Gujarat High Court
Bhavesh Dhirajlal Thakkar vs State Of Gujarat & on 22 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/14192/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14192 of 2015
With
CRIMINAL MISC.APPLICATION NO. 15300 of 2015
With
CRIMINAL MISC.APPLICATION NO. 15101 of 2015
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BHAVESH DHIRAJLAL THAKKAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Applicant(s) No. 1
MR. NIRAV D TRIVEDI, ADVOCATE for the Respondent(s) No. 2
MS. PATHAK, APP in Cr.M.A. 15101 of 2015 and MS. THAKORE, APP, in
Cr.M.A. 14192 & 15300 of 2015 for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/03/2017
ORAL ORDER
1. Since the issues raised in all the captioned applications are interrelated and the prayer is also to quash the selfsame first information report, those were heard analogously and are being disposed of by this common judgment and order.
2. The applicants before me are the original accused persons, against whom, a first information report being II-C.R. No.222 of 2015 came to be registered with the 'B' Division Patan City Police Station for the offence punishable under sections 504 and 507 of the Indian Penal Code and section 3(1)
(x) of the Atrocities Act and section 33 of the Bombay Money Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER Lenders Act.
3. The case of the prosecution may be summarized as under;
3.1 The respondent No.2, namely, Alpeshkumar Pasabhai Parmar, a member of the scheduled caste, lodged the first information report stating that he was dealing in the sale and repair of the electric appliances. Over a period of time, he developed friendship with the applicants. The applicants are said to have been in the business of buying and selling old cars. The first informant had borrowed a sum of Rs.5,00,000/- at the rate of 10% interest from one Bhavesh Thakkar, i.e., the applicant of the Criminal Misc. Application No.14192 of 2015.It is the case of the first informant that a sale-deed was executed by him in favour of the accused, i.e., Bhavesh D. Thakkar of an open land situated behind his shop. According to the first informant, he used to pay Rs.50,000/- per month towards the interest. However, past two months from the date of the registration of the first information report, he could not pay the amount of interest as he was in the financial difficulty. It is alleged that the applicants threatened the first informant with dire consequences if he would not make the payment. It is also alleged that the first informant was forced to sign certain blank cheques. It is alleged that bad words were uttered relating to the caste of the first informant on mobile. On account of the stress created by the applicants, the first informant even made an unsuccessful attempt to commit suicide by consuming poison.
4. Mr. Pratik Barot and Mr. D.V. Shah, the learned counsel Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER appearing for the respective applicants, submitted that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence under the Atrocities Act are spelt out. There is not an iota of allegation as regards the uttering of bad words relating to the caste of the first informant. They would submit that in the absence of any specific allegation or any other materials on record, the charge-sheet could not have been filed for the offence under the Atrocities Act. The learned counsel submits that assuming for the moment without admitting that abusing words held by the applicants and others on the first informant that by itself will not bring the case within the ambit of the Section-3(1)(x) of the Atrocities Act. In support of their submission, they have placed strong reliance on the decision of the Honble Supreme Court in the case of Gorige Pentaiah Vs. State of Andhra Pradesh And Others' reported in (2008) 12 SCC 531, wherein the Supreme Court observed in Paras-5 and 6 as under:-
5. Learned counsel appearing for the appellant submitted that even if all the allegations incorporated in the complaint are taken as true, even then, no offence is made out under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) and under Sections 447, 427, 506 of the Penal Code, 1860. As far as Section 3(1)(x) of the Act is concerned, it reads as under:-
3. Punishments for offences of atrocities. - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(i)-(ix) ***
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;Page 3 of 10
HC-NIC Page 3 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER
6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the 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 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 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."
5. On the other hand, all the three applications have been vehemently opposed by Ms. Pathak and Ms. Thakore, the learned APPs appearing for the State. Both the learned APPs submitted that a prima facie case is made out against the applicants and the police should be permitted to complete the investigation.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any offence under the Atrocities Act could be said to have been made out.
7. Having regard to the nature of the allegations levelled in the first information report and the other materials on record, I have no hesitation in coming to the conclusion that uttering of bad words relating to the caste on mobile would Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER not constitute an offence punishable under section 3(1)(x) of the Atrocities Act. The issue is squarely covered by the decision of the Supreme Court in the case of Gorige Pentaiah (supra) referred to above. So far as the other offences are concerned, the investigation may proceed further in accordance with law and be completed. I may only say that so far as the offence punishable under sections 504 and 507 of the Indian Penal Code is concerned, the Investigating Officer shall consider the judgment of this Court in the case of Deni @ Lalo Vikramsinh Punamsinh Khant & Ors., 2014(2) GLH 368, more particularly, the observations made by the Court in paras-45, 46, 47 and 48. I may quote the same as under;
"45. The Section contemplates intentionally insulting a person and thereby provoking such person insulted to break 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 of the Indian Penal Code, 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 diosyncrasy or cool temperament or sense of discipline. It is the Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER 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 of the Indian Penal Code, 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 of the Indian Penal Code, if he merely uses abusive language against the complainant.
46. In this context, we may quote with profit a decision of this Court in the matter of Dadia Ottamchand Motichand and another v. Hemkunver Popatlal, reported in 1961 (Vol.II) GLR 196, wherein this Court has held that :
The insult, (which is one of the ingredients of the offence) may be by words or by conduct. Abusive words may amount to an offence under Section 504 Indian Penal Code, if other ingredients are present. If the other ingredients are not present, mere abuses would not amount to an offence under Section 504, I.P. Code.
