Gujarat High Court
Jayendrasinh Gajendrasinh Jadeja @ ... vs State Of Gujarat on 1 July, 2023
NEUTRAL CITATION
R/CR.MA/9073/2019 ORDER DATED: 01/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9073 of 2019
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JAYENDRASINH GAJENDRASINH JADEJA @ LALUBHA GAJUBHA
JADEJA
Versus
STATE OF GUJARAT
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Appearance:
MR JAYESH A DAVE(253) for the Applicant(s) No. 1,2,3,4
BHARATKUMAR K VIZODA(8026) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/07/2023
ORAL ORDER
1. The present application is filed for seeking following main prayers:
"(B) Quash the FIR vide C.R.No.I-28 of 2019 registered before Mundra Police Station, District- Kutch dated
2.5.2019;
(C) Pending the hearing and final disposal of this petition, be investigation pleased or to stay further the further proceedings in connection with the offence registered vide C.R.No.1-28 of 2019 registered before Mundra Police Station, District-Kutch dated 2.5.2019; (D) Be please to direct the respondent no.1 not to take Page 1 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined any coercive steps against the petitioners; (E) Pass such orders as thought fit in the interest of justice;"
2.1 Brief facts as per the case of the applicants in this application are as such that the complainant is residing at Village Beraja and she is a surpanch of Beraja Juth Gram Panchayat since last two years and her husband is doing labor work. Since last one month there was a scarcity of drinking water and water for cattle. And the above named petitioners-accused persons were putting questions and were trying to obstruct the work. And the reason was that the seat of Sarpanch was of general category and she being member of schedule cast and elected on general seat and therefore it was not liked by petitioners-accused.
2.2 It is further the case of the applicants in this applicant that on 30.4.2019 at 8 o'clock she was at her residence at that time six to seven lady members of the Panchayat came to her house and told that village people are gathered in the chowk and called her, so she told that tell them to come at her place. But they told Page 2 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined that people are gathered there and therefore you should come. So she went with them and at that time the above name petitioners-accused and more than hundred persons of different casts were gathered there, at that time the above named petitioners- accused told her that there is a water problem since last 25 days and you are doing nothing and thereby they are pressurizing her. So she called her husband at that time also and in presence of her husband also told that you cannot do anything and also told that Navalsinh of village Babia also not doing anything about water problem. At that time her husband also told that tomorrow we should go to the water department, at that time they told that there is no meaning to go to the water department. At that time the complainant told that if they will not do anything then we will do something ahead and thereafter complainant went to her house. And somebody has also recorded the video also and as the pressure created by the people she felt bed and she was feared and thought that if she will not alive then all problems will be cool and calm and the complainant consumed phenyl. And thereafter she was taken to hospital and was completely cured and therefore she filed the present complaint Page 3 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined today.
2.3 It is further the case of the applicants in this applicant that since the FIR is lodged against them and they are apprehending their arrest, and therefore the petitioners are presenting this petition u/s 482 of the code. It is further the case of the applicants in this applicant that the FIR is registered only on 2.5.2019 and the investigation is in progress and no charge sheet is submitted.
2.4 Hence, the present petition.
3. Heard learned advocate Mr. Jayesh Dave for the applicants, Mr. Bharatkumar Vizoda for the respondent No.2 and Mr. Soaham Josh, learned APP appearing for the respondent No.1 - State.
