Gujarat High Court
Nitinkumar Harshadbhai Patel vs State Of Gujarat on 29 June, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7933 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NITINKUMAR HARSHADBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SHAILESH C SHARMA(3450) for the Applicant(s) No. 1,2,3
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR HEMANT MAKWANA(3622) for the Respondent(s) No. 2
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 29/06/2022
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short), the petitioners have prayed for following reliefs:
Page 1 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 "[A] Your Lordships may be pleased to admit and allow this Misc. Criminal Application. [B] Your Lordships may be pleased to quashing and setting aside criminal complaint being in connection with F.I.R. being I- 11204039200613 of 2020 registered with the Mahuda Police Station, Kheda and proceeding emanating there from for the offence under section under section 3(1) r, 3 (1) s, 3(2) (va) ns of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 504, 506(2), 114 of the Indian Penal Code on any appropriate terms and conditions in the interest of justice.
[C] Your Lordships may be pleased to pending admission, hearing and final disposal of this application to stay further investigation and proceeding in said F.I.R. being in connection with F.I.R. being I - 11204039200613 of 2020 registered with the Mahudhah Police Station, Kheda in the interest of justice.
[D] Grant ad-interim relief in terms of para-B above.
[E] Be pleased to grant such other and further reliefs, which may be deemed fit just and proper in the interest of justice."
2. With the consent of all the parties, the matter is taken up for final hearing. Hence, Rule. Learned advocates appearing for the parties waive service of notice of Rule on behalf of their respective parties.
3.1 It is the case of the petitioners that in the year 1983 Page 2 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 a piece of the land situated at Block No.631, Village:
Bhumas, Mahudha Taluka, Dist.Kheda was purchased by the father and the uncle of the petitioner no.3 viz. Vitthalbhai Chaturbhai Patel, by way of registered sale- deed 01.07.1983 from Khanabhai Lavjibhai - original complainant and Kanabhai Lavjibhai - brother of the original complainant.
3.2 As per the say of the petitioners, initially the mutation entry was not mutated in favour of the present petitioners in 7/12 abstracts and once it was mutated, the respondent challenged the said mutation entry. Even thereafter also there was some dispute regarding the very land between the present petitioners and Respondent No.2 and his family members. Because of the said land disputes, revenue proceedings took place between the parties before various Revenue Authorities and ultimately the Secretary, Revenue Department held the dispute in favour of the present petitioners.
3.3 It is the case of the petitioners that a Civil Suit in respect of same land was also preferred by the respondent before the Civil Court at Mahudha being Civil Suit No.31 of 2012. However, the same was withdrawn on 19.07.2014.Page 3 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022
R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 3.4 It is also the case of the petitioners that despite the petitioners having been succeeded everywhere, as the possession of the land was not given by the respondent to the petitioners, the petitioners ultimately sold the land to some third party by way of registered sale-deed. Once the petitioners sold the land by way of registered sale-deed No.288/20 dtd.06.08.2020 for consideration of Rs.11,35,987/- and mutation entry No.3964 was mutated giving effect to the sale, the Respondent No.2 filed a complaint against the petitioners.
3.5 The Respondent No.2 by way of complaint dtd.20.10.2020 registered the FIR No. I - 11204039200613 of 2020 with the Mahudha Police Station against the petitioners for offences under Sections 504, 506(2) and 114 of the Indian Penal Code and Section 3(1) (r), 3 (1) (s) and section 3 (2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 ('Atrocities Act', for short). In the FIR registered by Respondent No.2 on 20.10.2020 for an alleged offences which was committed on 05.08.2020 wherein the complainant has stated that though in the year 1983, a land bearing old Survey No.631, Block No.747 having Khata No.1227 admeasuring Hec.- Are. - Sq Mtr. 1- 03 - 20, situated at village Bhumas being ancestral land was sold to the father of the Page 4 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 Respondent No.3, however, since the land was part of block of consolidated lands, in the revenue records the land could not be mutated in the name of the petitioners and the name of the complainant continued to be there in the revenue record. The land was being cultivated by the complainant and in the year 2012 he took over possession of the land and was not giving any crop-share from the produce of the said land to the petitioners. As per the FIR, in respect of the very land, some civil suits were filed against each other and the possession of the land continued with the complainant as the present petitioners lost the civil litigation.
