Gujarat High Court
Thakor Dashrathji Babuji vs State Of Gujarat on 24 November, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5638 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 19666 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== THAKOR DASHRATHJI BABUJI Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1 MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1 RULE SERVED THRU CONCERNED POLICE STN for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 24/11/2022 COMMON CAV JUDGMENT
1. The complainant, in both the impugned FIRs, is the same. Hence, both the applications are Page 1 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 taken up together for hearing and are disposed of by the common order.
2. Both the applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for quashing the FIRs.
Criminal Misc. Application no.5638 of 2018 is filed for quashing the FIR bearing CR no.I- 185/2017 under Sections 395, 323, 504, 506(2), 427 of the IPC as well as Sections 3(1)(r), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Atrocity Act') and Criminal Misc. Application no.19366 of 2018 is filed for quashing the FIR bearing CR no.I-195/2017 under Section 507 of the IPC as well as Sections 3(1)(r) and 3(2)(va) of the Atrocity Act. Both the FIRs are registered at Mehsana Taluka Police Station, District Mehsana.
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3. Advocate Mr. Yogendra Thakore for the applicant in Criminal Misc. Application no.5638 of 2018 has submitted that the FIR lodged against the applicant is absolutely illegal, frivolous, vexatious and bogus and is filed with a view to abuse the criminal machinery against the applicant, where the applicant is agriculturist and the respondent no.2-complainant is the Sarpanch of Village Heduva Hanumant, both are residing in the same society.
3.1 Mr. Thakore submitted that a false complaint has been given on 11.9.2017 alleging that the applicant had quarreled with the complainant with regard to renovation of the house of the applicant which is at plot no.7 and further alleging that the applicant has looted an amount of Rs.3,500/- and gold chain worth Rs.60,000/- and that the applicant had abused the complainant by his caste as well as had Page 3 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 beaten him.
3.2 Mr. Thakore submitted that the complainant, now deceased, was in a habit of lodging complaints under the Atrocity Act against various persons with an ulterior motive, probably to recover the compensation amount from the State and to harass the persons named in the FIR. Mr. Thakore submitted that CR no.I-268/2015 came to be quashed in Special Criminal Application no.64 of 2016 on 3.9.2021, where he submits that along with the said Special Criminal Application, the application of other co-accused i.e. Criminal Misc. Application no.22354 of 2015 and Criminal Misc. Application no.2574 of 2017 were heard together. He further submitted that CR no.II-1/2011 was quashed by way of consent vide order dated 24.10.2013 passed in Criminal Misc. Application (for quashing and setting aside the FIR) no.15049 of 2013. In Page 4 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 CR no.II-249/2015, the accused were acquitted on 29.8.2017 by the Special Judge (Atrocity), Mehsana in Special Atrocity Case no.37 of 2015 and the other matter bearing CR no.I- 195/2017 is also filed by the same complainant. Further, adding to the submissions, he stated that the present complainant himself was acquitted in an offence under Sections 406 and 408 of the IPC being FIR bearing CR no.I-4/2011. 3.3 Mr. Thakore submitted that contents of the FIR do not suggest any case to be drawn under the Atrocity Act, by placing reliance on the judgment of Swaran Singh & Ors. Vs. State, Through Standing Counsel & Ors., reported in (2008) 8 SCC 435. Further stated that no case could be made out of any offence of dacoity to invoke Section 395 of the IPC in the present matter, to support the submission, Advocate Mr. Thakore relied on the judgment Page 5 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 of this Court in the case of Dharmendrabhai Nandubhai Patel Vs. State of Gujarat, reported in 2012 (1) GLR 237.
4. Advocate Mr. Karia submits that the impugned FIR bearing CR no.I-195/2017 could not even be registered since no offence has taken place in a public view or any public place. Mr. Karia submits that the allegation is that the applicant had abused him through phone and since the alleged offence is not in a public view or public place, Mr. Karia submits that the Atrocity Act would not be applicable in the matter.
