Gujarat High Court
Bhupatbhai Jaswatbhai Bodar vs State Of Gujarat on 29 January, 2025
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R/CR.MA/7970/2015 JUDGMENT DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7970 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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BHUPATBHAI JASWATBHAI BODAR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1,2,3
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PRAKASH G PANDYA(3041) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/01/2025
ORAL JUDGMENT
1. By way of filing present application, the
applicants seek to invoke inherent jurisdiction of
this Court under Section 482 of the Code of Criminal
Procedure, 1973, for quashing and setting aside
Criminal Inquiry No.335 of 2012 instituted by
respondent No.2 - original complainant against them
before the Court of 14th Additional Judicial
Magistrate, Rajkot for the offence punishable under
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Sections 405 and 406(2) of the Indian Penal Code and
Section 3(1)(v)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
and order dated 27.02.2015 passed by the learned
Trial Court, whereby summons came to be issued to the
applicants under Section 204 of Cr.P.C.
2. Heard learned advocate Mr. Hardik H. Dave for
the applicants, learned APP Mr. Soaham Joshi for
respondent - State and learned advocate Mr. Prakash
G. Pandya for respondent No.2 - original complainant.
3. Learned advocate Mr. Dave submits that
respondent No.2 is the original complainant and he
has filed complaint against total 6 persons. He
further submits that though the complaint is filed
against total 6 persons, the learned Magistrate
passed the impugned order whereby summons came to be
issued against the present applicants only. He
further submits that based upon registration of the
complaint, the Court concerned has passed order to
seek report from the investigating officer under
Section 202 of Cr.P.C. The investigating officer
concerned has carried out detailed investigation and
submitted report dated 21.04.2014 before the Court
concerned. Along with the report, the investigating
officer has submitted the statements of the witnesses
and other material collected by the IO concerned
before the learned Court concerned. He has drawn
attention of this Court to a statement of one Mr.
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Sureshbhai Ramjibhai Parmar and submitted that the
said witness has signed as a witness in the complaint
of the complainant. In his statement, the said
witness has stated that the complainant was the owner
of one room admeasuring 63 sq. mtrs. constructed over
plot No.6 of one Gautam Park Co. Operative Housing
Society (Suchit Society) constructed on Survey No.196
paiki of Mavdi village. The said room of the
complainant was demolished by somebody. Learned
advocate Mr. Dave, therefore, submits that thus who
has demolished the said property has not come on
surface. The said witness has also stated in his
statement that when he had gone along with the
complainant at the hotel of the applicants, at that
time, the incident of threatening the complainant by
the applicants was not happened. Moreover, the said
witness has also stated in his statement that he does
not know who has demolished the room of the
complainant. Thus, the investigating officer has
submitted report dated 21/22.04.2014 before the
learned Court concerned wherein it is specifically
stated that no evidence against the applicants is
available on record which suggests that they
demolished the property of the complainant and
insulted and/or intimidated with an intent to
humiliate the complainant, who is a member of SC/ST,
by his caste name in any place within public view.
Thus, from the report of the investigating officer in
coupled with the statement of the aforesaid witness,
it is found out that no offence as alleged by the
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complainant is made out against the applicants.
4. Learned advocate Mr. Dave further submits that
after going through the contents of the aforesaid
report as well as other materials supplied along with
the report, the Court concerned directed the
Assistant Police Commissioner to carry out
investigation insofar as the offence of the
Atrocities Act is concerned and submit his report
within a period of 30 days. Therefore, once again on
19.09.2019, another report is submitted by the
Assistant Police Commissioner, SCST Cell, Rajkot
City. He has produced the copy of the said report and
submitted that considering the report submitted by
the officer concerned, the learned Court concerned
has passed order of issuance of process against the
applicants under Section 204 of Cr.P.C. He further
submits that if this Court would make cursory glance
upon the report, in that event, it would be found out
that the concerned officer has jumped to the
conclusion that involvement of the present applicants
accused in commission of crime of is clearly spelt
out from the papers of investigation. He has referred
to the statements of the witnesses recorded by the
said officer during the course of investigation and
submitted that if this Court would make cursory
glance upon the statements of the witnesses, in that
event, it would be found out that though some of the
witnesses have admitted that the property of the
complainant is demolished with the help of JCB /
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Bulldozer, the name of the applicants have not been
disclosed by any of the witnesses and they have
specifically stated that somebody has demolished the
property of the complainant. Moreover, so far as the
offence of Atrocities Act is concerned, neither the
investigating officer in his report nor any of the
witnesses through their statements have supported the
version and story put forward by the complainant that
applicants have committed the offence of Atrocities
Act. The report submitted by the concerned Police
Officer is silent about the commission of offence
under the Atrocities Act by the applicants. Even
though, without application of mind, the learned
Trial Court has issued process for commission of
offence under the Atrocities Act against the
applicants. He further submitted that on bare perusal
of the statements of the witnesses, it is found out
that not a single witness has stated that present
applicants accused are directly connected with the
commission of crime for criminal breach of trust also
and at the time of demolition of the said property
applicants accused were found available at the place
of occurrence and no evidence is available on record
having regard to the work of demolition of property
being made under the instructions of the applicants.
