Gujarat High Court
Dineshbhai @ Mukeshbhai Jitabhai Patel ... vs State Of Gujarat & on 5 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4481/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4481 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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DINESHBHAI @ MUKESHBHAI JITABHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 2
MR JT TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 2
MS JIGNASA B TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 2
MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2016
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HC-NIC Page 1 of 11 Created On Wed Apr 06 02:49:24 IST 2016
R/SCR.A/4481/2014 CAV JUDGMENT
CAV JUDGMENT
1 By this writ application under Article 226 of the Constitution of India, the applicants - original accused prayed for quashing of the proceedings of the Criminal Case No.1824 of 2014 pending in the Court of the learned Judicial Magistrate, First Class, Khedbrahma arising from the First Information Report being IC.R. No.22 of 2014 lodged by the respondent No.2 herein at the Khedbrahma Police Station for the offence punishable under Sections 392, 323, 504, 506(2) read with 114 of the Indian Penal Code.
2 The case of the prosecution may be summarized as under:
2.1 The applicant No.1 is running a medical store in the name and style of "Parva Medical Store" situated in the premises of the Manas Hospital at Idar. The petitioner No.2 is managing the affairs of the said medical store. The respondent No.2 is a practicing Doctor. He is the owner of the Manas Hospital. He entered into a lease agreement with the applicant to run the medical store in the hospital. In 2014, the dispute arose between the applicant No.1 as a tenant and the respondent No.2 as the landlord of the premises in question. The respondent No.2 started forcing the applicants to vacate the shop. It is the case of the respondent No.2 that on 25th April, 2014, the applicants herein picked up a quarrel. It is alleged that while the altercation was going on, the applicant No.1 snatched away the mobile phone from the hand of the respondent No.2 and when the respondent No.2 requested to return the mobile phone, the applicants herein refused to do so. He has alleged that there was grappling and in the process, the applicants snatched the Maruti car key of the respondent No.2. While they were trying to make good their escape with the mobile phone and the kay of the Maruti car of the respondent No.2, the other people intervened and persuaded the Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT applicants to leave the place of occurrence. It is alleged that while leaving the place of the incident, the applicants threatened the respondent No.2 with his life.
2.2 It appears that the investigation culminated in filing of the chargesheet and the chargesheet culminated in the Criminal Case No.1824 of 2014 which is pending in the Court of the the learned Judicial Magistrate, First Class, Khedbrama. The chargesheet has been filed for the offence enumerated above.
3 Mr. J.T. Trivedi, the learned counsel appearing for the applicants vehemently submitted that the First Information Report lodged by the respondent No.2 is palpably false. He submitted that the lodging of the First Information Report is nothing, but a desperate attempt on the part of the first informant to get the shop vacated. Mr. Trivedi submitted that his client i.e. the applicant No.1 invested a huge amount for the purpose of running the medical store and all of a sudden, the first informant started pressurizing his clients to vacate the shop, thereby causing lot of hardships. Mr. Trivedi submitted that for any reason if the landlord wants his premises back, he has to act in accordance with law, but he cannot take the law in his own hands. He submitted that only with a view to get the the premises vacted from the applicants and to compel them to hand over the possession of the shop, the F.I,R. came to be lodged levelling an absolute false, frivolous and vexatious allegations.
4 Mr. Trivedi submitted that assuming for the moment that such incident occurred, still none of the ingredients to constitute the offence of robbery could be said to have been spelt out. He also submitted that none of the ingredients to constitute the offence punishable under Sections 504 and 506(2) of the I.P.C. are spelt out.Page 3 of 11
HC-NIC Page 3 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT 5 Mr. Trivedi further submitted that although the incident is sought to have occurred at a public place within the public view, yet there is not a single statement of any independent witness. The Investigating Officer recorded the statements of the three witnesses who are none other than the first informant's associates.
6 Mr. Trivedi submitted that the continuance of the prosecution will be nothing, but an abuse of the process of law.
7 On the other hand, this writ application has been vehemently opposed by Mr. Shastri, the learned advocate appearing for the respondent No.2 - original first informant and Mr. J.K. Shah, the learned Additional Public Prosecutor appearing for State. They both submitted that since the chargesheet has been filed, a prima facie case could be said to have been made out, and therefore, the proceedings of the criminal case may not be quashed. They submitted that having regard to the nature of the allegations, a prima facie case could be said to have been made out. They submitted that the application deserves to be rejected.
8 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the prosecution should be quashed.
9 The following facts are not in dispute:
(1) The first informant is the owner of the shop in question. The shop is situated in his own hospital.
(2) The shop has been given on rent to the applicant No.1 and the applicant No.1 is running a medical store in the said hospital.Page 4 of 11
HC-NIC Page 4 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT (3) The dispute cropped up between the first informant as the landlord and the applicant No.1 as a tenant of the premises.
10 It appears that ultimately, with the intervention of the family members, friends and other wellwishers, the possession of the shop was handed over by the applicant No.1 to the first informant.
11 The first question that falls for my consideration is whether any case of robbery could be said to have been made out. I fail to understand how the chargesheet could have been filed for the offence punishable under Section 392 of the I.P.C. It appears that Section 392 of the I.P.C. has been invoked as there are the allegations that the mobile phone was snatched away from the hand of the first informant and also the Maruti car key.