4.1 Learned advocate Mr. Jayesh Dave for the applicants has submitted that it transpires from the F.I.R. that the incident is occurred pursuant to the some problem of water supply in the village whereby the complainant being a lady Sarpanch could not resolve the Page 4 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined problem and therefore, the villagers have called to resolve the issue in appropriate manner. Due to that meeting and the normally some heated exchanges happened, she has felt that she is pressurized by the villagers and therefore, as per the tenor of the F.I.R., no offence is made out under Sections 306, 511 & 114 of the I.P.C. as well as Sections 3(1)(m), 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as such action is wrongly invoked. 4.2 He has further submitted that immediately after the said incident, she has attended the meeting of the Panchayat and also presided over the same and therefore, there is no question of attracting the Section 306 of the I.P.C. If Section 306 is not attracted, Sections 511 and 114 of the I.P.C. is also wrongly applied in the facts of the present case. He has further submitted that even Sections 3 to 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 could not have been applied in the facts of the present case. Prima facie, Section 3(1)(m) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are also applied with a view to implicate Page 5 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined persons involved representing their valid grievance before the Sarpanch. Therefore, the impugned F.I.R. is filed with a view to abuse the process of law, moreover, the element of investigation and the proximity of the incident is also prima facie missing from the F.I.R. and therefore, he has submitted that in view of the judgment of judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this is a fit case to prevent the abuse of process of law by allowing the present application.
5. Per contra, Mr. Bharatkumar Vizoda for the respondent No.2 and Mr. Soaham Josh, learned APP appearing for the respondent No.1 - State have strongly objected the submissions made at the bar by the learned advocate for the applicants and have submitted by supporting the arguments made by each other that though ingredients of Section 306 of the I.P.C. is initially applied in view of the fact that the complainant was hospitalized and considering the totality of the facts and circumstances, whereby the accused persons have pressurized her, offence is made out prima facie under Section 306 of the I.P.C. at the relevant point of time, Page 6 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined she has survived and therefore, for Section 306 of the I.P.C., the Court may pass appropriate order but still Sections 511 & 114 of the I.P.C. can be attracted in the facts of the present case. Moreover, provisions of Sections 3(1)(m), 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are also attracted in the facts of the present case as admittedly the complainant is falling from the schedule caste and is a member of the Panchyat and was obstructing her duty as a member of Panchayat and therefore, offence is made out. Therefore, they have submitted that this Court should not exercise the powers under Section 482 of the Criminal Procedure Code, which should be exercised very sparingly.
6.1 I have considered the rival submissions made at the bar. I have also considered the averments made in the F.I.R., Prima facie it transpires that the complainant - lady is serving as Sarpanch of Beraja Joth Gram Panchayat and there was severe crisis of water in that particular village due to insufficient water distribution and therefore, the present accused persons with other about hundred persons from the village have gathered Page 7 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined and the complainant was called at that place and such persons have made representation about the issue of insufficient of water distribution. At that point of time, it was also informed to the complainant that you are not willing to do anything and you are not able to do anything. On that basis, the complainant has felt bad and has consumed Finile and pursuant to that, F.I.R. is filed.
6.2.1 Sections 306, 511 & 114 of the I.P.C. read as under:
"Section 306 in The Indian Penal Code:-
306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 511 in The Indian Penal Code:-
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards Page 8 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both. Illustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.
CLASSIFICATION OF OFFENCE Punishment-- Imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both--According as the offence is cognizable or non-cognizable--According as the offence attempted by the offender is bailable or not--Triable by the court by Page 9 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined which the offence attempted is triable--Non- compoundable. comments Moral guilt and injury Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment culprit commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of section 511 require; Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602.
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NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined Section 114 in The Indian Penal Code:-
114. Abettor present when offence is committed.--
Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. 6.2.2 Sections 3 to 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read as under:
"Section 3 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:-
3. Punishments for offences of atrocities.--
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or Page 11 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined commits any similar act which is derogatory to human dignity;
(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do 'begar' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;
(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
(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 a Scheduled Tribe; Page 12 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023
NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined
(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;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
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NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;
(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment Page 14 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined for a term which shall not be less than six months but which may extend to seven years and with fine;
(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or
(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for Page 15 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined a term which shall not be less than one year but which may extend to the punishment provided for that offence.
