Gujarat High Court
Jitendra Nileshbhai Harsoda & 2 vs State Of Gujarat & on 10 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/20278/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20278 of 2015
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JITENDRA NILESHBHAI HARSODA & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SHAILESH R PATEL, ADVOCATE for the Applicant(s) No. 1 - 3
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/03/2017
ORAL ORDER
1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report bearing C.R. No.I171 of 2015 registered at the City 'C' Division Police Station, Jamnagar for the offence punishable under Sections 395, 354B, 294(b) and 120B of the Indian Penal Code.
2 It appears from the materials on record that one Manjulaben Fulchandbhai Patel, a resident of Jamnagar, lodged a First Information Report at the police station concerned stating that she is an elected councilor of the Jamnagar Municipal Corporation. On the date of the alleged incident, a programme of 'Ras Garba' was organised. The Minister of State, namely, Vasuben Trivedi was to preside over the said Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Mar 11 00:26:57 IST 2017 R/CR.MA/20278/2015 ORDER function of 'Ras Garba'. Many other dignitaries were present in the function, including the Mayor of the Corporation, the President of the City BJP, the Chairman of the Standing Committee, etc. At that point of time, a mob of about ten to twelve persons came over there and started creating trouble. They wanted the programme of 'Ras Garba' to be wound up. They started chanting slogans of 'Jay Sardar, Jay Patidar'. They started shouting that stop the drama. The entire altercation was being recorded by the son of the first informant in his camera. It is alleged that the accused persons herein took away the camera mobile phone from the hand of the son of the first informant valued at Rs.15,000/ and one Atul Bhandari (coaccused) started hurling abuses and caught hold of the right hand of the first informant and told her to come with him. It is alleged that only with a view that create recuse in the function, the accused persons behavioured in a highhanded manner, and thereby committed the offence. It is the case of the first informant that the accused persons created recuse only with a view to pressurise the government to release of those persons, who are arrested in the agitation for reservation and also for claiming reservation.
3 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 any offence of dacoity punishable under Section 395 of the Indian Penal Code and offence of outraging the modesty of a woman punishable under Section 354D of the Indian Penal Code could be said to have been made out.
4 Even if I accept the entire case putup by the first informant, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the Indian Penal Code are spelt out. The law in this regard is wellsettled in the case of Dharmendrabhai Nandubhai Patel Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Mar 11 00:26:57 IST 2017 R/CR.MA/20278/2015 ORDER vs. State of Gujarat reported in 2011(3) G.L.H. 739. I have explained what would constitute the offence of dacoity. I may quote the relevant observations as under:
"21 Now, in this background of the entire prosecution case and the evidence on record, can it be said that the common object of the unlawful assembly was to commit an offence of dacoity. Can it be said that the motive behind the crime was commission of dacoity or whether the common object of the unlawful assembly was to thrash the first informant for the reason that he developed intimacy with Gitaben and got married with Gitaben surreptitiously without seeking any permission from the family members of Gitaben. This is the core issue which, prima facie, needs to be considered in the appeal. However, prima facie, I am of the view that without going much into appreciation of evidence the conviction under Sections 395 and 397 appears to be unsustainable. I am of the view that the Court owes a duty to consider, as to whether the accused has a fair chance of succeeding in the appeal or not ? I may consider my prima facie opinion in light of what has been explained by the Division Bench of this High Court so far as Section 390 of IPC is concerned. 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 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 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 Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Mar 11 00:26:57 IST 2017 R/CR.MA/20278/2015 ORDER 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 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 wor "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 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 Thakur, 6 C.W.N. 72, is as follows :
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R/CR.MA/20278/2015 ORDER
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 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."
5 I am also of the view that even if the entire case of the first informant is believed to be true, none of the ingredients to constitute the offence punishable under Section 354D of the Indian Penal Code are spelt out. Section 354D came to be inserted in the Indian Penal Code by Act 13 of 2013 (Section 7 with effect from 3rd February 2013). The offence is one of stacking. Section 354D reads as under:
"354D. Stalking (1) Any man who(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking;
Provided that such conduct shall not amount to stalking if the man who pursued it proves that
(i) it was pursued for the purpose of preventing or detecting crime and the Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Mar 11 00:26:57 IST 2017 R/CR.MA/20278/2015 ORDER man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine."
6 Section 354D is a cognizable offence and bailable.
7 Stalking for the purpose of Section 354D means if a man follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; then it would be constitute an offence of stacking. The allegations levelled by the first informant is that one of the coaccused at the time of the incident caught hold of her right hand, would not amount to stacking.
8 Thus, both the sections i.e. Section 395 and Section 354D of the Indian Penal Code will have no application. The incident has definitely occurred as alleged in the F.I.R. It is for the Investigating Officer to carry out the necessary investigation in accordance with law as regards the exact offence made out under the I.P.C.
9 With the above, this writ application is disposed of. The investigation shall be completed in accordance with law at the earliest. The adinterim order granted earlier stands vacated.
Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Mar 11 00:26:57 IST 2017 R/CR.MA/20278/2015 ORDER (J.B.PARDIWALA, J.) chandresh Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Mar 11 00:26:57 IST 2017