Gujarat High Court
Hemant Maganlal Manek & 3 vs Hanif Nurmohammed Juneja & on 4 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/12213/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 12213 of 2014
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HEMANT MAGANLAL MANEK & 3....Applicant(s)
Versus
HANIF NURMOHAMMED JUNEJA & 1....Respondent(s)
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Appearance:
MR MAULIK NANAVATI, ADVOCATE FOR NANAVATI & CO., ADVOCATE for
the Applicant(s) No. 1 - 4
MR MAKBUL I MANSURI, ADVOCATE for the Respondent(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/01/2016
ORAL ORDER
1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.7016 of 2012 pending before the Court of the learned Additional Chief Judicial Magistrate, Court No.15, Jamnagar.
2 The facts of this case may be summarized as under:
2.1 The applicants before me are all officers of the Paschim Gujarat Vij Company Limited. The applicants Nos.1 to 3 are serving with the Electricity Company as the Deputy Engineer, Junior Engineer and Electrical Assistant respectively.
2.2 The applicant No.4 is serving with the company as an apprentice
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Linesman. It appears that the written instructions were issued dated 8th February 2012 by the Executive Engineer, CityI Division, Jamnagar of the Paschim Gujarat Vij Company Limited to the Deputy Engineer of the HT/Hapa/ Darbargadh Subdivision to undertake a checking drive in the area falling under the Darbargadh Subdivision. The object of carrying out such drive in the area was to check the instances of electricity theft.
The applicants Nos.2, 3 and 4 together with one Parbatsinh Narsinh, a member of the Police staff of the City 'A' Division Police Station, formed a team and visited Sodhawadi under the Darbargadh Subdivision. At around 11.30 a.m. in the morning, the members of the checking team reached the house of the complainant. The raiding team noticed that there was a theft of electricity by directly drawing the electric energy from the pole. It appears that the members of the checking team were manhandled not only by the complainant but also by the other members of his family, for which, the First Information Report was lodged by the applicant No.2 herein at the concerned Police Station i.e. City 'A' Division Police Station, Jamnagar vide C.R. No.I46 of 2012 for the offence punishable under Sections 342, 353 and 143 of the Indian Penal Code.
3 It deserves to be noted that the F.I.R. was lodged by the applicant No.2 herein on 8th February, 2012. The Police investigated and filed chargesheet against the complainant herein and other members of his family on 17th March, 2012.
4 On 26th April, 2012, the complainant herein thought fit to file a private complaint in the Court of the learned Chief Judicial Magistrate, Jamnagar against the applicants herein for the offence punishable under Sections 323 and 504 of the Indian Penal Code.
5 The only feeble explanation offered for such gross delay of almost more than two months in lodging the complaint is that although the Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Jan 05 23:05:00 IST 2016 R/CR.MA/12213/2014 ORDER complainant had gone to the Police Station to lodge the F.I.R., the Police declined to register the F.I.R.
6 It is the case of the complainant that the applicants herein, as members of the checking squad, misbehaved, and thereby committed the offence punishable under Sections 323 and 504 of the Indian Penal Code.
7 The learned Magistrate though fit to call for the report of the Police as the Police was investigating into the alleged incident, and after receipt of the report, thought fit to initiate inquiry under Section 202 of the Code of Criminal Procedure, 1973, and at the end of it, issued process for the offence punishable under Sections 323 and 504 of the Indian Penal Code.
8 In such circumstances referred to above, the applicants herein have come up with this application for quashing of the criminal case.
9 Mr. Mansuri, the learned advocate appearing for the complainant pointed out that against the order of process issued by the learned Magistrate, the applicants had preferred a Criminal Revision Application before the Court below which was rejected. He pointed out that such order was not challenged at any point of time, and this application has been filed directly before this Court.
10 It is not in dispute that the complainant herein was caught for the second time committing the offence of theft of electricity. It is not in dispute that there is a criminal prosecution instituted against him and other members of his family for the offence referred to above. It is very apparent that as a counter blast and with a view to save their own skin, the complainant thought fit to file a private complaint almost after a period of two months i.e. on 26th April, 2012.
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11 I have gone through the entire complaint and the allegations
levelled in the same. It appears that the complainant has levelled the allegations of demand of illegal gratification also at the end of the applicants herein, but the learned Magistrate has not taken cognizance of any offence punishable under provisions of the Prevention of Corruption Act. Although there is an allegation of causing simple hurt, there is not an iota of evidence in the form of the medical certificate, etc. There is nothing on record to show that any primary treatment was taken at any dispensary or clinic. Even if I accept the entire case of the complainant, none of the ingredients to constitute the offence punishable under Section 504 of the Indian Penal Code could be said to have been spelt out. Section 504 contemplates intentionally insulting a person and thereby provoking such person insulted to breach 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, I.P.C., 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 idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Jan 05 23:05:00 IST 2016 R/CR.MA/12213/2014 ORDER 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, I.P.C. 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, I.P.C. If he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:
To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds In Guranditta v. Emperor, AIR 1930 Lah 344 (2): (32 Cri. LJ
62), it was observed that in dealing with a case under Section 504, I.P.C.
the court should try to find out what in the ordinary circumstances would have been the effect of abusive language used. Pichai Pillai v. Ramaswamy Ayyangar (1941) 42 Cri. LJ 48) (Mad.) relied on by the learned Magistrate is no authority for any proposition that no offence is committed under Section 504, I.P.C. by the accused if he uses abusive language against the complainant. In that case there was a discussion between the accused Bill Collector and the complainant in regard to the amount due by the complainant towards tax collectable by the Bill Collector. In the course of that discussion, the Bill Collector shouted Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Jan 05 23:05:00 IST 2016 R/CR.MA/12213/2014 ORDER against the complainant saying shameless fellow, I will shoe you. The details of the discussion and the exact circumstances leading to the shouting by the accused are not available from the brief judgement reported. It is also not known as to where exactly the occurrence took place in that case. (vide Karumanchi Veerangaiah vs. Katta Mark & Ors., 1976 Cr. LJ 1690) 12 Mr. Mansuri placed reliance on a decision of the Supreme Court in the case of Fiona Shrikhande vs. State of Maharastra and another reported in (2013) 14 SCC 44 in support of his submissions. I have gone through the said decision of the Supreme Court and there cannot be any dispute as regards the principle of law explained in the same. However, the same is not applicable so far as the facts of the present case are concerned.
13 It may not be out of place to state at this stage that the Police, after an exhaustive inquiry, filed a report before the learned Magistrate stating that the allegations levelled by the complainant herein were palpably false. Despite all these, the learned Magistrate thought fit to take cognizance and issued process.
14 In the overall view of the matter, I am convinced that the complaint lodged by the complainant is nothing, but an abuse of process of law and a counter blast to the prosecution instituted against him and other members of his family.
15 In the result, this application is allowed. The further proceedings of the Criminal Case No.7016 of 2012 pending in the Court of the Additional Chief Judicial Magistrate, Court No.15, Jamnagar are ordered to be quashed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
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