Section 4 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:-
4. Punishment for neglect of duties.--Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year.
Section 5 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:-
5. Enhanced punishment for subsequent conviction.--
Whoever, having already been convicted of an offence under this Chapter is convicted for the second offence or any offence subsequent to the second offence, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence." 6.3 The story which is narrated does not attract. Page 16 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023
NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined undisputedly the fact that now she is alive and otherwise also, the ingredients of Section 306 is prima facie not satisfied and therefore, Section 306 is wrongly applied in the facts of the present case. 6.4 Consider the ingredients of Section 306 is not applied, question does not arise to apply Section 511 of the I.P.C. in the fact of the present. 6.5 Sections 3(1)(m), 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be applied where the punishment under the provisions of Indian Penal Code is more than 10 years. 6.6 In the facts and circumstances of the present case, when the Section 306 itself is not applicable, such Sections which are invoked by the concerned authority is found improper and even 3(1)(m) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is improper, looking to the facts and circumstances of the present case.
6.7 Section 3(1)(m) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read Page 17 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined as under:
"3(1)(m) forces or intimidates or obstructs a member of a Scheduled Caste or a Ccheduled Tribe, who is a member or a Chairperson or a holder of any other office of a Panchayat under Part IX of the Constitution or a Municipality under Part IXA of the Constitution, from performing their normal duties and functions;"
6.8 Considering the totality of the facts and circumstances of the present case, whereby the villagers have made valid representation about long pending issue of insufficient water distribution, it does not amount any instigation or any abetment. Therefore, prima facie no case is made out to proceed with the impugned offence which is mentioned in the said F.I.R. as from the facts of the F.I.R., it cannot be said that there element of the criminality is involved.
6.9 Considering the totality of the facts and circumstances of the present case, I am of the opinion that continuation of the proceeding pursuant to the said F.I.R. will amounts of the abuse of the process of law in view of the judgment of Hon'ble Supreme Court in the Page 18 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 sec.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.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and Page 19 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined 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 sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently Page 20 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined 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 on the accused and with a view to spite him due to private and personal grudge."
It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in Page 21 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(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.]
24. Inherent powers under Sec. 482 CrPC 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'. Page 22 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023
NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined 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. Discussion of decided cases."
Further, it would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Gorige Pentaiah versus State of Andra Pradesh reported in (2008) 12 SCC 531, more particularly Paras : 5 to 8 and 12 thereof, which read 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 Indian Penal Code. As far as Section 3(1)(x) of the Act is concerned, it reads as under :
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NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined "3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :-
(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."
6. In the instant case, the allegation of respondent No.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 accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.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 accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the Page 24 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined 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.
7. Similarly, we find that the ingredients of Section 506 of the Indian Penal Code are totally absent in the complaint. In the complaint it is not even mentioned that the accused had intimidated or threatened the complainant or any one else. In absence of basic ingredients of the section in the complaint, no case under section 506 IPC can be sustained. Section 506 reads as under :
"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".
8. "Criminal intimidation" has been defined in Section 503 which reads as under :
"Whoever threatens another with any injury to his person, reputation or property, Page 25 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined 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."
12. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised :
(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.
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NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined Inherent powers 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."
Further, it is also relevant to refer to the recent decision of the Hon'ble Apex Court in the case of Ramesh Chandra Vaishya versus The State of Uttar Pradesh reported in 2023 LiveLaw (SC) 469, more particularly Paras : 17 to 25 thereof, which read as under :
"17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge-sheet Page 27 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined dated 21 st January, 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three witnesses are none other than the complainant, his wife and their son. Neither the first F.I.R. nor the charge-sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any, made by the appellant were not "in any place within public view", the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present.
18. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to Page 28 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined bring it within the ambit of section 3(1)(x) of the SC/ST Act. We have noted from the first F.I.R. as well as the charge-sheet that the same makes no reference to the utterances of the appellant during the 8course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Since section 18 of the SC/ST Act bars Page 29 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined invocation of the court's jurisdiction under section 438, Cr.PC and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the F.I.R. (which is not required to be an encyclopedia of all facts and events), but at least in the charge- sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge sheet makes out a case of an offence under the SC/ST Act having been committed for 9forming a proper opinion in the conspectus of the situation before it, prior to taking cognisance of the offence. Even for the limited test that has to be applied in a case of the present nature, the charge-sheet dated 21 st January, 2016 does not make out any case of an offence having been committed by the appellant under section 3(1)(x) warranting him to stand a trial.