It is an important ingredient of the offence under Section 504 I.P.C. that in addition to intentional insulting, the person insulting must thereby give provocation to another person insulted to break the public peace or to commit any other offence.
47. We may also refer to one other decision of this Court in the matter of Patel Narottam Tulsidas v. State of Gujarat, 1973 GLR 522. In the said decision, the Court took the view that mere abuse is not sufficient to prove Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER the act within the meaning of Section 504 of the Indian Penal Code. The intention to provoke any person to break piece is essential. The following observations of the Court are worth noting :
2. In order to enable the court to decide whether, particular words used by the accused were likely to give provocation to Murlidhar so as to cause him to break the public peace or to commit any other offence as contemplated by Section 504 of the Indian Penal Code, it was necessary for the prosecution to point out the actual words used by the accused. In the present case, however, as stated by the learned Additional Sessions Judge, the prosecution did not disclose the actual words used by the accused. It appears that there was exchange of abuses between Murlidhar and the accused and there is no material on the record from which the court can decide that, the abuses given by the accused were in fact, filthy or indecent as alleged by the prosecution. It is true that, in order to constitute intentional insult with intent to provoke breach of the peace or with requisite knowledge, as contemplated by Section 504 of the Indian Penal Code, it is not necessary, that abuse should be filthy or indecent. But, in the present case, as pointed out by the learned Additional Sessions Judge, there is no satisfactory evidence on the record to show that, the accused had abused Murlidhar with the intention of insulting him in order to give him provocation to break the public peace. Mere abuse in the absence of any intention to provoke any person to break the public peace or to commit any other offence or, of knowledge that, a breach of the peace was likely, does not fall within Section 504 of the Indian Penal Code.
48. We may refer to one more decision on this point of a Division Bench of the Bombay High Court in the case of Philip Rangel v. Emperor, AIR 1932 Bombay 193. His Lordship Beaumont, C.J. made the following observations, which are worth noting :
Now the accused is prosecuted under Section 504 of the Indian Penal Code, and in order to constitute an offence under that section it is necessary to show that the Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER accused intentionally insulted and thereby provoked some person intending or knowing it to be likely that such provocation would cause him to break the public peace or commit any other offence. So that first of all there has got to be an intentional insult, and that insult has got to be intended or known to be likely to provoke a breach of the public peace or some other offence. We are not concerned with any breach of good manners. Of course the accused in using the expression he did was guilty of bad manners, and I have no doubt that when he recovered his temper he recognised that, and was sorry for it. Nor are we concerned with whether the accused did something for which the Chairman could call him to order. We have to consider whether he committed an offence under Section 504. Now the learned Magistrate says that undoubtedly the words are an insult, for, as he says:
"It is very vulgar abuse reflecting on the chastity of their mothers."
Well, if A calls B a bastard in circumstances which suggest that he means what he says, that no doubt does reflect on the chastity of B's mother, and nobody would suggest that it was not an insult to B. But when you find that the accused described all the members present at this meeting--we are told about forty members were present--of whose antecedents the accused presumably knew nothing at all, as bastards, it seems to me quite impossible to suppose that he meant literally that they were all persons born out of wedlock. It is much more probable that he was using a mere term of vulgar abuse. And when you find that he qualifies the description bastard by the adjective "bloody," although there is no suggestion that there was bloodshed at the meeting, it seems to me abundantly clear that this expression was not intended to be taken literally but was intended as mere abuse.
Section 504 does not make it an offence to use abusive language which may lead to a breach of the public peace. There must be an intentional insult. Now an insult may be offered by words or conduct, but in my opinion when the charge is of an insult by words, the words must amount to something more than what in English Law is called Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER "mere vulgar abuse". If abusive language is used in such circumstances that the court comes to the conclusion that it cannot possibly have been intended, and cannot have been understood by those to whom it was addressed to have been intended, to be taken literally, then I think the language cannot beheld to amount to an intentional insult. No doubt the use of abusive language may form an important part of an insult by conduct. But in this case there was nothing insulting in the accused's conduct apart from the language he used. He did not adopt a loud and insolent tone, and indeed did not intend his remark to be heard. I think therefore that there was no intention to insult. If, however, I am wrong in that, I think further that the insult, if any, was not intended or known by the accused to be likely to lead to a breach of the public peace or any other offence. It was no doubt perfectly natural for the share-holders present to recent the use of this rude language, and to call the attention of the Chairman to the conduct of the accused in using it, and it was proper for the Chairman to deal with the accused. But I cannot conceive that it was likely that the persons present at the meeting would so far lose control of themselves as to commit a breach of the public peace when they had got the chairman of the meeting in control and capable of dealing with the matter. I think the application must be allowed and the conviction set aside. The fine will be refunded."
8. In the result, all the three applications are party allowed. The first information report being II-C.R. No.222 of 2015 registered with the 'B' Division Patan City Police Station is hereby quashed so far as the offence under the Atrocities Act is concerned. For the other offences, the investigation shall be completed in accordance with law. The interim relief, earlier granted, shall continue for a period of three more weeks to enable the applicants to file an anticipatory bail application if they intend to.
Direct service is permitted.
Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Aug 15 00:17:38 IST 2017 R/CR.MA/14192/2015 ORDER (J.B.PARDIWALA, J.) Vahid Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Aug 15 00:17:38 IST 2017