3.6 As per the complaint, on 05.08.2020 when he was cultivating the crop in his field, at that time, the petitioners came to him and abused him by uttering filthy language about his castes and threatened him to hand over the possession of the land as the land was sold to some head-strong person. While leaving, a threat to life was given to complainant. Thereafter as the talks of compromise were going on between the parties, he immediately did not file the complaint but as the compromise did not materialise ultimately the complaint was filed against the petitioners.
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4. Pursuant to the registration of the aforesaid FIR, the petitioners preferred the present petition with a prayer as stated in forgoing paras. This Court, vide order dated 09.12.2020, while issuing the notice taking note of the fact that there is delay of two months in registering the FIR as well as considering the fact that offences under the Atrocities Act are not established as the essential ingredients to bring home the charges under Sections 3(1)
(r), 3(1)(s), 3(2) (va) NS of the Atrocities Act are not established, the Court granted relief directing respondents not to take coercive steps to take action against the petitioners.
5.1 Heard learned advocate Mr.Shailesh Sharma for the petitioner. He submitted that the complaint registered against the petitioners is absolutely bogus and baseless as no such incident has ever taken place. The complaint is nothing but an attempt to pressurize the petitioners and to dictate the terms in respect of ongoing land dispute between the parties. He submitted that even if the complaint is considered to be true then also the ingredients of Sections 3 (1) (r), 3 (1) (s), 3 (2) (va) of the Atrocities Act are not established. Learned advocate Mr.Sharma submitted that as per section Sections 3 (1) (r) and 3 (1) (s) of the Atrocities Act, offences must have Page 6 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 been taken place within the 'public view'. He submitted that as far as Sections 3 (1) (r), 3 (1) (s) are concerned, as per FIR itself, there is admission on the part of the complainant that at the time when offences took place he was alone and there was no one around and, therefore, the ingredients in respect of 'public view' are not satisfied. So far as Section 3 (2) (va) of the Atrocities Act is concerned, learned advocate Mr.Sharma submitted that section 3 (2) (va) can be attracted only in case if provisions of Indian Penal Code, as specified in Schedule to the Act, is made out. In the instant case, the FIR is filed against the present petitioners under Sections 504, 506(2) and 114 of IPC. He submitted that as in the complaint, except for making allegations against the petitioners that petitioners threatened the complainant to give possession of the land or else he would be murdered, there is no material to indicate that actually there was any immediate threat from the present petitioners to the complainant. He submitted that the complaint must establish that the accused person had an intention to cause alarm of threat to the complainant and mere threat would not constitute offence under Sections 504 and 506 of Indian Penal Code.
5.2 In support of his contention of Mr.Sharma in respect Page 7 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 of offences punishable under the provisions of Atrocities Act, learned advocate Mr.Sharma relied upon the judgment of this Court rendered in the case of Dhiren Prafulbhai Shah vs. State of Gujarat and others reported in (2016) 4 GLR 2785. By relying upon the aforesaid judgment, learned advocate Mr.Sharma submitted that the ingredients of Sections 3 (1) (r) and 3 (1) (s) of Atrocities Act are not satisfied and, therefore, the petitioners should not be prosecuted in respect of complaint in question. Further, learned advocate Mr.Shailesh Sharma relied upon the judgment in the case of Jivanbhai Devjibhai Bhogayata vs. Mohanbhai Purshottam Mokariya Brahmin rendered in Special Criminal Application (Quashing) No.3927 of 2013 and allied matters whereby vide common CAV judgment dtd.10.04.2015, this Court held that before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. Mere threat given by the accused not, with an intention to cause alarm to the complainant, would not amount to constitute any offence of criminal intimidation. In respect of same proposition of Law, learned advocate Mr.Sharma relied upon the judgment dated 20.08.2019 rendered in Criminal Miscellaneous Application No.29908 of 2017 in the case of Lakhdhirbhai Laxmanbhai Rabari (Desai) vs. State of Gujarat and by relying upon the Page 8 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 aforesaid judgments learned advocate Mr.Sharma prayed for quashing of the complaint on the ground that no offence is made out against the petitioners as ingredients of Section 3 (1) r and 3(1) s are not satisfied as well as there is no alarm cause against the complainant and, therefore, there is no offence made out against the present petitioners under Sections 504 and 506(2) of the Indian Penal Code and in absence of there being any offence made out under Sections 504 and 506(2) of the Indian Penal Code, an offence under Section 3 (2) (va) of the Atrocities Act also cannot be said to have been made out.
