Gujarat High Court
Apoorva Oza vs State Of Gujarat on 7 July, 2023
NEUTRAL CITATION
R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15861 of 2013
With
R/CRIMINAL MISC.APPLICATION NO. 17116 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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APOORVA OZA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PANKAJ S CHAUDHARY(3269) for the Applicant(s) No. 1
JAGATSINH L VASAVA(7888) for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/07/2023
ORAL JUDGMENT
(i) By filing Criminal Misc. Application No.15861 of 2013, under Section 482 of the Code of Criminal Procedure, 1973 the applicant- Apoorva Oza seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being, I-C.R. No.93 of 2013 registered Page 1 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined with Valia Police Station, Bharuch, on 03.09.2013 for the offence punishable under Section 354 of the IPC and Section 3(1) of the "Atrocity Act".
(i) By filing Criminal Misc. Application No.17116 of 2013, under Section 482 of the Code of Criminal Procedure, 1973, the applicant- Prabhakarsinh Zala & Ramanbhai Patel seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report being, II-C.R. No.53 of 2013 registered with Valia Police Station, Bharuch, on 27.09.2013 for the offence punishable under Sections 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Atrocity Act") and Section 506 read with Section 114 of the the Indian Penal Code.
2. Both the complaints have been filed by the respondent No.2 Anilaben Prabhubhai Vasava.
3. Heard Mr.Pankaj Chaudhary, learned advocate for the Page 2 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined applicants, Mr.L.B. Dabhi, learned AGP for the respondent No.1-State of Gujarat and Mr.Jagatsinh Vasava, learned advocate for the respondent No.2.
4. Learned advocate for the applicants has submitted that, the applicants and original complainant are working in the same NGO namely, "Aga Khan Rural Support Program"
which is a Non-Government Organization and which is recognized by the Government of Gujarat. It is further submitted that the said NGO undertakes specific project in the tribal belts in District Bharuch, Narmada and Surat and the applicant Mr. Apoorva Oza (Special Civil Application No.15861 of 2013) is the CEO of the said NGO. As the CEO, he had taken a disciplinary action against the respondent No.2 and thereby issued a show cause notice. To escape from the said administrative proceedings, the respondent No.2 has filed complaints in connivance with one Mr. Hansraj Gurjar; as both the complainant and Mr. Hansraj Gurjar have embezzled funds allocated for the tribal and were involved in financial irregularities which were against Page 3 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined the object of the NGO. The attention of the Regional Manager was drawn and administrative action was also taken against the respondent No.2 in this regard and before lodging of the complaint, attention of the higher authority, including the DSP, Bharuch was drawn disclosing the fact about the behavior and misconduct on the part of respondent No.2.
4.1 Further, learned advocate has submitted that subsequently, pursuant to the show cause notice dated 31 st August 2013, administrative action taken and suspension order came to be passed, as Mr. Hansraj Gurjar and the complainant both had withdrawn an amount Rs.63,000/- of NGO, the present complainant had filed an application dated 30th August 2013 against the present applicants only with a view to avoid administrative action and legal consequences thereof. It is further submitted that the allegations made in the complaint relate to incident of 11 th May 2013, whereas the complaints have been filed belatedly with a delay of about three months. Even no offence is made Page 4 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined out under Section 354 of the IPC and even the respondent No.2 herself is a headstrong personality and against her conduct, few lady members of the Mahila Manch of Dediapada had also given a written complaint in the local Police Station. The present complaint is an afterthought, not connected with any of the incident and is filed based on false and fabricated evidence.
4.2. After filing of the said complaint, being I-C.R. No.93 of 2013 on 27th September 2013, a second complaint, being II- C.R. No.53 of 2013 was filed against the applicant No.1- Prabhakarsinh Zala and applicant No.2-Ramanbahi Patel under section 3 (1) (xii) of the "Atrocity Act" and under Section 506 read with Section 114 of the IPC, wherein the respondent No.2- original complainant has alleged that on 21st August 2013 the Regional Manager called upon the respondent No.2, and in response to which, the complainant and one Mr. Hansraj Gurjar reached the office of the applicant No.1. At that time, the applicants used derogatory language and remarks and on being opposed by Mr. Hansraj Page 5 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined Gurjar, applicant No.1 pushed them out of the premises. Hence, a second complaint came to be filed. Hence, he requested to allow both the applications and quash both the complaints.