Learned advocate Mr. Dave has put reliance upon the
decision of the Hon'ble Apex Court in the case of
Shantaben Bhurabhai Bhuriya v. Anand Athabhai
Chaudhari & Ors and submitted that as per the ratio
laid down by the Hon'ble Apex Court, at the most, the
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learned Magistrate Court can take cognizance upon the
facts of the compliant of the complainant but it
cannot proceed further. However, in the instant case
the learned Court concerned has not only taken
cognizance upon the facts of the complaint but also
proceeded further by issuing process against the
applicants under Section 204 Cr.P.C. Hence, the same
view adopted by the learned Judge concerned is
against the mandate and provisions of the statute.
Thus, considering the aforesaid factual aspects, the
impugned order dated 27.02.2015 passed by the learned
Court concerned and the proceedings of Criminal
Inquiry No.335 of 2012 may be quashed and set aside.
5. Learned advocate Mr. Pandya for the respondent
No.2 - original complainant has objected present
application with vehemence. However, he has candidly
submitted that during the pendency of the present
proceedings, the complainant is passed away. He has
further submitted that it is the specific case of the
complainant that he is the owner of the property in
question wherein he along with his mother used to
reside. Few years before the date of incident, he was
shifted at another place. It is also the case of the
complainant that at relevant point of time, somebody
has entered into the premises and bulldozed the said
constructed property. He submits that there was
ongoing disputes between the parties and complainant
has already sought permanent injunction against the
accused persons. Thus, considering the above stated
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factual aspects and based upon the report submitted
by the investigating officer concerned, the order is
passed, which is just, fair and based upon the sound
principle of law and therefore no interference is
required to be made by this Court at this juncture.
6. Learned APP Mr. Soaham Joshi appearing for the
respondent - State has adopted the arguments
canvassed by learned advocate Mr. Pandya for the
respondent No.2 - original complainant. He further
submitted that in fact initially report was submitted
by the investigating officer and prima facie learned
Court concerned was of the opinion that as per the
said report when the offence under the provisions of
the Atrocities Act is said to have been committed but
who has committed the said offence has not come on
record, the learned Court concerned has passed an
order and directed the Assistant Police Commissioner
to investigate into the offence and submit his report
within a period of 30 days. Thereafter, the Assistant
Police Commissioner, SCST Cell, Rajkot City has
submitted his report dated 19.09.2014 along with
statements of the witnesses and other materials
before the Court concerned and based upon such
materials, the Court concerned has passed the
impugned order. Thus, it can be said that the said
view adopted by the learned Court concerned is just,
fair and based upon the sound principle of law, which
is not required to be interfered with by this Court
at this juncture. He further submits that the view
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adopted by the learned Court concerned cannot be said
to be an error of law and/or error of facts.
Therefore, the application filed by the applicants
prima facie seems to be merit-less and requires to be
rejected at the threshold.
7. Having heard the learned advocates appearing for
the parties and having gone through the materials
placed on record, it is found out that respondent
No.2 is the original complainant and he has filed
complaint against total 6 persons. Pursuant to the
said complaint, the learned Court has passed order
seeking report from the investigating officer under
Section 202 of Cr.P.C. The investigating officer
concerned has carried out detailed investigation and
submitted report dated 21.04.2014 before the learned
Court. Along with the report, the investigating
officer has submitted the statements of the witnesses
and other material collected by the investigating
officer. The investigating officer has recorded
statement of one Mr. Sureshbhai Ramjibhai Parmar, who
has signed as a witness in the complaint of the
complainant. In his statement, the said witness has
stated that the complainant was the owner of one room
admeasuring 63 sq. mtrs. constructed over plot No.6
of one Gautam Park Co. Operative Housing Society
(Suchit Society) constructed on Survey No.196 paiki
of Mavdi village. The said room of the complainant
was demolished by somebody. The said witness has not
stated that the applicants have demolished the said
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property. The said witness has also stated in his
statement that when he had gone along with the
complainant at the hotel of the applicants, at that
time, the incident of threatening the complainant by
the applicants was not happened. Moreover, the said
witness has also stated in his statement that he does
not know who has demolished the room of the
complainant. Thus, the investigating officer has
submitted report dated 21/22.04.2014 before the
learned Court concerned wherein it is specifically
stated that no evidence against the applicants is
available on record which suggests that they
demolished the property of the complainant and
insulted and/or intimidated with an intent to
humiliate the complainant, who is a member of SCST,
by his caste name in any place within public view.
