Gujarat High Court
Pravinbhai Mavjibhai Kapdi vs State Of Gujarat on 20 February, 2025
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R/CR.MA/14272/2019 ORDER DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14272 of 2019
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PRAVINBHAI MAVJIBHAI KAPDI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DARSHAN M VARANDANI(7357) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR. KARAN U VYAS(6992) 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 : 20/02/2025
ORAL ORDER
By way of this petition under Section 482 of the Code of Criminal
Procedure, the petitioner seeks to quash the FIR being I-C. R. No 1 of
2019 registered with Mundra Marine Police Station, Kachchh for the
offences punishable u/s 406,408, 420, 465, 471, 506(2) r/w 114 and
Section 3(1)(r), 3(2)(s), 3(2)(va) of The Scheduled Castes And The
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard learned advocate appearing for the respective parties.
3. Learned advocate for the petitioner Mr.Varandani limited to his
argument qua the petitioner would submit that FIR is lodged after one
month from the date of the alleged incident. He would submit that it was
typed and addressed to the Police Station which is indicative of the fact
that FIR is an afterthought to the issue. Taking to the FIR, learned
advocate for the petitioner would submit that general allegations are made
against the petitioner and no such ingredients of the alleged offence is
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attracted if the FIR is read at its face value. In regards to the allegations
made 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.
3.1 Learned advocate for the petitioner Mr.Varandani 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.
4. Learned Advocate for the first informant Mr.Vyas would submit
that contents of the FIR and the allegations made therein can be tested
during the course of trial. He would submit that insofar as the other
accused are concerned, they are charge-sheeted. He would further submit
that all these accused are the part of same family and only husband has
preferred this petition to quash the FIR. He would submit that conspiracy
has been hatched by the petitioners to siphon of the money of the first
informant, so also the land and therefore in such circumstances he would
submit to dismiss the petition.
5. Learned APP Mr.Joshi for the State while adopting the argument of
first informant would submit that FSL report does not indicate forgery of
the signature or creating of forged document and therefore he would
submit to pass appropriate order in the facts and circumstances of the
case.
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 org. accused no.1 is the owner of land bearing survey
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no.1518/2/paiki situated at Mouje; Gundala, Tal. Mundra, which was
given to the Bharat Petroleum on lease for 30 years and rent thereof was
paid to said org. accused no.1. The said land though was given to first
informant but could not transfer as first informant was not agriculturist. It
is also alleged that son of accused no.1 was serving as Manager in the
petrol pump and though several times in regards to the alleged transaction
the first informant intended to talk with the accused, they showed
reluctance and ultimately prior to one month they met at one place where
the accused insulted the caste of complainant and asked to forget the
money as the first informant will not do anything.
7. Prima facie, reading of the FIR does not disclose any offence as
alleged in the FIR. It could be noticed that offence under Section 506(2)
of the IPC is alleged; however none of the averments made in the FIR
attracts the said provision whereby criminal intimidation is prima facie
proved. What further could be noticed that at no where it is stated that
accused knowing fully well that 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.
8. Learned Advocate for the petitioner Mr.Varandani in support of his
argument refers to the decision in case of Shajan Skaria vs. State of
Kerala & Anr., [2024 SCC OnLine SC 2249]. Relevant observations are
made in paragraph 58 to 59 which reads thus:
"58. We say so for the reason that all insults or intimidations to a
member of the Scheduled Caste or Scheduled Tribe will not amount to
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an offence under the Act, 1989 unless such insult or intimidation is on
the ground that the victim belongs to Scheduled Caste or Scheduled
Tribe. There is nothing in the transcript of the uploaded video to
indicate even prime facie that those allegations were made by the
appellant only on account of the fact that the complainant belongs to a
Scheduled Caste. From the nature of the allegations made by the
appellant, it appears that he is at inimical terms with the complainant.
His intention may be to malign or defame him but not on the ground or
for the reason that the complainant belongs to a Scheduled Caste.
59. In the aforesaid context, we may refer to and rely upon a three-
Judge Bench decision of this Court in Hitesh Verma (supra). The
relevant observations are reproduced below:
"13. The offence under Section 3(1)(r) of the Act would
indicate the ingredient of intentional insult and intimidation
with an intent to humiliate a member of a Scheduled Caste
or a Scheduled Tribe. All insults or intimidations to a
person will not be an offence under the Act unless such
insult or intimidation is on account of victim belonging to
Scheduled Caste or Scheduled Tribe. The object of the Act
is to improve the socio-economic conditions of the
Scheduled Castes and the 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. The assertion of title over the
land by either of the parties is not due to either the
indignities, humiliations or harassment. Every citizen has a
right to avail their remedies in accordance with law.
Therefore, if the appellant or his family members have
invoked jurisdiction of the civil court, or that Respondent 2
has invoked the jurisdiction of the civil court, then the
parties are availing their remedies in accordance with the
procedure established by law. Such action is not for the
reason that Respondent 2 is a member of Scheduled Caste.
xxx xxx xxx
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17. In another judgment reported as Khuman Singh v. State
of M.P. [Khuman Singh v. State of M.P., (2020) 18 SCC
763 : 2019 SCC OnLine SC 1104] , this Court held that in a
case for applicability of Section 3(2)(v) of the Act, the fact
that the deceased belonged to Scheduled Caste would not
be enough to inflict enhanced punishment. This Court held
that there was nothing to suggest that the offence was
committed by the appellant only because the deceased
belonged to Scheduled Caste. The Court held as under:
"15. As held by the Supreme Court, the offence must
be such so as to attract the offence under Section
3(2)(v) of the Act. The offence must have been
committed against the person on the ground that
such person is a member of Scheduled Caste and
Scheduled Tribe. In the present case, the fact that the
deceased was belonging to "Khangar" Scheduled
Caste is not disputed. There is no evidence to show
that the offence was committed only on the ground
that the victim was a member of the Scheduled Caste
and therefore, the conviction of the appellant-
accused under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act is not sustainable."
18. Therefore, offence under the Act is not established
merely on the fact that the informant is a member of
Scheduled Caste unless there is an intention to humiliate a
member of Scheduled Caste or Scheduled Tribe for the
reason that the victim belongs to such caste. In the present
case, the parties are litigating over possession of the land.
The allegation of hurling of abuses is against a person who
claims title over the property. If such person happens to be
a Scheduled Caste, the offence under Section 3(1)(r) of the
Act is not made out." (Emphasis supplied)"
9. 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:
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"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
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
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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)"
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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."
10. 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. Insofar as the offence under Sections
406,408, 420, 465, 471 of the IPC is concerned, it does not indicate any
breach of trust or forgery or created any forged documents. Likewise, the
allegations made under Section 506(2) of the IPC is concerned, no such
criminal intimidation causing threat to life or property is made out from
the FIR. Thus, if the FIR is read as it is, the same is nothing but the abuse
of process of law.
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].
"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
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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.
(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
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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."
12. 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.
13. For the foregoing reasons, the petition is allowed. FIR being I-C.
R. No 1 of 2019 registered with Mundra Marine Police Station, Kachchh
as well as consequential proceedings initiated in pursuance thereof qua
present petitioner is quashed and set aside. Rule is made absolute to the
aforesaid extent.
(J. C. DOSHI,J)
sompura