6.1 Per contra, learned advocate Mr.Hemant Makwana appearing for Respondent No.2 - original complainant vehemently opposed the petition and submitted that it is specifically stated in the complaint itself that the petitioners had come to the field, which is the disputed land and abused the complainant by uttering bad words relating to his caste and thereby insulted and intimidated the complainant. Learned advocate Mr.Makwana further submitted that the petitioners have threatened the complainant that if he does not give back possession of the land in question, he will be murdered, which would clearly establish the offence under Sections 504 and 506(2) of the Indian Penal Code.
Page 9 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 6.2 Except the aforesaid two submissions, no other submissions were made by learned advocate Mr.Makwana nor any judgments were cited by learned advocate for the original complainant.
7. Learned Additional Public Prosecutor Ms.Maithili Mehta vehemently opposed the petition and submitted that considering the nature of offence, which is against the oppress people of the society, this Court may not exercise jurisdiction as the offence is made out against the petitioners and prayed for dismissal of the petition.
8.1 I have considered the rival submissions and noted the fact that incident allegedly had taken place on 05.08.2020 whereas the complaint was registered almost two months after the alleged dated of incident i.e. on 20.10.2020. Before considering the matter on merits, I deem it appropriate to consider the background under which complaint was filed. Even as per the complaint itself, there was some land dispute going on between the parties since the year 1983 and in the year 2012 the complainant had taken over the possession of the land and he was in possession of the land in question. In the complaint, there is mention about some civil litigation which had already taken place between the parties and in the complaint it is Page 10 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 stated that the complainant had all throughout succeeded and used to cultivate the land and, therefore, I have considered the submissions made by rival parties, keeping aforesaid facts in mind.
8.2 As per complaint, on 05.08.2020 when the complainant was cultivating his field, petitioners came there, insulted him and intimidated by uttering abusive words relating to his caste and threatened him to be killed in case if he does not give possession back of the land in question. However, in the complaint, complainant has categorically stated that at that time, since he was alone he did not utter a single word. Therefore, keeping this factual aspect in mind, now the submission of Mr.Sharma for the petitioners is required to be considered. Hence, sections 3 (1) r and 3 (1) s as well as Section 3 (2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989 are required to be considered for considering the case of the petitioners.
8.3 Both the aforesaid sections 3 (1) r and 3 (1) s are specific about the requirements of a place that the offence must have been committed in any place within the 'public view'.
Page 11 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 8.4 The aforesaid sections 3 (1) r and 3 (1) s are amended with effect from 26.01.2016 by 1 / 2016. Before amendment, section 3 (1) (x) which was analogs to Section 3 (1) (r) was as under:
"3 (a) there should be intentional insult or intimidation by a person,who is not a member of SC or ST;
(b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even fromlong association; and
(c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view"
as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present."
8.5 Now keeping this in mind, the judgments cited by learned advocate Mr.Sharma is required to be considered. In case of Dhiren Prafulbhai Shah (supra) relied upon by learned advocate Mr.Sharma, this Court, while considering Section 3 (1) (x), in paras:23 to 50 are as under:
"23. Basic ingredients for the offence under Clause (x) of Sub-section (1) of Section 3 of the Act, revealed through the bare reading of this section are as Page 12 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 follows:-
(a)there should be intentional insult or intimidation by a person, who is not a member of SC or ST;
(b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and
(c)the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view"
as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present.
24. The difficulty is only as regards the true and correct import of the expression "public view" which is used by the Legislature in contra distinction to the expression "private view". The 'View' here means sight or vision and hearing. Only meaning of the word "public" is left to be found in the context in which it is used.
