Gujarat High Court
Shabbirkhan Sahebkhan Khokhar vs State Of Gujarat on 3 May, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/10911/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10911 of 2017
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SHABBIRKHAN SAHEBKHAN KHOKHAR
Versus
STATE OF GUJARAT
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Appearance:
C J GOGDA(7488) for the PETITIONER(s) No. 1,2,3,4,5
VIKAS V NAIR(7444) for the PETITIONER(s) No. 1,2,3,4,5
MR J G VAGHELA(3971) for the RESPONDENT(s) No. 2
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/05/2018
ORAL ORDER
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused, seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being CR No. I-18 of 2017 registered with the Deodar Police Station, District: Banaskantha, for the offence punishable under Sections 395, 323, 294(B) and 506(2) of the IPC.
2. I take notice of the fact that the applicant no. 1 is the husband of the respondent no. 2. The other applicants are the relatives of the husband. The FIR lodged by the respondent no.2 is extracted hereunder:-
"My name is Shainabanu d/o Jahagirkhan Husainkhan Page 1 of 8 R/CR.MA/10911/2017 ORDER Malek, aged- 26 Years, residing at Diyodar Animal Hospital, Taluka- Diyodar, (M) 90991 65227.
I dictate fact of my complaint that I along with my parents have been residing at above mentioned address and do household work. My father's name is Abdulkhan and my mother's name is Mumtaz. My uncle- Jahagirkhan Husainkhan Malek adopted me and as I brought up at his house, he is my father. My marriage was solemnized before 3 years with Sabirkhan s/o Sahebkhan Naarkhan Khokhar residing at Old Deesa. I used to visit my matrimonial house. I was treated nicely at my matrimonial house for about 10 months. Thereafter, my mother-in-law- Joraben Sahebkhan and my sister-in-laws- Sahidaben Yarakhan Chawda, Raziyaben Alamkhan used to provoke my husband by stating that your wife is inauspicious for our house. Saying such, they used to provoke my husband to beat me and torture me. In order to save my married life, I did not inform this fact to my parents. I used to bear all these silently. On 13-06-2011, as my husband beat me excessively, I returned to my parental house at Diyodar and informed all the facts to my parents.
On 26-07-2011, at about 05:00 hrs in the evening, my husband, my mother-in-law, my sister-in-law and my brother-in-law- Zakirbhai Jasubhai came to my house. At that time, my father- Jahagirkhan was not present at home. My husband told me to arrange money else I will give you divorce. I stated that I cannot arrange money as my father does not have money. Upon hearing this, my husband, my mother-in-law, my brother-in-law got provoked and abused me. They threatened me to take divorce or they would kill me. My husband started beating me. Upon hearing my uproar, my neighbors- Dolatkhan Sawalkhan and Jentibhai Bhomaji came and saved me. They persuaded them and asked them to leave. As my father returned, I informed him about the same. I along with my father have come here to lodge complaint. Hence, it is requested to initiate lawful investigation.
Fact of my complaint is true and correct."Page 2 of 8
R/CR.MA/10911/2017 ORDER
3. Prima facie, it appears to be a case of matrimonial dispute between the husband and wife. Even if I accept the entire case of the first informant as it is, in my view, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC are spelt out.
4. It cannot be said by any stretch of imagination that the common object of the unlawful assembly was to commit dacoity. What constitutes dacoity, has been exhaustively explained by this Court in the case of Pratik Jagdishbhai Thakkar and others Vs. State of Gujarat (Special Criminal Application No. 9248 of 2016), decided on 05.05.2017. I may quote the relevant observations as under:-
"32. The above takes me to consider whether the charge- sheet could have been filed for the offence under Section395 of the IPC. Section390 of the IPC explains what is robbery. Section390 of the IPC reads as under:-
390. Robbery:- In all robbery there is either theft or extortion. When theft is robbery. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery. When extortion is robbery.-- Extortion is "robbery"
if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to Page 3 of 8 R/CR.MA/10911/2017 ORDER some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child, and threatens (ci) to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying-
"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such: but it is not robbery, Page 4 of 8 R/CR.MA/10911/2017 ORDER unless Z is put in fear of the instant death of his child.
33. Section391 is with regard to the Dacoity. Section391 of the IPC reads as under:-
391. Dacoity.-When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
34. Theft amounts to `robbery', if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to `robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc. is caused at the time of the commission of the theft but for an object other than the one referred to in sec. 390, I. P. Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec. 390, I. P. Code, must Page 5 of 8 R/CR.MA/10911/2017 ORDER always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476, in the following words:
"The words `for that end' in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."
[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678]
35. In the case of Karuppa Gounden v. Emperor A. I. R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 C. W. N. 372 and King Emperor v. Mathura Thakur 6 C. W. N. 72, it has been observed at page 824 as follows :
"Now it is our duty to give effect to the words `for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The public Prosecutor has been forced to argue that `for that end' must be read as meaning in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W..N. 372. Their Lordships put the question in this way:
"It seems to us that the whole question turns upon the words 'for that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft?Page 6 of 8
R/CR.MA/10911/2017 ORDER We think not. It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
The language used in another case reported as King Emperor v. Mathura Thakur 6 C. W. N. 72 is as follows:
"The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested."
Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect t0 it and I therefore follow the decisions in those two cases.
Ordinarily, if violence or hurt etc. is caused all the time of theft, it would be reasonable to infer hat violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose.
[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678]
36. By any stretch of imagination, it cannot be said that the common object of the unlawful assembly was to commit dacoity. The act of taking away mobiles lying in the flat would not constitute dacoity."
5. Thus, the FIR which has been registered for the offence of dacoity is nothing but an absolute misuse of police machinery and it also amounts Page 7 of 8 R/CR.MA/10911/2017 ORDER to complete non-application of mind on the part of the police in invoking section 395 in these type of cases.
6. So far as the other offences are concerned, I am not inclined to interfere at this stage. Let the investigation be carried out in accordance with law.
7. With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J) Bhoomi Page 8 of 8