Gujarat High Court
Nileshbhai Babubhai Vaghasiya vs State Of Gujarat on 5 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21405 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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NILESHBHAI BABUBHAI VAGHASIYA & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,2
MR.DARSHAN A. DAVE(7921) for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/05/2025
ORAL JUDGMENT
1. This petition under section 482 of Cr.P.C. to quash and set
aside FIR being C.R.No.I-101 of 2017 registered with Rajpipla
Police Station, Narmada for the offence under sections 306 and
114 of IPC and under section 3(2)(5) of the of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act and all
the consequential proceedings arising therefrom qua the present
petitioners.
2. Brief facts of the case are as under :-
2.1 It is alleged in the complaint that complainant and his son
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were working in the Company known as Birla Century, where
the applicant no.1 is working as Supervisor and the applicant
no.2 is the Head of the Department. It is alleged that the
applicants have forced the son of the complainant to give
resignation since he was worker of the Company and because of
which, the son of the complainant consumed poisonous
substance on 10.07.2017 and after about 19 days of
hospitalization, ultimately he passed away on 29.07.2017 and
accordingly the present complaint is filed after about a period of
one month i.e. on 19.08.2017. Hence, present petition.
3. Learned advocate Mr.Kapadia for the petitioners mainly
argued that petitioner no.1 and petitioner no.2 are working as
Supervisor and Head of Department in Birla Century since
years together, where 2200 workers are working in the said
company. It is further submitted that complainant and his son
were working in Birla Century. It is further submitted that if
allegations made in the FIR are taken on its face value, it alleges
that the petitioners who were working as Supervisor and Head of
Department have given different work to the son of the
complainant instead of work for which he was selected and was
forced to resign. Learned advocate Mr.Kapadia submitted that
none of the allegations made in the FIR constitute offence of
abatement slated in section 107 of IPC being core to offence
under section 306 of IPC. It is further submitted that apart from
missing necessary ingredients of section 306 of IPC, FIR is filed
belatedly; deceased who consumed poisonous substance on
10.07.2017 remained in hospital for 19 days. FIR is filed on
19.08.2017, there is gross delay in filing FIR. Learned advocate
Mr.Kapadia submitted that since FIR itself is not establishing
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any ingredients of abatement and suicide, it is found to be filed
in wreak in vengeance. It is submitted that if dying declaration
of the deceased is taken on its face value, at the most allegation
that one of the petitioner forced son of the complainant to tender
resignation and since deceased was in tension that he might lose
his job, he consumed poisonous substance / acid. Said facts
though very gloomy and sad, would not attract very ingredient of
section 306 of IPC. Learned advocate for the petitioner submitted
that FIR is completely silent that deceased committed suicide on
the basis of his caste and therefore, offence under section 3(2)(5)
of Atrocities Act is not attracted.
3.1. Making above submissions, it is submitted to allow the
petition.
4. Per contra, learned advocate Mr.Darshan Dave for
respondent no.2 submitted that deceased was under pressure as
he was forced to resign from service and he was in fear of losing
job at the stage when his wife was expecting child. This aspects
indicate that deceased was in trauma because of inaction on the
part of the petitioners. Firstly, he was given different work
instead of work for which he was selected and he was forced to
resign on the ground that he belongs to SC / ST. Therefore, it is
submitted that prima facie offence under section 306 of IPC read
with provisions of section 3(2)(5) of Atrocities Act are made out.
4.1. Upon above submissions, it is submitted to dismiss the
petition.
5. Learned APP adopted the arguments advanced by learned
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advocate Mr.Dave for respondent no.2 and submitted that since
necessary ingredient of section 306 of IPC read with section 3(2)
(5) of Atrocities Act is culled out on bare reading of FIR, the
petition may be dismissed.