25. The expression "public" is a poli-morphus word, which assumes different colours in different context. Judges and jurists have so far not found it possible to work out a complete logical definition of the words "public" universally applicable to all situations. Corpus Juris (page 844) defines "public" as under:
"PUBLIC AS A NOUN does not have a fixed or definite meaning; it is a convertible term. In one Page 13 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 sense, the "public" is everybody; and accordingly "public" has been defined or employed as meaning the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or country; the people; the whole body politic; or all the citizens of the state. In another sense the word does not mean all the people, or most of the people, nor many of the people of a place, but so many of them as contradistinguished them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighbourhood. 'B'. As an adjective 1. In General. It is said to be very difficult, if not impossible to frame a definition for the word "public" that is simpler or clearer than the word itself; a convertible term, used variously, depending for its meaning upon the subjects to which it is applied. It has two proper meanings."
26. The SC/ST Act was enacted as the laws like the Protection of Civil Rights Act, 1955 and provisions of the Indian Penal Code was found inadequate to arrest the commission of atrocities against members of Scheduled Castes and Scheduled Tribes. A specific legislation to check and deter crimes committed by the non-Scheduled Castes and Scheduled Tribe members thus became necessary. The statement of objects and reasons of the Act reads:
"Despite various measures to improve the socio- economic conditions of the Scheduled Castes and the Scheduled tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious Page 14 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded forced labour, the vested interests try to cow them down and terrorize them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on the mass, killing of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes.
27. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub- clauses (I) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub- clause(x) is the only clause where even offending "utterances" have been made punishable. The Legislature required intention as an essential ingredient for the offence of "insult", "intimidation" and "humiliation" of a member of the Scheduled Castes or Page 15 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 Scheduled Tribe in any place within "public view". Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded.
28. The plain reading of the F.I.R. filed by the first informant undoubtedly prima facie discloses various accusations against the first informant by the applicant in the name of the Schedule Castes and Schedule Tribes. It also prima facie discloses abuses having been uttered by the applicant and addressed to the first informant in the presence of the wife of the first informant on the ground of the first informant being a member of the Schedule Caste. However, as rightly submitted by the learned advocate for the applicant, the F.I.R. nowhere discloses those accusations having been made in a place within the "public view". As explained by me above, the expression "within public view" has specific meaning and in order to attract the provisions of law under Section-3(1)(x) of the Atrocities Act, the acts amounting to insult or humiliation to the member of Schedule Castes or Schedule Tribes should be visible and audible to the public. Otherwise, it would not amount to an offence under the said provision of law. Considering the same and also the allegations in the F.I.R which relate to the acts by the applicant in the closed cabin of the applicant and in Page 16 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 the absence of any stranger, can hardly be said to be accusations by the applicant to the first informant "within the public view". On this count itself, the applicant is justified in contending that there was no case for recording the F.I.R. under the provisions of law comprised under Section-3(1)(x) of the Atrocities Act.
29. The contention of the learned advocate appearing for the first informant regarding the interpretation to be given to the expression "within public view" cannot be accepted. In fact, to construe the said expression in the manner the learned advocate appearing for the first informant wants me to construe, the same would virtually amount to legislate upon the said provision in the statute and that is beyond the scope of the powers of the Court. That falls entirely within the domain of the legislature. Being so, the contention on behalf of the first informant in that regard is to be rejected.
30. I am well supported in my view by two decisions of the Supreme Court (i) Asmathunnisa Vs. State of A.P. reported in 2011 Cri.L.J. 2594; and (ii) Swaran Singh and Ors Vs. State through Standing Consel and Anr. Reported in 2008 Cri.L.J. 4369.
