Gujarat High Court
Ketanbhai Krishnakant Nayak vs State Of Gujarat on 28 February, 2025
NEUTRAL CITATION
R/CR.MA/11551/2020 ORDER DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11551 of 2020
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KETANBHAI KRISHNAKANT NAYAK
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR TANMAY B KARIA(6833) for the Applicant(s) No. 1
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/02/2025
ORAL ORDER
1. This petition under section 482 of Cr.P.C. is filed to quash
and set aside FIR being C.R.No.I-11217020200118 of 2020
registered with Patan City 'B' Division Police Station, Patan for
the offence under sections 294(b) of IPC read with section 3(1)(r),
3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act.
2. Heard learned advocates for the parties.
3. Facts of the case are as under :-
3.1 It is stated in the FIR filed by the respondent no.2 that
husband of complainant had obtained Home loan and personal
loan from Axis Bank, Patan two years ago. As there was delay in
making payment of installments of loan, agents of Axix Bank
used to come for recovery of installment. On 29.02.2020, when
complainant was at home, at that time, present applicant had
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gone to collect installment of loan and it is alleged that he
abused complainant by utterign offending words regarding caste
and asked here as not to obtain loan if they are not capable to
pay instalment and thereafter threatend complainant to pay
installment. With these allegations and FIR came to be filed.
4. Learned advocate for the petitioners submitted that on
plain reading of FIR, it does not disclose any offence alleged to
have been committed by the petitioners under Atrocities Act. It is
submitted that perusing the allegations levelled in the FIR
against the petitioners, commission of offence under provisions
of Atrocities Act is not made out and therefore, it is submitted
that complaint is required to be quashed and set aside.
5. Learned APP submitted that considering the facts of the
case, offence under Atrocities Act is made out and therefore,
submitted to dismiss the petitions.
6. Perusing the FIR, what could be noticed that incident
which has taken place, cannot be termed as any place within
public view. Recently, Hon'ble Apex Court in the case of
Karuppudayar v/s. State Rep. by the Deputy Superintendent of
Police, Lalgudi Trichy [2025 SCC OnLine SC 215] examined term
"any place within public view" and reviewing earlier judgment in
the case of [Swaran Singh v. State, (2008) 8 SCC 435], in para
10 and 11 held as under :-
"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 Counsel. This
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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 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 :
"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
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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.
7. The applicant is agent and went to complainant for
recovery of amount of loan. The complaint is filed only to take
vengeance. Criminal proceedings cannot be allowed to settle
personal score. If we take averments alleged in the FIR on its
face value, it reveals that there is allegation that applicant used
some filthy language against the complainant. This Court is of
the view that incident has not taken at place which can be
termed as public view. The offence under section Atrocities Act,
more particularly, sections 3(1)(r) and 3(1)(s) of the Atrocities Act
is not attracted.
8. This Court may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan Lal [1992
Suppl (1) SCC 335], and the law laid down therein has been
consistently followed. In para 102, the Hon'ble Apex Court held
as under :-
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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
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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."
9. No doubt, that the power under Section 482 of the CrPC is
required to be exercised sparingly and with circumspection and
that too in the rarest of rare cases. It is equally settled that the
court will not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the allegations
made in the FIR or the complaint. However, the court would be
justified in exercising its discretion if the case falls under any of
the clauses carved out by this Court in Paragraph 102 in the
case of Bhajan Lal (supra).
10. In view of above, since this Court has observed that the
allegations made in the FIR, even if they are taken at their face
value and accepted in their entirety, do not prima facie
constitute an offence under SC-ST Act. The case would fall
under the first category of para 102 in the case of Bhajan Lal
(supra).
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11. In view of above, allowing FIR further into trial would be
abuse of process of law. The petition deserves consideration.
12. For the foregoing reasons, the petition is allowed. FIR being
C.R.No.I-11217020200118 of 2020 registered with Patan City 'B'
Division Police Station, Patan 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)
SATISH
