Gujarat High Court
Eesa Nur Mohammad @ Dafer Sindhi vs State Of Gujarat on 14 June, 2024
NEUTRAL CITATION
R/CR.MA/15215/2019 ORDER DATED: 14/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15215 of 2019
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EESA NUR MOHAMMAD @ DAFER SINDHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR SOAHAM M JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 14/06/2024
ORAL ORDER
1. Rule returnable forthwith. Mr. Soaham Joshi, the learned APP waives service of notice of rule for and on behalf of the respondent - State of Gujarat. The respondent no.2 although served with the notice issued by this Court, yet has chosen not to appear before this Court either in person or through an advocate to oppose this application.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court praying for quashing of the F.I.R. being C.R.No.II-23 of 2012 filed before the Mangrole Police Station, District-Surat Rural for the offence punishable under Sections-323, 504, 506(2) and 114 of the I.P.C. read with Section 3(1)(x) of The Schedule Castes & Tribes (Prevention of Atrocities) Act, 1989.
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3. The case of the prosecution can be summarized as under:-
3.1 It is the case of the prosecution is that on 30.05.2012 at about 7:30 a.m. in the morning, the complainant had gone to the house of Kashmiraben for the purpose of doping domestic work and at around 09:30 a.m. in the morning, she had gone out to throw the garbage and at that relevant point of time, the accused no.1 had come and scolded the complainant to go away from the place and not clean up the said area and she was also pushed by the applicant - accused. After hearing the above said convocation, accused no.2 had come at the place of occurrence and he has alleged to use abusive language and also gave threat to kill to the complainant as well as Kashmiraben. On the strength of above stated factual aspect, FIR came to be registered by the complainant against the accused persons.
4. Mr. Vaibhav Sheth, learned advocate appearing for the applicant submits that immediately after the registration of the FIR, the present applicant - accused has approached this Court and after considering the factual aspect available in the matter, the Co-ordinate Bench of this Court has passed order of issuance of notice, whereas, the accused no.2 has immediately approached this Court, wherein, a co-ordinate bench of this Court has passed the specific order that no coercive action should be taken against the accused persons, however, investigation was directed to be carried out.
Thereafter, the proceedings qua the accused no.1 had been Page 2 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined quashed and set aside by the co-ordinate bench of this Court. He produced the copy of the said order and put reliance upon the certain observations made by this Court at the time of passing of order, which are as under:-
"3. Mr. Hardik Dave, learned advocate for the applicant has submitted that previously statement of the complainant Nankiben i.e. respondent no.2 was recorded by the police with regard to the said incident occurred on 30/05/2012 wherein she has clearly and categorically stated that on the day of incident, there was altercation between Kashmiraben and the present applicant Fali Barjorji Munshi and nothing had happened to the complainant Nankiben and no derogative words were spoken concerning the caste and community of the complainant and on that day, the incident took place for removal of pieces of glass. He has further submitted that after for about seven days of the incident, the above mentioned complaint has been lodged before the police involving the applicant for the offence punishable under Section 323, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act which are concocted one and from the statement of complainant herself dated 03/06/2012, the belated complaint was lodged after seven days of the alleged incident and therefore, he prays to quash and set aside the compliant as such.
6. In view of the aforesaid nature of investigation, on perusal of papers of investigation, it is clearly revealing that the present complaint is after thought and contrary to the statement of Nankiben dated 03/06/2012 and no offence under Section 323, 504, 506(2) read with Section 114 of the Indian Penal Code Section 323, 504, 506(2) read with Section 114 of the Indian Penal Code as well as Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is revealing."
5. Learned advocate further submits that so far as role of the present applicant- accused is concerned, as per the case of Page 3 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined the prosecution, the present applicant - accused had pushed the complainant, except that, no any specific role is attributed to the present applicant - accused. As per the case of the prosecution, the person who has used the abusive language and make fight as well as administered threat to the complainant, the proceedings against the said accused persons has already been terminated by the co-ordinate bench. The role of the present applicant - accused is lesser than the said accused person.
6. Considering the above stated factual aspects, the proceedings instituted against the present applicant - accused is required to be quashed and set aside.
7. Learned APP Mr. Soaham Joshi appearing for the respondent - State has objected the present application with the vehemence and submitted that the Hon'ble Court would make cursorily glance upon the operative part of the FIR, in that event, it is found out that the basic ingredients to constitute the offence is clearly found out. Hence, the present proceedings instituted against the present applicant is not required to be quashed and set aside.
8. Now, I would like to refer to the decision of the Hon'ble Apxe Court in the case of Vikram Johar v. State of Uttar Pradesh and another, reported in AIR 2019 Supreme Court 2109, wherein the Hon'ble Apex Court has observed that for the purpose of invoking the provisions of Section 504 IPC, the basic ingredients are required to be satisfied, which Page 4 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined are (i) intentional insult, (ii) the insult must be such as to give provocation to the person insulted, and (iii) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The following ingredients are required to be satisfied so as to invoke the provisions of Section 506; (i) that the accused threatened some person, (ii) that such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; and (iii) that he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.