31. In the case of Asmathunnisa (Supra), the Supreme Court considered the question whether in the absence of real aggrieved person present at that point of time, when the offence is alleged to have occurred, could it be said that such person was insulted "within public view". The Supreme Court took notice of the Kerala High Court decision in Para-9, which reads as under:-
9. In this connection, learned counsel for the Page 17 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 appellant has placed reliance on a judgment of the Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan and others, 1997 Cri LJ 2036. The relevant paragraphs of this judgment are paras 12, 13 and 18. The said paragraphs read as under:
"12. A reading of Section 3 shows that two kinds of insults against the member of Scheduled Castes or Scheduled Tribes are made punishable - one as defined under sub- section (ii) and the other as defined under sub-section (x) of the said section. A combined reading of the two sub-sections shows that under sub-section (ii) insult can be caused to a member of the Scheduled Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under sub-section (x) insult can be caused to the person insulted only if he is present in view of the expression "in any place within public view". The words "within public view", in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in sub- section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in sub-section (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his Page 18 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 premises or neighbourhood and an insult by words caused to a member of the Scheduled Castes or Scheduled Tribes "within public view" which means at the time of the alleged insult the person insulted must be present as the expression "within public view" indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in sub-section (ii) or would have used the expression "in any public place".
13. Insult contemplated under sub-section (ii) is different from the insult contemplated under sub-section (x) as in the former a member of the Scheduled Castes or Scheduled Tribes gets insulted by the physical act and whereas in the latter he gets insulted in public view by the words uttered by the wrongdoer for which he must be present at the place.
xxx xxx xxx
18. As stated by me earlier the words used in sub-section (x) are not "in public place", but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner."
32. In Para-10, the Supreme Court reached to the following conclusion, which in my opinion clinches the issue in hand. Para-10 reads as under:-
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10. The aforesaid paragraphs clearly mean that the words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.
33. As clarified by me the issue was little different before the Supreme Court, but the ratio that is discernable is that the "insult" if any, must be viewed by the "public".
34. The legal position would become more clear considering the ratio of the decision in the case of Swaran Singh Case (Supra).
35. In Swaran Singh's Case (Supra) the facts are that the complainant was working as a car driver under one Shri Umesh Gupta. He belonged to the Khatik caste. He used to stand near the car parked at the gate. His grievance was that every now and then Smt. Simran Kaur and her daughter while passing through used to abuse him by his caste. On 10.12.2014, in the morning while he was cleaning the car, both the mother and the daughter threw dirty water on him and abused him on his caste which was witnessed by the guard of the apartment and one another driver. While drawing distinction between public place and a place within public view, the Apex Court held as follows:-
36. I may quote the observations made in Para-27 and 28 as under
27. Learned counsel then contended that the Page 20 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 alleged act was not committed in a public place and hence does not come within the purview of section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression 'public place', but instead the expression used is 'in any place within public view'. In our opinion there is a clear distinction between the two expressions.
28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by 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 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, Page 21 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 and not by private persons or private bodies.
37. Ultimately, in Para-34, the Supreme Court concluded by observing as under:-
34. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant no. 1.
38. The learned counsel for the applicant has also drawn my attention to a judgment of the Supreme Court in the case of 'Gorige Pentaiah v. State of Andhra Pradesh and others reported in (2008) 12 SCC 531 : (2008 AIR SCW 6901). The relevant paragraph of this judgment is as under:
"6. .. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent
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 appellant-
accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such Page 22 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 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.
39. Although it has been contended vociferously that the Court should not embark upon any inquiry as regards the truthfulness of the allegations. Yet, in the facts of the present case, more particularly, considering the inordinate delay of more than three years in lodging the F.I.R., such inquiry in my view is necessary to prevent the abuse of the process of law. I have narrated the facts in details as regards the long standing dispute between the first informant and the management of the college, which includes the applicant herein being a Principal of the College. The words were uttered as alleged in December, 2012, whereas, the F.I.R. was registered in May, 2015. So far as the allegation of continuous harassment is concerned, no specific instances have been given and more importantly, no specific words alleged to have been uttered, could be found in the F.I.R.
40. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
41. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the Page 23 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
42. I shall now consider whether the necessary ingredients to constitute the offence so far as the Section-3(1)(ix) of the Act is concerned. Section-3(1)(ix) reads thus:-
3(1)(ix) - gives, any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or Scheduled Tribe.