12 Let me assume for the moment that such allegations are true. Can it be said that the motive behind the crime was the commission of robbery. A Division Bench of this Court, in the case of Himatsing Shivsing v. the State of Gujarat [1961 GLR 678] has explained the law as under:
"Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt Or wrongful restraint, or fear of instant death or or instant hurt, Or of instant wrongful restraint. Before theft can amount to 'robbery', the offender moist have voluntarily caused or attempted to cause to any person death or hurt Or wrongful restraint, or fear of instant death or of instant hurt) or of instant wrongful restraint. The Second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The (third necessary ingredient is that the offender must voluntarily cause or Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft.
It is not sufficient that in the transaction 01 committing theft hunt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft, but for an object other than the one referred its in Section 390 I. P. Code, theft would not amount to robbery, it is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in Section 390, I. P. Code must always be satisfied before Wieff. can amount to robbery, and this has been explained in A.I.R. 1941 Oudh 476, in he following words ;
The words 'for that end' in ST 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft it does not mean that the assault or the hurt must be caused in 'the same transaction or in the same circumstances.
In Karuppa Gounden v. Emperor, A.I.R. 1918 Mad 821, which followed two Calcutta cases of Otaruddin Manjhi v. Kafiluddi Manjhi 5 Cal WN 372, and King Emperor v. Mathura Thakul 6 Cal W N 72, it has been observed at page 824 as follows :
Now it is our duty to give effect to the words 'for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here, The Public Prosecuto,. has been forced to argue that 'for 'that end' must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a Section in the Penal Code. Undoubtedly, the words 'in those circumstances' would widen the application of the Section and we are not permitted o do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as 5 Cal WN 372. Their Lordships put the question in this way:
It seems to us that the whole question turns upon the words 'for that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft? We think not. It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had n0 relation to the commission of theft, although theft was committed at the same time.Page 6 of 11
HC-NIC Page 6 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT The language used in another case reported as 6 Cal WN 72 is as follows:
The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.
Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect t0 it and I therefore follow the decisions in those two cases."
"Ordinarily, if violence or hurt etc. is caused al the time of theft, it would be reasonable to infer hat violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
13 I am of the view that no case worth the name is made out so as to attract Section 392 of the I.P.C.
14 The second question that falls for my consideration is whether the offence punishable under Sections 504 and 506(2) of the I.P.C. could be said to have been made out.
15 Section 504 of the I.P.C. contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the section merely because the insulted person did not actually break the peace or commit any offence having exercised self control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, I.P.C., the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, I.P.C. if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, I.P.C. If he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:
To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT In Guranditta v. Emperror, AIR 1930 Lah 344 (2): (32 Cri. LJ
62), it was observed that in dealing with a case under Section 504, I.P.C.
the court should try to find out what in the ordinary circumstances would have been the effect of abusive language used. Pichai Pillai v. Ramaswamy Ayyangar (1941) 42 Cri. LJ 48) (Mad.) relied on by the learned Magistrate is no authority for any proposition that no offence is committed under Section 504, I.P.C. by the accused if he uses abusive language against the complainant. In that case there was a discussion between the accused Bill Collector and the complainant in regard to the amount due by the complainant towards tax collectable by the Bill Collector. In the course of that discussion, the Bill Collector shouted against the complainant saying shameless fellow, I will shoe you. The details of the discussion and the exact circumstances leading to the shouting by the accused are not available from the brief judgement reported. It is also not known as to where exactly the occurrence took place in that case. (vide Karumanchi Veerangaiah vs. Katta Mark & Ors., 1976 Cr. LJ 1690) 16 In the case of Ronak Ashok Kedia v. State of Gujarat [Criminal Miscellaneous Application No.4145 of 2012 decided on 19th November, 2014], I have explained as to what would constitute the offence punishable under Section 506(2) of the I.P.C. I may quote the observations made in paras 10, 11 and 12 as under:
"10. The above takes me to consider whether any case is made out so far as the offence under Section 506(2) of the IPC is concerned. Section 506 reads as under: "S. 506. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;Page 9 of 11
HC-NIC Page 9 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
11. The essential ingredients The offence of criminal intimidation has been defined under Section 503 I.P.C and Section 506 I.P.C provides punishment for it.
Section 503 reads as under: "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.
Explanation: A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section.
An offence under Section 503 has following essentials:
1. Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
12. A bare perusal of Section 506 IPC makes it clear that a part of it Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Apr 06 02:49:24 IST 2016 R/SCR.A/4481/2014 CAV JUDGMENT relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accusedapplicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened."
17 In my view, none of the ingredients to constitute even the offence punishable under Section 506(2) of the I.P.C. are spelt out.
18 So far as Section 323 of the I.P.C. is concerned, it is not even the case of the first informant himself that any hurt was caused to him.
19 I am of the view that the First Information Report itself is false keeping in mind the dispute between the parties. The incident is sought to have occurred at about 4.15 in the afternoon of 25th April, 2014 whereas the First Information Report came to be lodged on the next day i.e. on 26th April, 2014 at 1 O'clock in the afternoon.
20 For the foregoing reasons, this application succeeds and is hereby allowed. The further proceedings of the Criminal Case No.1824 of 2014 pending in the Court of the learned Judicial Magistrate First Class, Khedbrahma are hereby ordered to be quashed. Rule is made absolute.
(J.B.PARDIWALA, J.) chandresh Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Apr 06 02:49:24 IST 2016