Gujarat High Court
Neela Prafulbhai Varma vs State Of Gujarat on 12 June, 2024
NEUTRAL CITATION
R/SCR.A/2550/2022 ORDER DATED: 12/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2550 of 2022
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NEELA PRAFULBHAI VARMA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANAN K PANERI(7959) for the Applicant(s) No. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 12/06/2024
ORAL ORDER
[1.0] RULE. Learned APP and party-in-person waive service of notice of Rule for respective parties. With the consent of learned advocates for respective parties, present petition is taken up for final hearing.
[2.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioner has prayed for the following reliefs:
"(A) Your Lordships may be pleased to issue a writ of certiorari or any writ or direction quashing and setting aside the judgment and order dated 25.02.2019 passed by the learned 4th Additional Sessions Judge, Bhuj-Kachchh in Criminal Revision Application No.119 of 2018 confirming the judgment and order dated 10.05.2018 passed by the learned 2nd Additional Chief Judicial Magistrate, Bhuj-
Kachchh in Criminal Inquiry No.49 of 2015 directing to register Criminal Case against the petitioner under Section 506 of the Indian Penal Code and registration of Criminal Case No.1039 of 2018 and be pleased to further quash and Page 1 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined set aside the proceedings pending against the petitioner in Criminal Case No.1039 of 2018 pending before the learned 3rd Additional Chief Judicial Magistrate, Bhuj-Kachchh against the petitioner and issuance of process dated 15.10.2018 against the petitioner;
(B) Pending the admission and final hearing of the petitioner, the Hon'ble Court may be pleased to stay the further proceedings of Criminal Case No.1039 of 2018 pending against the petitioner before the learned 3 rd Additional Chief Judicial Magistrate, Bhuj-Kachchh;"
[3.0] Heard learned advocate Mr. Manan Paneri for the petitioner, learned APP Ms. Jhala for respondent No.1 - State of Gujarat and party in person - respondent No.2.
[4.0] Petitioner was in employment of Matru Chhaya Kanya Vidyalaya, Bhuj since 2012 to 2015 and was serving as an in- charge Principal and at that time, one student viz. Bhakti Somaiya i.e. daughter of respondent No.2 herein was studying in 11 th Std. and on 31.01.2012, she came late by an hour for her board examination of Chemistry practical though she was supposed to arrive at examination centre on or before 7.30 a.m. but she reached the examination centre at 8.30 a.m. It is the case of the petitioner that as the said student was habitual late comer even at board examination, with a view to maintain discipline and decorum of board examination, the petitioner asked the said student to write an apology letter and after obtaining apology letter, said student was allowed to appear in the board's practical examination. Considering the aforesaid fact, respondent No.2 - father of Bhakti Somaiya raised an objection against the action taken by the petitioner of asking for apology letter from his minor daughter. It is further the case of the petitioner that Page 2 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined respondent No.2 got some disparaging articles published against the school management and hence, school management was constrained to issue clarification in the Divya Bhaskar, Gujarati Daily, Kachchh Edition. Being aggrieved by the same, complainant filed the complaint before the learned Chief Judicial Magistrate for the offence under Section 499 of the Indian Penal Code, 1860 (for short "IPC") being Criminal Inquiry No.41/2014 against the petitioner which came to be dismissed and said order of dismissal of Criminal Inquiry No.41/2014 was assailed by the complainant by way of Criminal Revision Application No.13/2015, which was also dismissed. It is the further case of petitioner that the respondent No.2 issued notice on 26.08.2014 to the Managing Trustee / Director of Education and in-charge Principal and Teachers of Physics, Chemistry, Biology and Computer i.e. against total 9 persons and filed one complaint before the Consumer Redressal Forum seeking compensation of Rs.1 Crore on the ground that his daughter Bhakti Somaiya was arbitrarily given one mark i.e. 0.33% less in the practical examination of Board because of which she could not secure admission in MBBS Course. The complainant also filed civil suit being Special Civil Suit No.65/2015 in the Court of learned Principal Senior Civil Judge, Kachchh, at Bhuj seeking compensation of Rs.5 Crore on the same set of facts. The complainant also filed another litigation being Criminal