6. I have heard learned advocates for the parties and perused
the record. At the outset, let refer relevant portion of FIR, which
reads as under (it is in Gujarati, for better understanding, it is
translated in English) :-
"The facts of the offence is such that the Complainant
belongs to scheduled caste and accused no.1 being of the
upper caste, who was employed as a Supervisor in Birla
Century Company, he caused harassment to son of
complainant namely, Hiteshbhai Karshanbhai Parmar as
shown in the complaint by compelling him to do the work
of putting cone of yarn on machinery of different
department, even though, he had the work to put yarn on
sizing machinery. Further the accused no.2 being the
H.O.D in the same company, who did false promotion
against the work of son of complainant in the company
and accused no.2 pressurized him to tender resignation
from the job. Therefore, the complainant pleaded that
despite his son did not commit any mistake or offence, why
is he asked to resign. The accused replied you belong to
lower caste and you should not crunch in the office as per
habits of your caste and thereby said such insulting words
regarding his caste. The son of complainant got tensed on
the eventualities of loss of his job, what will he do and
what about his reputation and also his wife is pregnant ,
how will he afford the expenses of his wife and child.
Therefore, on account of depression, to end his life he
consumed acid on above mentioned date and time and
died during the treatment. Accordingly, the offence
committed by the accused persons for abetment."
7. Dying declaration of the deceased is recorded, which reads
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as under :-
"I used to work as a Helper in Birla Century Jagdiya
company. At the instance of Nileshbhai, the supervisor of
the company, the Manager namely Mr.Rathod asked me to
resign from the job, thus I consumed acid in depression
due to fear of losing my job."
8. What could be noticed that the petitioners were employees
working as Supervisor and Head of Department in Birla Century
and under them, as many as 2200 employees were working. It is
equally true and disturbing that deceased committed suicide at
the time when his wife was expecting child. It is wretched,
gloomy and sad incident but the question arise whether
sentiments can be allowed over rule of law. Reading of FIR and
dying declaration of deceased, what could be noticed that
deceased committed suicide as he was forced to resign by the
petitioners and not given work for which he was selected.
9. Learned APP could not point out that deceased had never
given resignation.
10. In the case of Netai Dutta v/s. State of West Bengal [(2005)
2 SCC 659], an employee of a Company was transferred from one
place to another and he did not join. Thereafter, he sent a letter
of resignation expressing his grievance against stagnancy in
salary and unpleasant situation and the Company accepted the
resignation. Subsequent thereto, the said employee committed
suicide and suicide note was found alleging in the note that
Netai Dutta and one Paramesh Chatterjee engaged him in
several wrong doing, which was alleged as torture and therefore,
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the brother of the deceased filed complaint against Netai Dutta
and others under Section 306 of IPC. In this background,
Hon'ble Apex Court observed as under :-
"5. There is absolutely no averment in the alleged suicide
note that the present appellant had caused any harm to
him or was in any way responsible for delay in paying
salary to deceased Pranab Kumar Nag. It seems that the
deceased was very much dissatisfied with the working
conditions at the work place. But, it may also be noticed
that the deceased after his transfer in 1999 had never
joined the office at 160 B.L. Saha Road, Kolkata and had
absented himself for a period of two years and that the
suicide took place on 16.2.2001. It cannot be said that the
present appellant had in any way instigated the deceased
to commit suicide or he was responsible for the suicide of
Pranab Kumar Nag. An offence under Section 306 IPC
would stand only if there is an abetment for the
commission of the crime. The parameters of the "abetment"
have been stated in Section 107 of the Indian Penal Code.
Section 107 says that a person abets the doing of a thing,
who instigates any person to do that thing; or engages with
one or more other person or persons in any conspiracy for
the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, or the person
should have intentionally aided any act or illegal omission.
The explanation to Section 107 says that any willful
misrepresentation or willful concealment of a material fact
which he is bound to disclose, may also come within the
contours of "abetment".(Emphasis supplied)
6. In the suicide note, except referring to the name of the
appellant at two places, there is no reference of any act or
incidence whereby the appellant herein is alleged to have
committed any willful act or omission or intentionally
aided or instigated the deceased Pranab Kumar Nag in
committing the act of suicide. There is no case that the
appellant has played any part or any role in any
conspiracy, which ultimately instigated or resulted in the
commission of suicide by deceased Pranab Kumar Nag."