19. Paragraphs 15 and 16 of the decision Page 30 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined in Hitesh Verma (supra) cited by Ms. Shukla can be pressed in aid to support the view that we have taken above.
20. The second question that would engage our attention is, whether the criminal proceedings against the appellant should be allowed to be taken further in view of the appellant facing accusation of offences punishable under sections 323 and 504, IPC.
21. Section 323, IPC prescribes punishment for voluntarily causing hurt. Hurt is defined in section 319, IPC as causing bodily pain, disease or infirmity to any person. The allegation in the first F.I.R. is that the appellant had beaten up the complainant for which he sustained multiple injuries. Although the complainant alleged that such incident was witnessed by many persons and that he sustained injuries on his hand, the charge-sheet does neither refer to any eye-witness other than the complainant's wife and son nor to any medical report. The nature of hurt suffered by the complainant in the process is neither reflected from the first F.I.R. nor the Page 31 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined charge-sheet. On the contrary, the appellant had the injuries suffered by him treated immediately 10after the incident. In the counter-affidavit filed by the first respondent (State) in the present proceeding, there is no material worthy of consideration in this behalf except a bald statement that the complainant sustained multiple injuries "in his hand and other body parts". If indeed the complainant's version were to be believed, the I.O. ought to have asked for a medical report to support the same. Completion of investigation within a day in a given case could be appreciated but in the present case it has resulted in more disservice than service to the cause of justice. The situation becomes all the more glaring when in course of this proceeding the parties including the first respondent are unable to apprise us the outcome of the second F.I.R. In any event, we do not find any ring of truth in the prosecution case to allow the proceedings to continue vis-à-vis section 323, IPC.
22. What remains is section 504, IPC. In Fiona Shrikhande and Anr. vs. State of Maharashtra 7 , this Court had the occasion to hold that:
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"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient Page 33 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined by itself to warrant a conviction under Section 504 IPC."
23. Based on the facts and circumstances of the case, we have little hesitation in holding that even though the appellant might have abused the complainant but such abuse by itself and without anything more does not warrant subjecting the appellant to face a trial, particularly in the clear absence of the ingredient of intentional insult of such a degree that it could provoke a person to break public peace or commit any other offence.
24. We record that the High Court misdirected itself in failing to appreciate the challenge to the criminal proceedings including the charge-sheet in the proper perspective and occasioned a grave failure of justice in rejecting such challenge.
25. For the reasons aforesaid, we unhesitatingly hold that it would be an abuse of the process of law to allow continuation of Criminal Case No.376 of 2016. While setting aside the impugned judgment and order of the High Court, we Page 34 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined also quash Criminal Case No.376 of 2016." Further, in the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
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i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the Page 37 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to Page 38 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during Page 39 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
6.10 Therefore, this is fit case where the Court Page 40 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023 NEUTRAL CITATION R/CR.MA/9073/2019 ORDER DATED: 01/07/2023 undefined should exercise the discretion under Section 482 of the Criminal Procedure Code, 1973.
7. Accordingly, the present petition is allowed.
8. Impugned F.I.R. vide C.R.No.I-28 of 2019 registered before Mundra Police Station, District Kutch dated 2.5.2019 is quashed and set aside. Consequential proceedings, if any, arising out of the impugned F.I.R. is hereby quashed and set aside.
9. Compensation if any is received pursuant to the impugned F.I.R. under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall be refunded back to the State by the complainant and in case of default, State Government is at liberty to take appropriate, in accordance with law.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 41 of 41 Downloaded on : Sat Sep 16 20:48:46 IST 2023