Gujarat High Court
Vaikunthbhai Shivrambhai Nimavat vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.MA/3135/2017 ORDER DATED: 02/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3135 of 2017
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VAIKUNTHBHAI SHIVRAMBHAI NIMAVAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR R D CHAUHAN(6865) for the Applicant(s) No. 1
MR YUSUFKHAN PATHAN(3799) for the Applicant(s) No. 1
MS VIDITA D JAYSWAL(6730) 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 : 02/05/2025
ORAL ORDER
1. At the outset, it is required to be noted that, present
petitioner has not pressed for this application insofar as the
offence punishable under the IPC. Thus, this application is
confined to the offence punishable under the Atrocities Act.
2. By way of this petition, under Section 482 of the Code of
Criminal Procedure, the petitioners have prayed for quashment
of the FIR being I. C.R. No.71 of 2016 registered with
Bhaktinqagar Police Station against the petitioner for the
offences punishable under Sections 406, 420, 504, 506(2)
and 114 of the IPC and under Section 3(1)(10) of The
Scheduled Castes And The Scheduled Tribes
(Prevention Of Atrocities) Act, 1989.
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3. The short facts of the case as emerging from the FIR are
that the applicant is a travel agent by profession and operates
a travel business under the name Vrundavan Yatra Sangh,
situated at Rajkot. The complainant's relative had booked two
seats under ticket No. 606 dated 18.02.2016 for a religious
tour to Puri, Champaranya, and Gangasagar scheduled to
commence from 01.05.2016 for a duration of 11 days. The said
booking was made through the applicant's son, Nikhil, who was
managing the tour operations. As per the allegations, the
complainant and one accompanying person availed the tour
and completed the journey with all requisite facilities, without
any untoward incident during the course of travel.
3.1. However, on 12.05.2016, an FIR being I-C.R. No. 71 of
2016 came to be registered at Bhaktinagar Police Station,
Rajkot against the present applicant and his son Nikhil.
Aggrieved by the registration of the said FIR, the applicant has
preferred the present application under Section 482 of the
Code of Criminal Procedure seeking quashing of the FIR and all
proceedings arising therefrom.
4. Heard learned advocate for the petitioner and learned
advocate for the first informant and learned APP for the
respondent - State.
5. 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
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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. 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.
6. 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 has 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.
7. Learned APP while adopting the submissions made by
learned advocate for the first informant would submit to
dismiss the present petition.
8. 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 Section 3(1)(10) of 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
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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
petitioners. 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.
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:
"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
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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 (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
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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."
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.
11. 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 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
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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."
12. 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
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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.
(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
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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."
13. 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.
14. For the foregoing reasons, the petition is allowed. FIR
being C.R. No. I. C.R. No.71 of 2016 registered with
Bhaktinqagar Police Station against the petitioner is
quashed and set aside.
15. FIR in question and subsequent proceedings arising
there-from in respect of the offence punishable under the IPC
stands continued; without being influenced by any
observations made in this order.
16. 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)
MANISH MISHRA