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10.1. The Apex Court thereafter at para 7, inter alia, observed as
under :-
"7. ... The prosecution initiated against the appellant would
only result in sheer harassment to the appellant without
any fruitful result. In our opinion, the learned Single Judge
seriously erred in holding that the first information report
against the appellant disclosed the elements of a
cognizable offence. There was absolutely no ground to
proceed against the appellant herein."
11. The Hon'ble Apex Court after observing above, exercised
the power under Section 482 of Cr. P.C., and quashed the the
criminal proceedings initiated against the appellant.
12. In case of Sanju alias Sanjay Singh Sengar v. State of MP
[(2002) 5 SCC 371], of course at the stage of quashing of the
charge-sheet after referring to the earlier decisions of the Apex
Court in para 12, inter alia, held as under:
12. ... Even if we accept the prosecution story that the
appellant did tell the deceased 'to go and die', that itself
does not constitute the ingredient of 'instigation'. The word
'instigate' denotes incitement or urging to do some drastic
or unadvisable action or to stimulate or incite. Presence of
mens rea, therefore, is the necessary concomitant of
instigation. It is common knowledge that the words uttered
in a quarrel or in a spur of the moment cannot be taken to
be uttered with mens rea. (Emphasis supplied) .
It is in a fit of anger and emotional. Secondly, the alleged
abusive words, said to have been told to the deceased were
on 25th July, 1998 ensued by quarrel. The deceased was
found hanging on 27th July, 1998. Assuming that the
deceased had taken the abusive language seriously, he had
enough time in between to think over and reflect and,
therefore, it cannot be said that the abusive language,
which had been used by the appellant on 25th July, 1998
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drove the deceased to commit suicide. (Emphasis supplied)
.
12.1. The Apex Court, in para 14 has held as under:
"14. A plain reading of the suicide note would clearly show
that the deceased was in great stress and depressed.
(Emphasis supplied)
One plausible reason could be that the deceased was
without any work or avocation and at the same time
indulged in drinking as revealed from the statement of the
wife Smt. Neelam Sengar. He was a frustrated man.
Reading of the suicide note will clearly suggest that such a
note is not a handy work of a man with sound mind and
sense. (Emphasis supplied)
Smt. Neelam Sengar, wife of the deceased, made a
statement under Section 161 Cr.P.C. Before the
Investigation Officer. She stated that the deceased always
indulged in drinking wine and was not doing any work.
She also stated that on 26th July, 1998 her husband came
to them in an inebriated condition and was abusing her
and other members of the family. The prosecution story, if
believed, shows that the quarrel between the deceased and
the appellant had taken place on 25th July, 1998 and if
the deceased came back to the house again on 26th July,
1998, it cannot be said that the suicide by the deceased
was the direct result of the quarrel that had taken pace on
25th July, 1998. (Emphasis supplied).
Viewed from the aforesaid circumstances independently,
we are clearly of the view that the ingredients of 'abetment'
are totally absent in the instant case for an offence
under Section 306 I.P.C. It is in the statement of the wife
that the deceased always remained in a drunkened
condition. It is a common knowledge that excessive
drinking leads one to debauchery. It clearly appeared,
therefore, that the deceased was a victim of his own
conduct unconnected with the quarrel that had ensued on
25th July, 1998 where the appellant is stated to have used
abusive language. Taking the totality of materials on record
and facts and circumstances of the case into
consideration, it will lead to irresistible conclusion that it is
the deceased and he alone, and none else, is responsible
for his death. (Emphasis supplied)."
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13. In the case of M. Mohan v. State represented by the Deputy
Superintendent of Police [(2011) 3 SCC 626], Hon'ble Apex Court
held as under :-
"36. We would like to deal with the concept of "abetment".
Section 306 of the Code deals with "abetment of suicide"
which reads as under:
"306.Abetment of suicide. --If any person commits suicide,
whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a
term which may extend to ten years, and shall also be
liable to fine.