Inquiry No.36/2015 for the offence under Sections 166 and 219 of the IPC before the Court of learned Chief Judicial Magistrate, Bhuj against the present petitioner. That, vide order dated 29.04.2016, said complaint came to be dismissed on the ground that no prima facie case is made out. Being aggrieved and dissatisfied, complainant assailed the said order by way of filing Criminal Revision Application Page 3 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined No.74/2016 which was also dismissed. Thereafter, complainant filed complaint before Bhuj City Police Station for registration of FIR against the petitioner but same was filed by the Superintendent of Police. Being aggrieved and dissatisfied, complainant filed another complaint being Criminal Inquiry No.49/2015 before the learned Chief Judicial Magistrate for the offence under Sections 166 and 219 of the IPC and submitted purshis to add certain sections and pursuant to that, sections 503, 506 and 511 of the IPC came to be added in the said criminal inquiry. Learned 2nd Additional Chief Judicial Magistrate, Bhuj vide order dated 10.05.2018 allowed the criminal inquiry and directed to register the criminal inquiry as criminal case against the petitioner for the offence under Section 506 of the IPC. Further, during the pendency of the Criminal Inquiry No.49/2015, complainant filed another Criminal Inquiry Nos.52/2015, 61/2015, 62/2015 and 63/2015 on the same set of facts and same cause of action for the offence under Sections 166 and 219 of the IPC which were dismissed on 13.01.2017 as no case was made out and no sufficient ground to proceed with the complaint against the petitioner. The petitioner assailed the order dated 10.05.2018 before the learned Sessions Court by way of Criminal Revision Application No.119/2018 which was allowed on 25.02.2019 by the learned 4th Additional Sessions Judge, Bhuj- Kachchh. Being aggrieved and dissatisfied with the said orders, present petition is being filed.
[5.0] Learned advocate for the petitioner has assailed the impugned orders on the ground that the respondent No.2 has abused the process of law and on similar set of facts, second complaint came to be registered though no case is made out. The Page 4 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined action on the part of complainant is nothing but an arm twisting exercise with a view to extort money from the petitioner by resorting to unlawful means. No offence is made out under Section 506 of the IPC inasmuch as basic ingredients of section 503 of the IPC for constituting the offence under Section 506 of the IPC "criminal intimidation" are not satisfied. Learned Magistrate has also committed an error in taking the cognizance after delay of more than three years. Further, no any action or intent on the part of the petitioner to cause alarm to the present petitioner being a Teacher to inculcate discipline in students the apology letter was taken from the student. There was no any threat or no any intention to cause any alarm or administer the threat or intimidate the student i.e. daughter of respondent No.2. Hence, no prima facie offence is made out. Hence, he has requested to allow the present petition.
[6.0] Party in person - complainant has opposed the present petition and submitted that the offence is made out and learned Magistrate has rightly taken the cognizance and issued the process against the accused and learned Revisional Court has also considered the fact that there is no delay on the part of respondent No.2 for getting the copies under the Right to Information Act as the petitioner and school management have taken long time in providing copies and thus the delay is caused and there was no intention on the part of the complainant. Further, though the daughter of complainant was minor, her apology letter was obtained under threat and intentionally one mark i.e. 0.33% less was given so that daughter of complainant cannot secure admission in MBBS Course. Hence, he has requested to dismiss the present petition.Page 5 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024
NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined [7.0] Adopting the submissions made by the party in person - complainant, learned APP has also opposed the present petition and submitted that this is not a stage to appreciate the evidence and even prima facie both the Courts below have come to a conclusion that offence is made out against the petitioner and therefore, no interference of this Court is required and has requested to dismiss the present petition.
[8.0] I have given thoughtful consideration to the arguments canvassed by the respective parties and have gone through both the impugned orders.
