Gujarat High Court
Sandip @ Sanjay @ Tako Chhaganbhai ... vs State Of Gujarat & on 6 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/15188/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15188 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 ?
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 ?
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SANDIP @ SANJAY @ TAKO CHHAGANBHAI UGHREJA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BHAVIN S RAIYANI, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR. SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/01/2016
ORAL JUDGMENT
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HC-NIC Page 1 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT
1. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused No.2 seeks to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.I-22 of 2014 lodged with the Shethvadala Police Station, Dist:
Jamnagar so far as section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned.
2. On 20th January, 2015, the following order was passed;
"1. Heard Mr.Harshit Tolia, learned advocate with Mr.Raiyani, learned advocate appearing for the applicant and Mr.L.B.Dabhi, learned Additional Public Prosecutor for the respondent No.1.
2. Mr.Harshit Tolia, learned advocate has relied upon the judgement delivered by Honble Apex Court in the case of Gorige Pentaiah V/s. State of Andhra Pradesh and others reported in (2008)12 SCC 531 as well as in the case of Dinesh @ Buddha V/s. State of Rajasthan reported in (2006)3 SCC 771.
3. Having heard learned advocates appearing on behalf of the respective parties and considering the aforesaid judgements, the application requires admission.
Rule returnable on 24/03/2015. Mr.L.B.Dabhi, learned Additional Public Prosecutor waives service of Rule on behalf of respondent No.1 - State of Gujarat.
Ad-interim relief in terms of Paragraph No.7(B) is granted qua the applicant only.
Direct service is permitted qua respondent No.2, be served through the concerned Police Station."
3. It appears from the allegations levelled in the first information report lodged by the prosecutrix that she was forcibly kidnapped by the accused persons which includes the Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT applicant herein who is alleged to have driven the car at the relevant point of time. It may not be out of place to state that for an incident which occurred on 22nd June, 2014, the first information report was lodged on 22nd August, 2014.
4. The allegations against one co-accused, namely, Devendrabhai Pratapbhai Solanki is that of committing rape. The allegations against the other co-accused which includes the applicant herein is that of abetting the commission of the main offence. It appears that when the first information report was registered, the provisions of the Atrocities Act were not invoked. The Circle Police Inspector of the Dhrol Circle, District: Jamnagar filed a report dated 24th August, 2014 before the Special Judge, Jamnagar for addition of section 3(2)(v) of the Atrocities Act. The short point for my consideration is whether section 3(2)(v) of the Atrocities Act is applicable even if the entire case of the prosecution is accepted as true. Section 3(2)(v) of the Atrocities Act reads as under;
"3. Punishments for offences of atrocities; (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe;
(I) to (iv).......
(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground 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 imprisonment for life and with fine;"
5. Having gone through the contents of the first information report and the other materials on record, there is not a whisper Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT of any allegation that the offence, alleged to have been committed, was on account of the prosecutrix being a member of the scheduled caste. Although, it has been vociferously argued by the learned counsel appearing for the applicant that the entire first information report is false and, in fact, the prosecutrix was in a relationship with Devendrabhai, yet I am not going into this question at this stage. I am told that charge- sheet has been filed so far as the other co-accused are concerned, but since the present petition was admitted and stay was granted, there has been no charge-sheet filed till this date against the applicant herein.
6. The point raised is squarely covered by the decision of the Supreme Court in the case of Masumsha Hasansha Musalman v. State of Maharashtra, 2000 (3) SCC 55. The Supreme Court made the following observations in para-9 as under;
"9. Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground 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 imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe.To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial Court as well as by the High Court ought to be set aside."
7. In the case of Gorige Pentaiah v. State of Andhra Pradesh & Ors., (2008) 12 SCC 531, the Supreme Court observed in para-6 as under;
"6. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
8. In the case of Ramdas & Ors. v. State of Maharashtra, (2007) 2 SCC 170, the Supreme Court observed in para-11 as under;
"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
9. In the case of Dinesh @ Buddha v. State of Rajasthan, (2006) 3 SCC 771, the Supreme Court observed in paras-14 and 15 as under;
"14. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows:
"3(2)(v): Punishments for offences of atrocities - (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
xxx xxx xxx
(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground 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 imprisonment for life and with fine;
xxx xxx xxx"
15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."
10. A conspectus of the above referred decisions makes the position of law very clear. To attract the provisions of section 3(2)(v) of the Atrocities Act, the sine qua non is that the victim should be a person who belongs to a scheduled caste or a scheduled tribe and that the offence under the Indian Penal Code is committed against such victim on the basis that such a person belongs to a scheduled caste or a scheduled tribe. In the absence of such ingredient, no offence under section 3(2)
(v) of the Act arises.
11. In the first information report, neither there is an averment that the first informant belongs to a member of a scheduled caste or a scheduled tribe nor there is any allegation that the offence alleged to have been committed was on account of the first informant being a member of the scheduled caste or scheduled tribe.
12. Even otherwise, it does not seem to be the case of the prosecution that any offence under the Atrocities Act is made out. So far as the other offences are concerned, it is for the investigating agency to complete the investigation so far as the applicant is concerned and reach to an appropriate conclusion. I have confined my examination only to the extent Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Jan 08 01:21:25 IST 2016 R/CR.MA/15188/2014 JUDGMENT of the applicability of section 3(2)(v) of the Atrocities Act is concerned.
13. In the result, this application is allowed. The first information report so far as section 3(2)(v) of the Atrocities Act is concerned, is quashed. I clarify that this shall not come in the way of the investigating agency so far as the other offences are concerned. The investigation shall be completed at the earliest in accordance with law and an appropriate report shall be filed before the competent court so far as the applicant is concerned. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) Vahid Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Jan 08 01:21:25 IST 2016