37. The word "suicide" in itself is nowhere defined in the
Penal Code, however, its meaning and import is well
known and requires no explanation. "Sui" means "self" and
"cide" means "killing", thus implying an act of self-killing.
In short, a person committing suicide must commit it by
himself, irrespective of the means employed by him in
achieving his object of killing himself.
38. In our country, while suicide itself is not an offence
considering that the successful offender is beyond the
reach of law, attempt to suicide is an offence under Section
309 IPC.
39. "Abetment of a thing" has been defined under Section
107 of the Code. We deem it appropriate to reproduce
Section 107, which reads as under:
"107.Abetment of a thing.--A person abets the doing of a
thing, who--
First.--Instigates any person to do that thing; or
Secondly.--Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an
act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
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Thirdly.--Intentionally aides, by any act or illegal omission,
the doing of that thing."
Explanation 2 which has been inserted along with Section
107 reads as under:
Explanation 2.--Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitates
the commission thereof, is said to aid the doing of that
act."
40. The learned counsel also placed reliance on yet another
judgment of this Court in Ramesh Kumar v. State of
Chhattisgarh [(2001) 9 SCC 618], in which a three- Judge
Bench of this Court had an occasion to deal with the case
of a similar nature. In a dispute between the husband and
wife, the appellant husband uttered "you are free to do
whatever you wish and go wherever you like". Thereafter,
the wife of the appellant Ramesh Kumar committed
suicide.
41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9
SCC 618 has examined different shades of the meaning of
"instigation". Para 20 reads as under:
"20. Instigation is to goad, urge forward, provoke,
incite or encourage to do 'an act'. To satisfy the
requirement of instigation though it is not necessary
that actual words must be used to that effect or what
constitutes instigation must necessarily and
specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must
be capable of being spelt out. The present one is not
a case where the accused had by his acts or omission
or by a continued course of conduct created such
circumstances that the deceased was left with no
other option except to commit suicide in which case
an instigation may have been inferred. A word
uttered in the fit of anger or emotion without
intending the consequences to actually follow cannot
be said to be instigation.
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In the said case this Court came to the conclusion that
there is no evidence and material available on record
wherefrom an inference of the appellant- accused having
abetted commission of suicide by Seema (the appellant's
wife therein) may necessarily be drawn.
42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73],
this Court has cautioned that (SCC p. 90, para 17) the
Court should be extremely careful in assessing the facts
and circumstances of each case and the evidence adduced
in the trial for the purpose of finding whether the cruelty
meted out to the victim had in fact induced her to end her
life by committing suicide. If it appears to the Court that a
victim committing suicide was hypersensitive to
ordinary petulance, discord and difference in domestic life,
quite common to the society, to which the victim belonged
and such petulance, discord and difference were not
expected to induce a similarly circumstanced individual in
a given society to commit suicide, the conscience of the
Court should not be satisfied for basing a finding that the
accused charged of abetting the offence of suicide should
be found guilty.
43. This Court in Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi) [(2009) 16 SCC 605] had an occasion to deal
with this aspect of abetment. The Court dealt with the
dictionary meaning of the word "instigation" and "goading".
The Court opined that there should be intention to
provoke, incite or encourage the doing of an act by the
latter. Each person's suicidability pattern is different from
the others. Each person has his own idea of self-esteem
and self-respect. Therefore, it is impossible to lay down any
straitjacket formula in dealing with such cases. Each case
has to be decided on the basis of its own facts and
circumstances.
44. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to
instigate or aid in committing suicide, conviction cannot be
sustained.
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45. The intention of the legislature and the ratio of the
cases decided by this Court are clear that in order to
convict a person under Section 306 IPC there has to be a
clear mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to commit
suicide seeing no option and this act must have been
intended to push the deceased into such a position that
he/she committed suicide.
46. In V.P. Shrivastava v. Indian Explosives Ltd. [(2010) 10
SCC 361] this Court has held that when prima facie no
case is made out against the accused, then the High Court
ought to have exercised the jurisdiction under Section
482 CrPC and quashed the complaint.
47. In a recent judgment of this Court in Madan Mohan
Singh v. State of Gujarat [(2010) 8 SCC 628], this Court
quashed the conviction under Section 306 IPC on the
ground that the allegations were irrelevant and baseless
and observed that the High Court was in error in not
quashing the proceedings.
