Gujarat High Court
Madevbhai Meghabhai Patel & vs State Of Gujarat & on 17 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/13015/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13015 of 2014
================================================================
MADEVBHAI MEGHABHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR TUSHAR CHAUDHARY, ADVOCATE for the Applicant(s) No. 1 - 2
MR JIGAR G GADHAVI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/12/2014
ORAL ORDER
1. Rule returnable forthwith. Mr. Dabhi, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1- the State of Gujarat and Mr. Gadhavi, the learned advocate, waives service of notice of rule for and on behalf of the respondent No.2.
2. The affidavit-in-reply filed by the respondent No.2 is ordered to be taken on record.
3. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused Nos. 3 and 4 seek to invoke the inherent powers of this court praying for quashing of the proceedings of Criminal Case Page 1 of 9 R/CR.MA/13015/2014 ORDER No.650 of 2014 pending in the court of the learned Chief Judicial Magistrate, Deodar, District: Banaskantha arising from a first information report being C.R. No. I-47 of 2014 lodged with the Diodar Police Station of the offence punishable under sections 323, 504, 384 read with section 114 of the Indian Penal Code, section 3(1)(10) of the Atrocity Act and section 135 of the Gujarat Police Act.
4. It appears that later on, the police filed a report and sought permission to add section 394 of the Indian Penal Code. Accordingly, the charge-sheet was filed of the offence punishable under sections 394, 323, 504 read with section 114 of the Indian Penal Code.
5. The case of the respondent No.2, the original first informant as could be gathered from the first information report is that on 20th March, 2014, when he was returning to his village from a dispensary, he stopped at a shop to buy Bidi. At that point of time, one Nagabhai Mahadevbhai Patel, the original accused No.1 and Patel Mafabhai Lumbabhai, the original accused No.2 asked the first informant to talk and, thereafter, uttered filthy words relating to the community of the first informant. It is alleged that, thereafter, both the persons laid an assault by pressing the neck of the first informant. In the meantime, the wife of the first informant, namely, Savitaben came at the spot of occurrence and intervened to save her husband. It is alleged that the accused persons hurled abuses to the wife of the first informant also. Thereafter, the accused persons left from the place of occurrence. At 6:00 O' clock in the evening, the first informant informed about the incident to his brother, namely, Punabhai.
Page 2 of 9R/CR.MA/13015/2014 ORDER His brother Punabhai suggested that they should ask the people of the village to intervene and try to explain and persuade the accused persons. It is the case of the first informant that for such reason he did not lodge the first information report immediately. On 29 th March, 2014, both the accused persons named above called the first informant at their agricultural field for the purpose of settlement. Pursuant to the same, the first informant and his wife Savitaben reached at the agricultural field of Nagabhai and Mafabhai. It is his case that at the agricultural field of the accused persons which includes the applicants herein hurled filthy abuses to the first informant and his wife and started beating them. It is alleged that a steel bar was pressed on the neck of the first informant. He has further alleged that his clothes were torn and and Rs.1320/- was taken away from his pocket. He has further alleged that his mobile got lost in the scuffle and he suspected that his mobile was also taken away by the accused persons.
6. This is the sum and substance of the first information report lodged by the first informant after a period of four days from the date of the incident.
7. Mr. Chaudhary, the learned advocate appearing on behalf of the applicants submits that the first information report is nothing but an abuse of process of law. The allegations levelled in the same are palpably false. On account of some personal animosity, the first informant went to the extent of lodging a false report. Mr. Chaudhary, the learned advocate, submits that even if the entire case of the prosecution is accepted to be true, none of the ingredients to constitute the offence under section 394 of the Indian Penal Code are spelt Page 3 of 9 R/CR.MA/13015/2014 ORDER out.
8. On the other hand, this application is opposed by Mr. Gadhavi, the learned advocate appearing on behalf of the respondent No.2-original informant and Mr. Dabhi, the learned APP, appearing on behalf of the respondent No.1-the State of Gujarat.
9. Mr. Gadhavi, the learned advocate appearing on behalf of the respondent No.2 and Mr. Dabhi, the learned APP appearing on behalf of the respondent No.1-State submit that the first information report discloses commission of a cognizable offence and the court should not embark upon an inquiry whether the allegations are true or false. It is submitted that the charge-sheet has been filed and, therefore, whatever has been stated in the charge-sheet should be presumed to be true. It is submitted that there being no merit in this application, the same be rejected.
10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that false for my consideration is whether the first information report, as a whole, deserves to be quashed.
11. It is true that while exercising inherent power under section 482 of the Code, the court should not embark upon an inquiry whether the allegations levelled in the first information report are true or false. If the first information report and the other materials on record disclose commission of a cognizable offence, then that would be sufficient to put the accused to trial. However, the question which I propose to examine in this Page 4 of 9 R/CR.MA/13015/2014 ORDER application is whether any of the ingredients to constitute the offence of robbery under 394 of the Indian Penal Code could be said to have been spelt out. It appears that the applicants and the first informant are residing in one village. It also appears that they are inimical terms on account of some dispute. The first informant is a member of a scheduled caste. The plain reading of the first information report would suggest that the incident is in two parts. The first incident occurred on 20 th March, 2014 and in the said incident, the applicants herein had no role to play. So far as the incident dated 29 th March, 2014 is concerned, their presence have been shown along with two other accused. The allegations are that the accused persons, during the scuffle, snatched away Rs.1320/- from the pocket of the first informant.
12. 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. Section 390 explains what is robbery. It explains when theft is robbery and when extortion is robbery. Section 391 explains what is dacoity. Section 392 provides for punishment for robbery. Section394 provides for voluntarily causing hurt in committing robbery. Section 394 reads thus:
"394. Voluntarily causing hurt in committing robbery:
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or Page 5 of 9 R/CR.MA/13015/2014 ORDER attempting to commit such robbery, shall be punished with a [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
13. A Division Bench of this Court in the case of Himatsing v. The State of Gujarat, reported in 1961 GLR 678 has explained in detail when theft would amount to robbery.
"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 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 Page 6 of 9 R/CR.MA/13015/2014 ORDER 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."
In 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 Kind 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, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence 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 to give effect to it and I, therefore, follow the Page 7 of 9 R/CR.MA/13015/2014 ORDER decisions in those two cases." In the last paragraph of the judgment, the Division Bench observed as under:-
"Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that 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 the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
14. If the aforesaid principle of law explained is applied to the facts of the present case, I have no hesitation in coming to the conclusion that no case of the offence under section 394 of the Indian Penal Code could be said to have been made out. To this limited extent, I am incline to accept this petition and quash the proceedings so far as section 394 of the Indian Penal Code is concerned.
15. In the result, this application is partly allowed. The invocation of section 394 of the Indian Penal Code is not justified. The charge-sheet to that extent i.e. to the extent of the offence under section 394 of the Indian Penal Code is ordered to be quashed. Section 394 IPC is ordered to be deleted from the charge-sheet. The trial shall proceed so far as the other offences are concerned. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.)
Page 8 of 9
R/CR.MA/13015/2014 ORDER
Vahid
Page 9 of 9