Gujarat High Court
Gautambhai Dayabhai Diyora vs State Of Gujarat on 8 September, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/1733/2019 ORDER DATED: 08/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 1733 of 2019
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GAUTAMBHAI DAYABHAI DIYORA
Versus
STATE OF GUJARAT
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Appearance:
MR TULSHI R SAVANI(3070) for the Applicant(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/09/2021
ORAL ORDER
1. RULE. Mr. Pranav Trivedi, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1- State.
2. The petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C.") seeking quashment of the FIR being I-C.R. No. 20 of 2019 registered with Varachha Police Station, Surat for the offences punishable under Sections 498A, 323, 506(2) and 114 of Indian Penal Code and Sections 3(1)(r)
(s) and 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short, "the Atrocities Act") and the proceedings initiated pursuant thereto.
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3. The notice has been served to the respondent no.2, who is de facto complainant of the matter. The respondent no.2 had married with petitioner no.1 and as per the complaint the marriage was registered with Registration No.1769. The marriage was solemnized at Bhavnagar as per the Hindu customs.
4. Mr. D.P. Kinariwala, learned advocate for Mr. Tulshi R.Savani, learned advocate for the applicants stated that, the complainant and applicant no.1 has already taken divorce. The allegation that the husband, brother-in-law and his wife (Jeth-Jethani) by threatening her have taken signature forcibly on the documents of divorce on 30.09.2018. Mr. Kinariwala submitted that the said documents have never been challenged by the respondent no.2 and has remained in force and the present status of the complainant with that of the applicant no.1 is of divorcee. The divorce deed was executed before the Notary in presence of two witnesses.
4.1 Referring to the FIR, Mr. Kinariwala submitted that, the allegations are regarding matrimonial domestic issues, which are general in nature and could not attract the ingredients of Section 498A IPC. Mr. Kinariwala further stated that the sister of the complainant had committed suicide, but the allegations were against the husband of the sister of having killed her. The complainant also was harbouring the same fear. She left the house of the applicants immediately after the divorce.
Page 2 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 Still, however, in spite of the fact, Mr. Kinariwala stated that the present complaint under Section 498A and allied sections of IPC and further invoking the sections of Atrocities Act was filed, to which Mr. Kinariwala submitted that no explicit details have been given of any such casteist remarks and the vague allegations is made, which is neither in any public place nor in any public view and therefore Atrocity Act would not be applicable in the present case and no ingredients under Section 498A of IPC gets attracted in the matter.
4.2 Mr. Kinariwala, relied on the case of Dhiren Prafulbhai Shah Vs. State of Gujarat, reported in 2016 (4) GLR 2785, by emphasizing meaning of 'public view', submitted that there is no such humiliation of the complainant as being the member of Scheduled Caste and Scheduled Tribe Community. The FIR does not suggest that any such casteist remarks were made to humiliate the complainant in a public view or in a public place.
4.3 Mr. Kinariwala further relied on the decisions rendered by the Hon'ble Apex Court in case of Asmathunnisa Vs. State of A.P., reported in 2011 Cri.L.J. 2594, and in case of Swaran Singh and others V. State, Through Standing Counsel and Others, [(2008) 8 SCC 435].
5. Mr. Pranav Trivedi, learned Additional Public Prosecutor appearing on behalf of the respondent-State Page 3 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022 R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 submitted that the documents of divorce were alleged to have been executed under threat and allegations are of concocted documents. He further stated that casteist remark which has been made, has been disclosed in the FIR; thus, stated that the discretion is not required to be exercised for quashing the FIR.
6. This Court has heard the learned advocates appearing for the parties and has perused the material on record. In Swaran Singh and others V. State, Through Standing Counsel and Others, [(2008) 8 SCC 435], the Apex Court has drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building, e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building but some members of the public are there (not merely relatives or friends), then it would not be an offence since it is not in the public view. As per the allegations made in the impugned complaint, the allegations of abusing the complainant were within the four walls of his house. It is not the case of the complainant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view"
Page 4 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 is not made out. In the case on hand, none of the ingredients of the offences alleged against the applicants under the provisions of the Atrocities Act are made out even on a bare reading of the allegations in the impugned complaint.
7. It is required to be noted that the applicants had committed offences punishable under the Atrocities Act. However, none of the ingredients of the offences punishable under sections 3(1)(r)(s) and 3(2) of the Atrocities Act appear to be present in this case. The basic ingredients of the offence under Section 3(1)(r) of the Atrocities Act can be classified as (i) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within public view. The offence under Section 3(1)(r) would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Atrocities Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or a Scheduled Tribe. Another key ingredient of the provision is that the insult or intimidation should be in "any place within public view".
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8. In case of State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said judgment made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Page 6 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022 R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) 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;
(d) 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 Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code Page 7 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022 R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 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;
(g) 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."
9. The case on hand falls under category (g). In the present case, it appears that the complainant has already divorced the petitioner no.1. She had been staying at Surat and parents-in-law were staying at Amreli. She stated that she was staying with elder brother-in-law and sister-in-law at Surat. The allegations are of harassment regarding domestic work. It appears that the dispute arose because of the divorce and the defacto complainant has not challenged the divorce documents. The apprehension was also raised by the complainant stating that she may face similar situation as has arose before her sister, who had committed suicide due to matrimonial dispute. Mr. Kinariwala, stated that the applicants were also under same fear which Page 8 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022 R/CR.MA/1733/2019 ORDER DATED: 08/09/2021 has resulted into divorce. The FIR thus appears to be filed maliciously with ulterior motive. The matrimonial relation between the parties became sour. The notarized divorce agreement was executed. The respondent no.2 was served in the matter but neither appear before the Court nor has put forward any contradicting evidence.
10. In view of the discussions made hereinabove, there exists no scope for any further proceeding in the matter. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.
11. In the result, the petition is allowed. The FIR being I-C.R. No. 20 of 2019 registered with Varachha Police Station, Surat, and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicants. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 9 of 9 Downloaded on : Sun Jan 16 13:24:23 IST 2022