Thus, from the report of the investigating officer in
coupled with the statement of the aforesaid witness,
it is found out that no offence as alleged by the
complainant is made out against the applicants.
8. It is found out from the record that after going
through the contents of the said report as well as
other materials supplied along with the report, the
Court concerned directed the Assistant Police
Commissioner to carry out investigation insofar as
the offence of the Atrocities Act is concerned and
submit his report within a period of 30 days.
Therefore, once again on 19.09.2019, another report
is submitted by the Assistant Police Commissioner,
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SCST Cell, Rajkot City. Considering the said report,
the learned Court has passed order of issuance of
process against the applicants under Section 204 of
Cr.P.C. I have also considered the statements of the
witnesses recorded by the concerned police officer
during the course of investigation and it is found
out that though some of the witnesses have admitted
that the property of the complainant is demolished
with the help of JCB / Bulldozer, the name of the
applicants have not been disclosed by any of the
witnesses and they have specifically stated that
somebody has demolished the property of the
complainant. Moreover, so far as the offence of
Atrocities Act is concerned, neither the
investigating officer in his report nor any of the
witnesses through their statements have supported the
version and story put forward by the complainant that
applicants have committed the offence of Atrocities
Act. The report submitted by the concerned Police
Officer is silent regarding the commission of offence
under the Atrocities Act by the applicants. Thus,
prima facie, it is found out that the learned Trial
Court has not appreciated the report as well as other
materials produced by the investigating officer in
its true perspective and committed an error while
issuing the process against the applicants for the
commission of offence. Moreover, from bare perusal of
the statements of the witnesses, it is also found out
that not a single witness has stated that present
applicants accused are directly connected with the
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commission of crime for criminal breach of trust also
and at the time of demolition of the said property
applicants accused were available at the place of
occurrence and not a single piece of supportive
evidence is available on record which suggests that
the work of demolition of property was made under the
instructions of the applicants.
9. It is also pertinent to note that the respondent
No.2 - original complainant passed away during the
pendency of the present proceedings. Learned advocate
Mr. Dave has put reliance upon the decision of the
Hon'ble Supreme Court in the case of Shantaben
Bhurabhai Bhuriya (supra) and submitted that the
learned Magistrate concerned though can take
cognizance of the complaint under the SCST Act, is
not entitled to proceed further with the said
complaint and it is the duty of the concerned
Magistrate to commit the case before the Special
Court concerned for the purpose of proceeding further
with the matter. However, in the instant case, the
learned Magistrate has proceeded further by issuing
process against the applicants. It is also required
to be noted that the issue before the Hon'ble Apex
Court in the case of Shantaben Bhurabhai Bhuriya
(supra) was as to whether the entire criminal
proceedings can be held to be vitiated merely because
the learned Magistrate concerned has taken cognizance
of the offence and thereafter the case has been
committed to Special Court established for the
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purpose of providing speedy trial in the matter of
SCST Ac. In the said case the cognizance was taken by
the learned Magistrate Court and not by the Special
Court established under the provisions of the Statute
and thereafter the learned Magistrate has committed
the case for its trial to the Special Court and
therefore the matter went up to the Hon'ble Apex
Court to decide the said issue.
10. Learned advocate Mr. Dave is right in submitting
that the learned Magistrate concerned has exceeded
her jurisdiction in proceeding further with the
matter by issuing process against the applicants for
the offence punishable under the SCST Act. Hence,
considering the aforesaid overall aspects of the
matter, I am of the opinion that as per the settled
proposition of law, when the chances of an ultimate
conviction of the applicants after full-fledged trial
are bleak, in that event, this Court has to exercise
its inherent jurisdiction under Section 482 of the
Code.
11. In view of the aforesaid observations, the
application is allowed. The impugned order dated
27.02.2015 passed by learned 14th Additional Judicial
Magistrate, Rajkot for issuance of process against
the applicants for the offence punishable under
Sections 405, 406(2) of the Indian Penal Code and
Section 3(1)(v)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
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is hereby quashed and set aside. Moreover, the
proceedings of Criminal Inquiry No.335 of 2012
instituted by respondent No.2 - original complainant
against the applicants pending before the Court of
14th Additional Judicial Magistrate, Rajkot are also
quashed and set aside. Rule is made absolute.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