[9.0] It appears from the record that the present petitioner is working as a Teacher in Matru Chhaya Kanya Vidyalaya, Bhuj since 2012 to 2015 and when was serving as in-charge Principal of the said school, on 31.01.2012, daughter of respondent No.2 herein who was studying in 11th Std., came for her board's practical examination of chemistry at 8.30 a.m. i.e. late by an hour though she was supposed to arrive at examination centre on or before 7.30 a.m. With a view to maintain discipline amongst students, said student was allowed to appear in her examination by taking apology letter from her. Thus, it is clear even from the version of the complainant that daughter of complainant was allowed to appear in the examination. The second grievance of the complainant is that daughter of respondent No.2 was intentionally given one mark i.e. 0.33% less because of which she could not secure admission in MBBS course. But, perusing the record there is no any material which shows that one mark i.e. 0.33% was given less with any malafide intention. If the intention of the petitioner was to cause any injustice to the daughter of Page 6 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined the complainant then the petitioner could have failed the daughter of complainant rather than to give one mark less. Hence, the allegation of the complainant that there was ill- intention of the petitioner in giving one mark less to his daughter is without any basis. Further, the petitioner cannot be said to have any idea about the cut-off marks as regards admission in MBBS Course and therefore also, the allegation of malafide intention on the part of the petitioner is without any basis and a bald allegation.
[9.1] Even otherwise no offence is made out under Sections 166 and 219 of the IPC and cognizance is taken only for the offence under Section 506 of the IPC. To make an offence under Section 506 of the IPC, it is worth to refer to provisions of sections 503, 504 and 506 of the IPC which read 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.
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.Page 7 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024
NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined Section 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 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."
In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Mohammad Wajid & Anr. vs. State of U.P. & Ors. reported in 2023 INSC 683. The Hon'ble Apex Court in paragraph No.27 of the said judgment has observed and held as under:
"27. A bare perusal of Section 506 of the 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 the accused had an intention to cause alarm to the complainant."
[9.2] In view of the above, no any offence is made out. A bare perusal of the complaint and averments made in the complaint as well as the order taking cognizance no offence is made out under Section 506 of the IPC. Nonetheless, present petitioner is a Teacher and being a Teacher it is the solemn duty of the teacher to instill discipline in students and it is not uncommon that teachers reprimand a student for not being attentive or not being upto the mark in studies or for bunking classes or not attending the school. In the present case, disciplinary measure Page 8 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined was adopted by the petitioner and other teachers of the school as the daughter of respondent No.2 was habitual late comer and irregular in the school and therefore, she was reprimanded and apology letter was taken from her simply to reprimand her for her act of indiscipline and such a simple act of reprimand of a student for her behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student. Considering the aforesaid fact, act on the part of the petitioner to ask for apology letter from the daughter of the complainant was nothing but a correctional measure with a view to maintain discipline and decorum in the school.
[10.0] It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Page 9 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 and in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(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 engrafted 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 mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance Page 10 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024 NEUTRAL CITATION R/SCR.A/2550/2022 ORDER DATED: 12/06/2024 undefined on the accused and with a view to spite him due to private and personal grudge."
[10.1] Considering the aforesaid proposition in consonance with the facts of the case on hand, it is established that no case is made out to prosecute the present petitioner for offence under Section 506 of the IPC. Hence, present is a fit case to exercise powers under Section 482 of the Cr.P.C..
[11.0] In wake of aforesaid discussion, present petition is allowed. Impugned judgment and order dated 25.02.2019 passed by the learned 4th Additional Sessions Judge, Bhuj-Kachchh in Criminal Revision Application No.119 of 2018 as well as the judgment and order dated 10.05.2018 passed by the learned 2nd Additional Chief Judicial Magistrate, Bhuj-Kachchh in Criminal Inquiry No.49 of 2015 as well as the Criminal Case No.1039 of 2018 pending before the learned 3 rd Additional Chief Judicial Magistrate, Bhuj-Kachchh against the petitioner and issuance of process dated 15.10.2018 against the petitioner are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
(HASMUKH D. SUTHAR, J.) Ajay Page 11 of 11 Downloaded on : Thu Jun 13 21:34:42 IST 2024