A plain reading of the allegations in the FIR in question, in the opinion of this Court, does not satisfy all the aforesaid basic and essential ingredients so as to invoke the provisions of Section 504 and 506(2) of the Indian Penal Code against the applicant.
9. The Coordinate Bench of this Court, in the case of Dineshbhai @ Mukeshbhai Jitabhai Patel v. State of Gujarat & another, vide judgment and order dated 05.04.2016 passed in Special Criminal Application No.4481 of 2014, observed and held as under:
"14 The second question that falls for my consideration is whether the offence punishable under Sections 504 and 506(2) of the I.P.C. could be said to have been made out.Page 5 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024
NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined 15 Section 504 of the I.P.C. contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the section merely because the insulted person did not actually break the peace or commit any offence having exercised self control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, I.P.C., the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, I.P.C. if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, I.P.C. If he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:
To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds Page 6 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined In Guranditta v. Emperror, AIR 1930 Lah 344 (2): (32 Cri. LJ 62), it was observed that in dealing with a case under Section 504, I.P.C. the court should try to find out what in the ordinary circumstances would have been the effect of abusive language used. Pichai Pillai v. Ramaswamy Ayyangar (1941) 42 Cri. LJ 48) (Mad.) relied on by the learned Magistrate is no authority for any proposition that no offence is committed under Section 504, I.P.C. by the accused if he uses abusive language against the complainant. In that case there was a discussion between the accused Bill Collector and the complainant in regard to the amount due by the complainant towards tax collectable by the Bill Collector. In the course of that discussion, the Bill Collector shouted against the complainant saying shameless fellow, I will shoe you. The details of the discussion and the exact circumstances leading to the shouting by the accused are not available from the brief judgement reported. It is also not known as to where exactly the occurrence took place in that case. (vide Karumanchi Veerangaiah vs. Katta Mark & Ors., 1976 Cr. LJ 1690) 16 In the case of Ronak Ashok Kedia v. State of Gujarat [Criminal Miscellaneous Application No.4145 of 2012 decided on 19th November, 2014], I have explained as to what would constitute the offence punishable under Section 506(2) of the I.P.C. I may quote the observations made in paras 10, 11 and 12 as under:
"10. 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.Page 7 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024
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11. 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.
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.
12. A bare perusal of Section 506 IPC 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 Page 8 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined 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."
10. Now, before dwelling into the issue involved in the matter, I would like to refer to the decision of Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana and Another, reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:
"20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
xxx xxx xxx
23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."Page 9 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024
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11. It is well settled that where the Court finds that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and/or where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, in that event, the Court should exercise inherent powers under Section 482 of the Code by quashing the FIR/complaint. Here in the instant case, from the bare reading of the contents of the FIR in question, it transpires that no offence much less the offence under Sections 504 and 506(2) are made out against the applicant accused. Thus, from bare perusal of the FIR itself, none of the ingredients to constitute the alleged offence are spelt out.
12. At this juncture, I would like to refer and rely upon the decision of the Hon'ble Apex Court in the case of Mahmood Ali and Others Vs. State of U.P. and Others reported in 2023 SCC OnLine SC 950, wherein, the Hon'ble Apex Court has held as under:-
"11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are:-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their Page 10 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar en-grafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
12. We are of the view that the case of the present appellants falls within the parameters Nos.1, 5 and 7 resply of Bhajan Lal (supra).
13. At this stage, we would like to observe something Page 11 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an Page 12 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined FIR. The Court held:-
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 :
1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6) (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.
That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, Page 13 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024 NEUTRAL CITATION R/CR.MA/15215/2019 ORDER DATED: 14/06/2024 undefined needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....." (Emphasis supplied)
13. In the facts and circumstances of the case, it is found out from bare perusal of the FIR that the FIR is filed against total two accused persons. The main accused i.e. Faramroj Barjorji Munshi (Fali Barjorji Munshi), who had already preferred quashing petition and after considering the allegations levelled against him, a Co-ordinate Bench of this Court has already quashed the proceedings instituted against him. So far as the allegation levelled against the present applicant is concerned, he has given push to the complainant at the time of incident, except that, no any other specific role is attributed to him.
14. For the foregoing reasons, I am inclined to allow this application and the same is accordingly allowed. The F.I.R. being C.R.No.II-23 of 2012 filed before the Mangrole Police Station, District-Surat Rural is hereby ordered to be quashed so far as the present applicant is concerned. All consequential proceedings pursuant thereto shall stand terminated.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(DIVYESH A. JOSHI,J) A. B. VAGHELA Page 14 of 14 Downloaded on : Fri Jun 28 21:34:57 IST 2024