5. The FIR bearing CR no.I-185/2017 filed on 11.9.2017 was with the allegation that the applicant who is staying in his society in House no.33 raised his voice earlier on phone questioning the complainant who he was to instruct him about 5 feet or 3 feet Page 6 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 construction over his house, to that, the complainant replied that present applicant had not sought construction permission for his upper floor and that he was trying to encroach his land. The complainant's allegation is that no sooner the phone ended, the applicant, his brother Sachin Babuji Thakkar and four other men, whom he could recognise, only on seeing them, came suddenly at the turning of the society near House no.8 and by using abusive language started quarreling with him, when he stopped them to use abusive words, they got excited and addressing by his caste, countered that he had got cases registered against the brother of his friend under the Atrocity Act and if at all he would file a case against any of the person from Vadisana, they would kill him and thereafter, started giving him fist and kick blows and during that commotion, someone Page 7 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 out of them looted Rs.3,500/- which were of Rs.500/- denomination and a gold chain weighing to 2 to 2.5 Tolas, which he had received from his ancestors.
6. The complainant further alleges that hearing his outcry on being beaten by stick by the applicant and his men, watchman of the society came there who intervened, Sachin Babuji gave him two slaps, at that time, owing to the uproar, society people gathered and as his sister Chandrikaben phoned 108 Ambulance, he was admitted to Mehsana Civil Hospital for treatment.
7. The sequence of events indicate that when the accused was abused by his caste, no other person was present there. The complainant does not say that he was humiliated by his caste in presence of the watchman or other society members. The incident allegedly took Page 8 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 place at the turning near House no.8, where none from House no.8 are stated to have been present there.
8. Another impugned FIR bearing CR no.I-195/2017 on 19.12.2017 says that on 14.12.2017, the watchman of his society had come to his house with the driver of the car sent by owner of Gujarat Multi Gas who made the complainant have conversation with his employer on phone, who informed the complainant that he has sent the car for getting the voting done speedily, to that, the complainant told the applicant that the resident of Ooji are rich and they do not need his car, and, when the complainant asked the applicant the name of the political party who had sent the car, it is stated that the applicant put down his phone. It is alleged that when at about 11:00 in the morning, the complainant was at Riddhi Siddhi Apartment, the applicant phoned him up Page 9 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 and asked the complainant, why he was not getting the voting done, the complainant alleges that the applicant abused him by his caste on phone and told him that he is coming to that place. The complainant waited for him, but the applicant did not arrive. The allegation is that the applicant had abused him by his caste on phone.
9. In the FIR bearing CR no.I-185/2017, the cause for complaint appears to be some construction work being done by the applicant and that was resisted by the complainant on the ground that it was a illegal construction for which no permission has been sought for and that the complainant considered the construction as encroachment on his land. The communication was on phone and thereafter, as per the complainant, the applicant and his brother and 4 other men had come down to his society turning near House no.8. The Sections Page 10 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 which have been invoked are Sections 3(1)(r) and 3(2)(va) of the Atrocity Act in both the impugned FIRs. Sections 3(1)(r) and 3(2)(va) of the Atrocity Act read as under:-
"3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
3(2)(va) commits any offence specified in the Schedule, 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 such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;"
10. The provision of Section 3(1)(r), thus, refers to intentional insult or intimidation with an intention to humiliate in any place Page 11 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 within a public view the member of a Scheduled Caste or a Scheduled Tribe. The FIR does not disclose the fact that any other person was present at the time when the alleged insult or intimidation by the accused took place which was with an intent to humiliate him in any public view.
11. The expression 'any place within public view' has been clarified in the judgment at paragraph-14 of the decision in the case of Hitesh Verma Vs. State of Uttarakhand & Anr., reported in (2020) 10 SCC 710, referring to the case of Swaran Singh & Ors. Vs. State, Through Standing Counsel & Ors., reported in (2008) 8 SCC 435, it has been observed 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"Page 12 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022
R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors. 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. The Court held as under:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Page 13 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 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 Page 14 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 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."