48. In the instant case, what to talk of instances of
instigation, there are even no allegations against
the appellants. There is also no proximate link between the
incident of 14-1-2005 when the deceased was denied
permission to use the Qualis car with the factum of suicide
which had taken place on 18-1-2005. Undoubtedly, the
deceased had died because of hanging. The deceased was
undoubtedly hypersensitive to ordinary petulance, discord
and differences which happen in our day-to-day life. In a
joint family, instances of this kind are not very uncommon.
Human sensitivity of each individual differs from person to
person. Each individual has his own idea of self-esteem
and self-respect. Different people behave differently in the
same situation. It is unfortunate that such an episode of
suicide had taken place in the family. But the question
that remains to be answered is whether the appellants can
be connected with that unfortunate incident in any
manner?
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49. On a careful perusal of the entire material on record
and the law, which has been declared by this Court, we
can safely arrive at the conclusion that the appellants are
not even remotely connected with the offence
under Section 306 IPC. It may be relevant to mention that
criminal proceedings against the husband of the deceased
Anandraj (A-1) and Easwari (A-3) are pending adjudication.
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62. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335] this Court in the backdrop of interpretation of various
relevant provisions of the Code of Criminal
Procedure 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 of the Constitution of India or the inherent powers
under Section 482 CrPC, gave the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of the
court or otherwise to secure the ends of justice. Thus, this
Court made it clear that 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 to 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
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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 non-cognizable
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 Act concerned
(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 Act
concerned, 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."
65. This Court in Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque [(2005) 1 SCC 122] observed thus :
"8. ... It would be an abuse of 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/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."
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68. In the light of the settled legal position, in our
considered opinion, the High Court was not justified in
rejecting the petition filed by the appellants under Section
482 CrPC for quashing the charges under Section 306 IPC
against them. The High Court ought to have quashed the
proceedings so that the appellants who were not remotely
connected with the offence under Section 306 IPC should
not have been compelled to face the rigmaroles of a
criminal trial. As a result, the charges under Section
306 IPC against the appellants are quashed."
14. Yet in another decision in the case of Ramesh Kumar v/s.
State of Chhattisgarh [(2001) 9 SCC 618], while examining
different shades of the meaning of "instigation". In Para 20,
Hon'ble Apex Court held as under :-
"20. Instigation is to goad, urge forward, provoke, incite or
encourage to do 'an act'. To satisfy the requirement of
instigation though it is not necessary that actual words
must be used to that effect or what constitutes instigation
must necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. The
present one is not a case where the accused had by his
acts or omission or by a continued course of conduct
created such circumstances that the deceased was left
with no other option except to commit suicide in which
case an instigation may have been inferred. A word uttered
in the fit of anger or emotion without intending the
consequences to actually follow cannot be said to be
instigation.
In the said case this Court came to the conclusion that
there is no evidence and material available on record
wherefrom an inference of the appellant- accused having
abetted commission of suicide by Seema (the appellant's
wife therein) may necessarily be drawn."
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15. Thus, abetement involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.
Without positive act on the part of the accused to instigate or aid
in committing suicide, conviction cannot be sustained. The
intention of legislature and ratio of cases decided by Hon'ble
Apex Court is clear that in order to convict a person under
section 306 of IPC, there has to be clear mens rea to commit the
offence. It also requires an active act or direct act which led the
deceased to commit suicide seeing no option and this act must
have been intended to push the deceased into such a position
that he committed suicide having no option.
16. Facts of the case viewed from aforesaid angle and
examining the case independently, solitary allegations against
the petitioners are that they were not providing work for which
the deceased was selected and one of the petitioner was forcing
the deceased to tender resignation. If this allegations are believed
to be true on its face value, none of them can be said to be active
act on the part of the petitioners instigating deceased to commit
suicide. In the present case, if allegations levelled against the
petitioners in FIR are believed to be true, then the deceased had
option to approach concerned authority under labour law to
ventilate his grievance, but it cannot be said that deceased was
left with no option.