43. It appears that the Investigating Agency thought fit to file chargesheet for the offence punishable under Sections-3(1)(ix) of the Act on the allegations that the Page 24 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 applicant herein furnished false information to the management and pursuant to the same, the respondent no.2 was served with a chargesheet and was proceeded departmentally. In my view, Section-3(1)(ix) has no application worth the name in the case in hand. I have already discussed above that serious allegations were levelled against the respondent no.2 and in that regard, a three member Inquiry Committee was constituted by the management and at the end of a full-fledged departmental inquiry, it was held that the charges levelled against the respondent no.2 were established. Accordingly, the respondent no.2 was dismissed from service.
44. The Supreme Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists 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 justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
45. In Connelly v. Director of Public Prosecutions, 1964 AC 1254, Lord Ried at page 1296 expressed his view "there must always be a residual discretion to prevent anything which savours of abuse of process"
with which view all the members of the House of Lords agreed but differed as to whether this entitled a Court to stay a lawful prosecution.
46. A three-Judge Bench of the Supreme Court in Page 25 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 the case of 'Inder Mohan Goswami v. State of Uttaranchal' reported in (2007) 12 SCC 1: (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.
47. In the case of 'Devendra and others v. State of Uttar Pradesh and another' reported in (2009) 7 SCC 495, the Supreme Court observed as under:-
"There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."
48. In the course of my present sitting, I have come across various cases wherein the provisions of Atrocities Act are misused. I find that various complaints are filed immediately after elections, be it Panchayat, Municipal or Corporation, alleging offence under the Atrocities Act. I have no hesitation in saying that in most of the cases, it was found that the Page 26 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 F.I.R.s/Complaints were filed only to settle the score with their opponents after defeat in the elections. I have also come across various cases, wherein, private civil disputes arising out of property, monetary matters, dispute between an employee and employer, dispute between the subordinate and his superior - are given penal and the complaints are being filed either under Section 190 r/w.200 or F.I.Rs at the police station. The matter in hand is one another example of misuse of the Act. As observed by me earlier, the purpose of bringing SC and ST Act is to put-down the atrocities committed on the members of the Scheduled Castes and Scheduled Tribes. The law enforcing authorities must bear in mind that it cannot be misused to settle other disputes between the parties like the case one in hand, which is alien to the provisions contemplated under the laudable Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised over-zealously by the enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of power conferred on them.
49. Passing mechanically orders by the Court of Magistrates in complaint and/or registration of the F.I.R. at the Police Station, which do not have any criminal element, causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons the reputation of the citizen is put to stake as immediately after the said orders are passed, innocent citizens are turned as accused. One should not overlook the fact that there is Section-18 in the Atrocities Act, which imposes a bar so far as the grant of anticipatory bail is concerned, if the offence is one under the Atrocities Act. If a person is accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail under Section-438 of the Cr.P.C. on Page 27 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act.
50. In the result, this application is allowed. The further proceedings of the Special (Atrocity) Case No.27 of 2015 pending as on today in the Court of the learned Additional Sessions Judge, Bardoli arising from the F.I.R. being C.R. No.II-51 of 2015 registered with the Bardoli Police Station, District-Surat, are hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated."
8.6 Further, in the aforesaid judgment, the coordinate Bench of this Court, by considering various other judgments of Hon'ble Supreme Court, has observed that 'public view' in Section 3 (1) (x) of the Atrocities Act has to be interpreted to mean that public must be present at the time of commission of offence howsoever less the number of people to be termed as 'public' may be and that the word 'utter' must be or an act commissioning the offence must be audible or visible to the person so as to make a person felt insulted or intimidated or that someone has heard the words spoken about particular caste.
8.7 Further, as far as Sections 504 and 506(2) are concerned, this Court, vide order dtd.10.04.2015, by CAV Page 28 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 Judgment in Special Criminal Application No.3972 of 2013, in paras:15 to 17, has observed as under:
"15. 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; 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.
16.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.Page 29 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022
R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 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."
17. A bare perusal of Section 506 of the I.P.C. makes it clear that a part of it relates to a criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. Let me assume for the moment, what has been alleged in the complaint is true, even then, mere threats given by the accused, not with an intention to cause alarm to the complainant, would not constitute an offence of criminal intimidation."