12. In the case of Swaran Singh (supra), the Hon'ble Apex Court has noted the distinction of the expression 'public place', not being found in Section 3(1)(r), but instead, there has been use of the expression 'not any place within public view'. Section 3(1) is substituted by Act No.1 of 2016 with effect from 26.1.2016.
13. In the case of Hitesh Verma (supra), while referring the case of Swaran Singh (supra), the distinction between a 'public place' and Page 15 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 'in any place within public view', has been expounded, which becomes applicable in the facts of the present case, which clarifies that utterance of the words is not in presence of any member of the public nor in the society within public view, the alleged incident is alleged to have taken place at the turning near house no.8. Hence, Section 3(1)(r) would not be applicable to the facts of the case, equally would be true for the FIR bearing CR no.I-195/2017, where there is no allegation that any such abuse was even in any place or any public view. The whole allegation is that the applicant had abused him on phone. Hence, to that case too, Section 3(1)(r) would not be made applicable.
14. In FIR bearing CR no. I-195/2017, the complainant had further alleged that he was robbed of his money and gold chain. , FIR says that during the commotion, someone from Page 16 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 the accused took away his cash of Rs.3,500/- and gold chain. The police has invoked Section 395 of the IPC against the accused to constitute a case of dacoity.
15. The concept of the dacoity has been clarified, in the case of Dharmendrabhai Nandubhai Patel (supra), it has been observed as under:-
"21. ...... The Division Bench of this High Court, in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed 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 Page 17 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must 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 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 of committing theft Page 18 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 hurt 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 to in sec.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 sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:-
"The words "for that end" in sec.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 Page 19 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 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 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.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 Prosecutor 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, words 'in those Page 20 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 circumstances' would widen the
application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N. 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, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
The language used in another case reported as King Emperor v. Mathura Page 21 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 Thakur, 6 C.W.N. 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 to give effect to it and I, therefore, follow the decisions in those two cases."
22. In the last paragraph of the judgment, the Division Bench observed as under:-
"Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for Page 22 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
16. Here, there are allegations of hurt caused to the complainant during the course of the incident which, as alleged by the complainant, was insult and humiliation and during the course of the incident, it is alleged that anyone of the accused would have stolen the cash or gold chain. The judgment referred to hereinabove explains that the theft would amount to robbery if while committing the offence of theft or while attempting to carry away the property obtained by theft, the offender for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful Page 23 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 restraint or fear of instant death or of instant hurt or of instant wrongful restraint. The said act should have been done in order to commit the offence of theft. Here, there is no such allegation that the accused persons had gathered to commit any offence of theft. Hence, Section 3(2)(va) would not be applicable in the case. Further, the offence under Section 395 of the IPC does not get covered in the Schedule under Section 3(2)(va) of the Atrocity Act. Hence, no case would be made out even under the Atrocity Act, nor the same would be falling under the IPC. Hence, in view of reasons given hereinabove, Section 3(1)(r) and Section 3(2) (va) of the Atrocity Act would not be applicable in both the impugned FIRs. Further, Section 395 of the IPC would not get attracted in FIR bearing CR no.I-185/2017. Page 24 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022
17. Considering the law that has been laid in the case of Ishwar Pratap Singh Vs. State of U.P., reported in (2018) 13 SCC 612, there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Cr.P.C., the High Court is required to examine as to whether intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice.
18. Thus, taking into consideration the facts and the reasons hereinabove, the petitions are partly allowed. Section 395 of the IPC and Sections 3(1)(r) and 3(2)(va) of the Atrocity Act in the FIR bearing CR no.I-185/2017 registered with Mehsana Taluka Police Station, District Mehsana are quashed and set aside. Sections 3(1)(r) and 3(2)(va) of the Atrocity Act in the FIR bearing CR no. I- 195/2017 registered with Mehsana Taluka Page 25 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022 R/CR.MA/5638/2018 CAV JUDGMENT DATED: 24/11/2022 Police Station, District Mehsana is quashed and set aside. While both the FIRs under other sections of the IPC would continue.
(GITA GOPI,J) Maulik Page 26 of 26 Downloaded on : Fri Dec 23 23:59:52 IST 2022