17. Taking the totality of facts and materials on record, it will
lead to conclusion that the deceased himself is responsible to
commit suicide, none else can be held responsible for his death.
As stated above, it is gloomy and sad incident, sentiments
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gathered therefrom cannot allowed over rule of law.
18. Recently, Hon'ble Apex Court in the case of Prabhat Kumar
Mishra v/s. State of Uttar Pradesh [2024 (3) SCC 665] after
referring slew of authorities including case of Netai Dutta (supra)
exercised power under section 482 of Cr.P.C. and quashed the
proceedings.
19. Apt to note that offence under section 3(2)(v) of the
Atrocities Act is also invoked against the petitioners. Section 3(2)
(v) of the Atrocities Act reads as under :-
"(v) commits any offence under the Indian Penal
Code (45 of 1860) punishable with imprisonment for a
term of ten years or more against a person or property
knowing that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to
such member, shall be punishable with imprisonment
for life and with fine;"
20. In case of Masumsha Hasanasha Musalman v/s. State of
Maharashtra [(2000) 3 SCC 557], Hon'ble Apex Court observed
purport of section 3(2)(v) of the Atrocities Act as under :-
"9. Section 3(2)(v) of the Act provides that whoever, not
being a member of a Scheduled Caste or a Scheduled
Tribe, commits any offence under the Penal Code, 1860
punishable with imprisonment for a term of ten years or
more against a person or property on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member, shall be
punishable with imprisonment for life and with fine. In the
present case, there is no evidence at all to the effect that
the appellant committed the offence alleged against him on
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the ground that the deceased is a member of a Scheduled
Caste or a Scheduled Tribe. To attract the provisions
of (2000) 3 SCC 557 Section 3(2)(v) of the Act, the sine qua
non is that the victim should be a person who belongs to a
Scheduled Caste or a Scheduled Tribe and that the offence
under the Penal Code, 1860 is committed against him on
the basis that such a person belongs to a Scheduled Caste
or a Scheduled Tribe. In the absence of such ingredients,
no offence under Section 3(2)(v) of the Act arises. In that
view of the matter, we think, both the trial court and the
High Court missed the essence of this aspect. In these
circumstances, the conviction under the aforesaid
provision by the trial court as well as by the High Court
ought to be set aside."
21. Reading FIR, it does not disclose necessary ingredient of
section 3(2)(v) of the Atrocities Act. Prosecution could not justify
invoking offence under section 3(2)(v) of the Atrocities Act as
allegations are missing that victim is member of SC / ST Act.
Therefore, invocation of offence under section 3(2)(v) of the
Atrocities Act is not maintainable.
22. In the case of V.P. Shrivastava v. Indian Explosives
Ltd. [(2010) 10 SCC 361], Hon'ble Apex Court has held that
when prima facie no case is made out against the accused, then
the High Court ought to have exercised the jurisdiction
under Section 482 CrPC and quashed the complaint.
23. In the case of State of Haryana v. Bhajan Lal [1992 Supp
(1) SCC 335], Hon'ble Apex Court in the backdrop of
interpretation of various relevant provisions of the Code of
Criminal Procedure and the principles of law enunciated by
Hon'ble Apex Court in a series of decisions relating to the
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exercise of the extraordinary power under Article 226 of the
Constitution of India or the inherent powers under Section
482 CrPC, gave the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of the court or otherwise to secure
the ends of justice. Exhaustive list of categories are as under :-
(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 non-cognizable
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 Act concerned (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 Act concerned,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
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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."
24. In the result, the application is allowed. The impugned FIR
being C.R.No.I-101 of 2017 registered with Rajpipla Police
Station, Narmada as well as all consequential proceedings
initiated in pursuance thereof are hereby quashed and set aside
qua the applicants herein. Rule is made absolute. Direct service
is permitted.
(J. C. DOSHI,J)
SATISH