5. Per contra, learned advocate Mr.Vasava for the respondent No.2- original complainant vehemently opposed the applications and has submitted that it is an undisputed fact that the original complainant belongs to a Scheduled Tribe and the present accused have committed an offence by insulting her in public. It is further submitted that, prima facie, an offence is made out and since the offence is committed against a woman and is under the "Atrocity Act", it is not a fit case where the court should exercise its discretion. Hence, requested to dismiss both the applications.
5.1. Learned APP has also submitted that no case is made out to exercise jurisdiction under Section 482 of the Cr.P.C., as the allegations levelled against the present applicants in Page 6 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined the FIR are quite serious. Therefore, let in trial, if allegations are decided, both the applications do not require any consideration and therefore, he has prayed that both the petitions be dismissed.
6. Having heard the learned advocates for the respective parties and having gone through the evidence available on record, it is an admitted and undisputed fact that the respondent No.2- complainant is working in the Aga Khan Trust, which is an NGO registered under Section 25 of the Companies Act, 1956, while the present applicants are responsible officials working as the CEO and Regional Manager of NGO and the NGO is recognized by the Government through its Rural and Tribal Development Department and it works in the field of rural and agricultural development. The NGO is having a specific project in the tribal belts.
7. After going through both the complaints, it appears that the alleged incident took place in the month of August Page 7 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined 2013 and for which a complaint, being C.R. No.I-93 of 2013 came to be filed on 03.09.2013. In connection with the alleged offence committed on 11th May 2013, it prima facie appears that the complaint is filed latter on after three and half months and no explanation for the said delay is given in the complaint. Even, it also reveals that on 11 th May 2013, on the auspicious ceremony of " Vastu Pujan" held at the home of the complainant, on that day there was holiday though the accused Apoorva Oza called the complainant at Office and when she reached the office between 2:00 and 2:30 hours, at that time, he locked the doors and windows of the office and he said why she did not give respect to him and why did not she reply and pick up his call and thereby he harassed her mentally. It is further stated that since she belongs to a SC & ST community and she being a woman, the applicants repeatedly tried to molest her. Hence, a second complaint, being II-C.R. No.53 of 2013 is filed under Section 3(1)(xii) of the Atrocity Act second and under Section 354 of the IPC.
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8. Further, going through the material produced on record, it appears that the accused had issued a show cause notice on suspended on 31st August, 2013, wherein the accused has mentioned about the incident of 21 st August 2013. Further, it is stated that in collusion with one headstrong person Hansraj, who is cited as witness, the complainant had used abusive language and threatened the officials of NGO, which is one of the casue along with six other causes are mentioned and explanation of the complainant sought for. In the said notice the name of Mr.Hansraj Gurjar has also been mentioned as adviser of the complainant and further as she wanted to carry out activity for the help of Mahila Morcha Dedipada with the help of adviser from HSG Member, though without consent of Mahila Morcha and Institution appointed Mr.Hansraj as adviser against that institute has raised an objection who is cited as witness of incident. A bank statement is produced on record, wherein the withdrawal of amount from NGO's account which depicts the name of Mr. Hansraj Gurjar and one Mr. Dineshbhai Vasava. Thereafter, one written Page 9 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined complaint came to be filed on 29 th August 2013. The minutes of the meeting dated 11th May 2013 is produced at Annexure-H, which also reflects about the presence of complainant and other six employee in the meeting. One complaint was also filed on 5th September 2013 by the Mahila Manch against the present complainant- respondent No.2 drawing attention towards the financial irregularities and about her conduct. Thereafter, another complaint came to be filed on 27th September, 2013 against the Regional Manager and one Mr. Prabhakarsinh Zala, who are the applicants in the Criminal Misc. Application No.17116 of 2013 wherein, it is alleged that both the accused have insulted her and asked her as to why she came along with Mr. Hansraj Gurjar and action made of embezzlement.