8.8 Similarly, the Court while delivering the judgment Page 30 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 dated dated 20.08.2019 rendered in Criminal Miscellaneous Application No.29908 of 2017 in the case of Lakhdhirbhai Laxmanbhai Rabari (Desai) vs. State of Gujarat observed in paras:7 to 10 as under:
"7. A useful reference can be made to the judgment of the Apex Court in the case of Kishan Singh (Dead) Through Legal Heirs V/s. Gurpal Singh & Ors., reported in (2010) 8 SCC 775, more particularly Paragraph No.22 thereof.
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide :
Chandrapal Singh and Ors. v. Maharaj Singh and Page 31 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 Anr., AIR 1982 SC 1238; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604 : (1992 AIR SCW 237); G.Sagar Suri and Anr. v. State of U.P. And Ors., AIR 2000 SC 754; and Gorige Pentaiah v.State of A.P. And Ors., (2008) 12 SCC 531) : (AIR2008 SC (Supp) 634 : 2008 AIR SCW 6901)."
8. Section 503 of the IPC defines "criminal intimidation", which reads as under:
"503. Criminal intimidation.--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 threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."
9. Section 506 of the IPC prescribes for "Punishment for criminal intimidation", which reads as under:
"506. Punishment for criminal intimidation.-- 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; If threat be to cause death or grievous hurt, etc.--And if Page 32 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 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 1[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."
10. I may with profit refer to the observations made by this Court in the case of Mehul Chunibhai Choksi vs State of Gujarat, reported in 2018(1) GLR 349. This Court while examining the provision of section 503 of IPC has held thus:
"The essential ingredients The offence of criminal intimidation has been defined under Section 503 of the Indian Penal Code and Section 506 of the Indian Penal Code 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;Page 33 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022
R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022
(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. 46 A bare perusal of Section 506 of the Indian Penal Code makes it clear that a part of it 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 accused applicant, 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."
As regards the offence under section 506(2) of the IPC is concerned, no offence is said to have been established against the applicant in the present case since the contents of the FIR reveal that the alleged criminal intimidation has not caused any alarm to the complainant. It is settled proposition of law that mere threats given by the accused not with an intention to cause alarm to the complainant would not constitute an offence of criminal intimidation. The complainant has not stated that the criminal intimidation caused him such a degree of alarm and he Page 34 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 actually felt threatened that the applicant will actually cause injury to him. The delay in lodging the FIR would itself be fatal for satisfying the ingredients of section 503 of IPC, if the same is not satisfactorily explained. In the present case, the complainant has stated that since he was busy with agricultural activities, the FIR has been lodged belatedly. Such an explanation fortifies that no alarm was caused to the complainant and he actually did not feel threatened. It appears that the impugned F.I.R. has been lodged with oblique motive to wreck vengeance against the applicant due to their rivalry, hence the same is required to be quashed and set aside."
8.9 Now if the aforesaid observations are considered in light of the present offence alleged against the petitioner, when the petitioner when the complainant himself has admitted the fact that he was alone in the field as there was no one who could watch, see or hear the petitioners insulting, intimidating or using or uttering anything about the caste of the complainant. Further, though the complainant has stated that he was threatened to be killed, however, the complaint is silent about any incident which had happened prior or after the incident took place as the complaint was registered almost after two months of incident to substantiate that there was an immediate alarm caused by the petitioners to the complainant pursuant to threat.
9. In view of absence of material to show that there was any alarm, any complaint under Sections 504 or Page 35 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022 R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 506(2) of Indian Penal Code cannot sustain. Similarly, as there was no public view as required in sections 3 (1) r and 3 (1) s, the ingredients of Sections 3 (1) r and 3 (1) s are not satisfied and, therefore, complaint under those sections are not sustainable. As far as complaint under Section 3 (2) (va) is concerned, the said Section can be applicable only in case if an offence under Sections 504 and 506(2) of Indian Penal Code are made out. In view of the fact that no offence under Sections 504 and 506(2) of the Indian Penal Code are made out, even complaint under Section 3(2) (va) of the Atrocities also cannot sustain.
10. Resultantly, in view of aforesaid discussion, impugned FIR as well as all consequential proceedings are required to be quashed and set aside and the same are quashed and set aside.
11. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 36 of 36 Downloaded on : Sat Dec 24 20:02:42 IST 2022