocities Act, learned advocate for the petitioner
would submit that FIR does not disclose the fact that any
derogatory words was used by the petitioner to lower the caste of
the first informant. Learned advocate for the petitioner would
submit that if the FIR is read as it is no such ingredients of the
alleged offence is found prima facie to have been attracted qua
the petitioner and therefore by making above submissions, he
would submit to allow this petition and to quash the FIR. So far
as offences under the provisions of the IPC is concerned, learned
advocate for the petitioner would submit that from bare reading
of the FIR, it does not indicate that the complainant was
administered any threats to cause the death or grievous hurt to
him. It is also not stated that, the complainant was in fact
intentionally insulted and was provoked with the knowledge
that, it would be likely that, such provocation will cause him to
break the peace or to commit another offence. Thus, in absence
of such ingredients, no offence u/s. 506(2) of I.P.C. is made out
against the petitioner.
4. Learned advocate for the first informant would taking this
Court through the statement made in the FIR submitted that
offence alleged to have been made out against the petitioner as
the petitioner have used derogatory words to lower the caste of
the complainant and therefore prima-facie material is made out
which constitute the offence as alleged in the FIR. He would
therefore submit to dismiss the present petition.
5. Learned APP while adopting the submissions made by
learned advocate for the first informant would submit to dismiss
the present petition.
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6. Having heard the learned advocates appearing for the
respective parties and examining the FIR as it is, it appears that
allegations are made to the effect that petitioner with the
connivance of each other intercepted the first informant by
keeping grudge over the earlier dispute and gave filthy abuses
lowering his caste, as also gave kick and fist blows and in
furtherance thereof org. accused no.2 caught hold of the
complainant and org. accused no.1 caused injuries with knife to
the first informant on his left hand and chest and also adduced
threat of killing his cousin.
7. 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 the Atrocities Act is alleged;
however none of the averments made in the FIR attracts the said
provision. What could be noticed that at no where it is stated in
the FIR that accused belongs to general caste and first informant
belongs to schedule caste and by using such derogatory remarks
he had insulted his caste in public place. Even, which kind of
the words are used to derogate the caste of the complainant is
not coming out from the FIR. Baring allegations nothing is
coming from the FIR to satisfy the ingredient of the offence
alleged against the petitioner. 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. So far as offences under the provisions of the IPC is
concerned, from bare reading of the FIR, it does not indicate that
the complainant was administered any threats to cause the
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death or grievous hurt to him. The complainant was in fact
intentionally insulted and was provoked with the knowledge
that, it would be likely that, such provocation will cause him to
break the peace or to commit another offence. Thus, in absence
of such ingredients, no offence u/s. 506(2) of I.P.C. is made out
against the petitioner. As far as offence u/s 294(b) of the IPC is
concerned, to attract the said offence, the prosecution has to
prove that the accused uttered obscene words in public place.
However, plain reading of the FIR demonstrates no such words
are uttered by the accused for the complainant in public place
and therefore, essential ingredients of section 294(b) is missing
and hence, no case is made out against the petitioner qua
offence punishable u/s 294(b) of the IPC.
8. 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
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referred to Swaran Singh (supra) and reiterated the legal
position as under:
"14. Another key ingredient of the provision is insult
or 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
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(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 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."
9. Thus, the ingredients alleged under the Atrocities Act and
IPC are missing from the FIR. None of the allegations made in
the FIR would attract the offence under the Atrocities Act and
IPC.
10. Recently, the Hon'ble Apex Court in case of Hutu Ansari @
Futu Ansari Vs. State of Jharkhand rendered in SLP No.6763 of
2023, held as under:-
"7. Admittedly all the prosecution witnesses are related
and the specific case of the accused was that due to
the enmity, on account of the land dispute, the
accused were framed under the SC & ST Act alleging
house trespass. Section 3 of the Act charged against
the accused is not attracted for reason of the
allegations of derogatory terms being used against the
complainants, if at all true, was not in a public place
nor in the presence of any member of the public.
However, we see from the order of the Trial Court that
the specific allegation levelled was of wrongful
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occupation or cultivation in any land owned by or in
the possession, allotted to or notified by any competent
authority to be allotted to a member of a Scheduled
Caste and Scheduled Tribe as coming out in sub-
clause (f) of Section 3(1) of the SC & ST Act. We cannot
but notice that there is also an allegation of derogatory
terms having been used in the presence of villagers, in
the complaint filed before the Judicial Magistrate,
which brings in clause (s) of Section 3(1) dealing with
abusing any member of a Scheduled Caste and
Scheduled Tribe by caste name in a place within public
view and clause (r) relating to intentional insult or
intimidation with intent to humiliate a member of SC &
ST in any place within public view.
11. We cannot but find that there are gross
inconsistencies insofar as the complaint and the oral
evidence led by way of deposition before the Court. The
place of occurrence was stated to be the house, in the
complaint, while all the witnesses spoke of the alleged
incident having occurred in the field, which was the
disputed land. In any event, there is no scope for
finding either clause (r) or (s) of Section 3(1) of the SC
& ST Act since PW-1 has categorically stated that there
was no member of the public present at the time the
incident occurred. Insofar as the allegation under
clause (f) of Section 3(1) there is nothing to indicate
that the complainant and her family were forcefully
evicted from the disputed land or that the accused
occupied it illegally after delivery was effected on
25.04.2005. As far as the house trespass is concerned,
the oral evidence does not support it. On the above
reasoning we find absolutely no reason to sustain the
conviction as entered into by the Magistrate's Court
confirmed by the High Court. We set aside the order of
the Magistrate as confirmed by the High Court and
acquit the appellants herein."
11. 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] .
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"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.
(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.
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(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."
11.1. In view of above, allowing FIR further into trial would be
abuse of process of law. Criminal proceedings started is found to
be initiated by giving color of criminality. The petition deserves
consideration.
12. For the foregoing reasons, the petition is allowed. FIR being
C.R. No. 11203068200003 registered with Vanthali Police
Station as well as consequential proceedings initiated in
pursuance thereof qua present petitioner is hereby quashed and
set aside.
13. The request of Learned APP to recover the amount of
compensation granted to the complainant, if any, is acceded to.
Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