9. On perusal of both the FIR, prima facie, it appears that the allegations levelled against the applicants herein have arisen out of their official function, wherein, some departmental proceedings have already been initiated against respondent No.2- complainant, and after initiation Page 10 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined of such proceedings, belatedly a second complaint came to be filed wherein, it is alleged that, the complainant was insulted on 25th August 2013. Now, it is pertinent to note that, in the first complaint, which is filed on 3 rd September 2013, there in no whisper about the alleged incident that took place on 21st August 2013. Even as stated in second complaint being I-CR No.93 of 2013, both the applicants of Criminal Misc. Application No.17116 of 2013 are not mentioned as the accused persons and no allegations have been levelled against them. The said complaint has also been filed belatedly without any explanation as to the delay in filing the complaint. Thus, prima facie, it appears that the present proceedings have been initiated with an ulterior motive to avoid departmental proceedings. Rather, it is a clear case of misuse of the process of law more particularly, where there are no any allegation of sexual harassment, exploitation or use of criminal force are made out in the first complaint dated 03.09.2013. As discussed above, even no allegation under Section 3(1) (xii) of the Atrocity Act are made out clearly. So far, allegations levelled against the Page 11 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined present applicants that they have abused their position and exploited the complainant are concerned, if these allegations are accepted at its face value, averments made in the complaint does not disclose any offence and even, the complaint is filed belatedly with a view to escape from administrative action and proceedings which have been initiated by the NGO against the complainant for embezzlement and other administrative lapses.
10. If, the Court perused the complaint dated 3 rd September, 2013, which is filed under Section 3(1) of the Atrocity Act and Section 354 of the IPC. Section 3(1) of the Atrocity Act provides the punishment of offence of Atrocities and defines the separate offence Section 3(1) (i) to 3(1) (xv) as no averment clearly reflects which offence committed under the Atrocity Act. In absence of specific allegations qua specific allegations mentioned in Section 3(1) (i) to (xv). Further, to consider the offence under Section 3 of the Atrocity Act. The key ingredients of the punishment under Section 3(1)(xii) of the Atrocity Act speak about intentional Page 12 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined insult/intimidation with an intend to humiliate a member of SC/ST in any place within a public view. The provision itself would indicate the ingredients of the intentional insult and intimidation with an intent to humiliate a member of a Schedule Caste or Schedule Tribe community. All insults or intimidation to a person will not be an offence under the Act, unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the "Atrocity Act" is to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subject to indignities, humiliations and harassment.
11. While in second complaint dated 3 rd September, 2013 is filed under Section 3(1) (xii) and Section 506 read with Section 114 of IPC, another key ingredients 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 Page 13 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined up for consideration before this Court as per the judgment in the case of Swaran Singh & Ors. v. State, reported in 2008(8) SCC 435 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".
12. The key ingredients of "public view" is missing as per the FIR, are that the allegations of abusing the informant were within the four walls of the office and door and windows were closed. It is not the case of the informant that there was any member of the public was present, at the time of the incident. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not Page 14 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined made out. In this regard reference is required to be made in the case of Hitesh Verma v. State of Uttarakhand, reported in (2020) 10 SCC 710, wherein the Hon'ble Apex Court has been pleased to explain and summarize the ingredients of the words "place in a public view", which is distinguished with the "Public Place" and further, it is clarified that presence of members of the public inside building or closed steps could render such place a place in a public view to presence of members of public offence under the provisions of Atrocities Act, 1989 can only be made out if other ingredients being satisfied. Herein, as discussed above, the alleged incident took place within the office premises and in the complaint, the complainant herself has stated that the doors and windows of the office were closed and, except, her no one was present.
13. As discussed above, this Court has also considered the scope and ambit of powers under Section 482 of Cr.P.C. by the Hon'ble Apex Court in the case of Gorige Pentaiah v. State of Andhra Pradesh, reported in (2008) 12 SCC 531, Page 15 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined wherein the Hon'ble Apex Court has held in para 15, 16 and 26 as under:
"15. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
16. This court inState of Karnataka v. LO. Munniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under Section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with Page 16 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts."
26. A three judge Bench of this Court in Mohan Goswami & Another v. State of Uttaranchal & Others, AIR 2008 SC 251 has examined scope and ambit of Section 482 of the Criminal Procedure Code. The court in the said case observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court."
14. So far, allegation of threat is concerned, no element is found on record and no any untoward incident till the date is reported. So far as the allegations under Section 354 of the IPC and 3(1) (xii) of the Atrocity Act are concerned, the averments made in the FIR clearly reveal that there is no element of any Page 17 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined type of the alleged assault or use of criminal force by the accused on the complainant or has tried or intended to outrage or likely to outrage her modesty. In view thereof, no offence is committed under Sections 506 354, and 114 of the IPC and Section 3(1)(xii) of the Atrocity Act also.
Therefore, the culpable intention of an accused is crux of the matter, wherein there should be used of criminal force. Herein, no such averments are found from the allegations levelled against the accused by the complainant in the complaint. Thus, such elements are missing in the complaint.
14.2 So far, Section 506 of the IPC is concerned, as the offence of criminal intimidation, which should be made out, it must be established that the accused had an intention to cause alarm to the complainant. In the case of Joseph Salvaraj A. v. State of Gujarat, reported in AIR 2011 SC 2258 and in the case of Manik Taneja v. State of Karnataka, reported in (2015) 7 SCC 423 and further in the case of Page 18 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined Pravinbhai Becherbhai Vankar v. State Of Gujarat, reported in (2007) 1 GLH 337, and in the case of Mansafkhan Yasinkhan Pathan v. State of Gujrat, reported in 2002 (1) GLH (UJ) 4 this Court has also held that mere utterance of words which do not cause any alarm to the complainant of such act is not enough. The complainant should have been alarmed by the threat administered to her/him in absence of any apprehension or fear so as to cause alarm to the complaint. She was unable to attend the duties after the threat to make her presence.
15. In view of the above, the main contention of the learned advocate for the petitioner is that the original complainant is an employee of the "Aga Khan Rural Support Program" which is a Non-Governmental Organization and the applicants in both the applications are also officials of the Trust. The proceedings initiated against the present complainant is in respect of administrative lapses, for which some administrative action was contemplated. With a view to escape from the aforesaid proposed proceedings, in Page 19 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined collusion with one Mr.Hansraj Gurjar, whose selection as adviser by respondent No.2-complainant being objected by CEO of the Institute and filed complaints and even for filing late compliant, no explanation is given. Even no any allegations being made against the applicant No.2- Ramanbahi Patel. it appears that the FIR does not reveal any of the ingredients of the alleged offence and the case appears to be nothing but an abuse of process of law and lacks of bona fide. I have no hesitation to hold that permitting continuance of the proceedings against the applicants-accused would result in the abuse of process of Court.
16. Resultantly, considering the foregoing reasons and in the aforesaid circumstances, the uncontroverted allegations made in the compliants are prima facie, no any offence is made out both the applications are allowed. The Complaints/F.I.R. being I-C.R. No.93 of 2013 registered with Valia Police Station, Bharuch and II-C.R. No.53 of 2013 registered with Valia Police Station, Bharuch are hereby Page 20 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023 NEUTRAL CITATION R/CR.MA/15861/2013 JUDGMENT DATED: 07/07/2023 undefined ordered to be quashed and set aside qua the present applicants. All further consequential proceedings pursuant thereto shall also stand terminated.
Rule made absolute. No order as to costs.
Sd/-
(HASMUKH D. SUTHAR,J) ALI Page 21 of 21 Downloaded on : Sat Sep 16 21:00:24 IST 2023