Gujarat High Court
Safatullakhan Asdullakhan Pathan vs State Of Gujarat & on 24 April, 2017
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/3004/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3004 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SAFATULLAKHAN ASDULLAKHAN PATHAN....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
THAKKAR AND PAHWA ADVOCATES, ADVOCATE for the Applicant(s) No. 1
HL PATEL ADVOCATES, ADVOCATE for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 24/04/2017
ORAL JUDGMENT
[1] This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) for quashing and setting aside the FIR being C.R.No.I19 of 2012 registered with Anklav Police Station qua the applicant.
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[2] Heard Mr.Haresh Joshi, learned advocate appearing for M/s.
Thakkar and Pahwa Advocates for the applicant, Mr. Vijay Patel, learned advocate for respondent No.2 - complainant and Mr.J.K.Shah, learned APP for respondent No.1 - State.
[3] Learned advocate Mr. Joshi at the outset referred to order dated 26.07.2012 passed by this Court in the present application and submitted that respondent No.2 - complainant has restricted the complaint qua the offence punishable under Section 506(2) of the Indian Penal Code and not for other offences. It is submitted that impugned FIR is filed under Sections 465, 467, 468, 471, 120B and 506(2) of the Indian Penal Code and by aforesaid declaration made before this Court, complainant - respondent No.2 has restricted his FIR qua offence punishable under Section 506(2) of the Indian Penal Code. Learned advocate has referred to allegations made against the applicant qua aforesaid offence and contended that from the allegations made in the impugned FIR, ingredients of the alleged offence is not made out and therefore, the impugned FIR be quashed and set aside qua the present applicant. It is submitted that the complainant has merely alleged that the applicant and others have given threat to kill him, however, no further details are given and therefore, impugned FIR be quashed and set aside qua the applicant. In support of his contention, he has placed reliance on the decision rendered by this Court on 05.04.2016 in Special Criminal Application No.4481 of 2014 (Dineshbhai @ Mukeshbhai Jitabhai Patel v/s. State of Gujarat) and more particularly, observations and discussions made by this Court in paragraph No.14,15 and 16 of the said order. It is therefore, requested that impugned FIR be quashed and set aside qua the applicant.
[4] On the other hand, Mr.Patel, learned advocate for the complainant
- respondent no.2 referred to the impugned FIR, more particularly last paragraph of the FIR in which it is alleged that the applicant along with other accused have given threat to the complainant. It is submitted that when Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Apr 25 02:38:26 IST 2017 R/CR.MA/3004/2012 JUDGMENT ingredients of the alleged offence are made out, this Court may not interfere with the same. He, therefore, requested to dismiss the application.
[5] Mr. J.K.Shah, learned APP appearing for the respondent No.1 - State has supported the submissions canvassed on behalf of Mr.Vijay Patel, learned advocate for the complainant.
[6] I have considered submissions canvassed on behalf of the learned advocates for the parties. I have gone through the allegations made in the FIR and material produced on record as well as judgment on which reliance is placed by Mr.Joshi. From the impugned FIR, it is revealed that dispute is with regard to land for which even civil proceedings are pending before the concerned Civil Court. However, in the impugned FIR, it has been alleged by the complainant that all the accused including present applicant have given threat to kill him. At this stage, provision contained in Section 506(2) of the Indian Penal Code is also required to be referred. Section 506(2) of the IPC provide as under : "506. Punishment for criminal intimidation 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;
If the threat be to cause death or grievous hurt etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or a imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
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[7] In the case of Dineshbhai @ Mukeshbhai Jitabhai Patel (supra),
this Court has observed in para 14, 15 and 16 as under : "14 The second question that falls for my consideration is whether the offence punishable under Sections 504 and 506(2) of the I.P.C. could be said to have been made out.
15 Section 504 of the I.P.C. 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 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 Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Apr 25 02:38:26 IST 2017 R/CR.MA/3004/2012 JUDGMENT 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. Emperror, 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 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) 16 In the case of Ronak Ashok Kedia v. State of Gujarat [Criminal Miscellaneous Application No.4145 of 2012 decided on 19 November, th 2014], I have explained as to what would constitute the offence punishable under Section 506(2) of the I.P.C. I may quote the observations made in paras 10, 11 and 12 as under:
"10. The above takes me to consider whether any case is made out so far as the offence under Section 506(2) of the IPC is concerned. Section 506 reads as under:"
S. 506. 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; and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
11. The essential ingredients The offence of criminal intimidation Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Apr 25 02:38:26 IST 2017 R/CR.MA/3004/2012 JUDGMENT has been defined under Section 503 I.P.C and Section 506 I.P.C provides punishment for it. Section 503 reads as under:"
Whoever threatens another with any injury to his person, reputation or property, 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 threats, commits criminal intimidation.
Explanation: A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section.
An offence under Section 503 has following essentials:1.
Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
12. A bare perusal of Section 506 IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accused applicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened."
[8] Keeping in mind provisions of law and the decision rendered by
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this Court in the aforesaid case, if facts of the present case are examined, it is revealed that in the entire FIR there is no whisper of any allegations that the threats which were administered actually caused any alarm to the first informant respondent no.2 herein and he felt actually threatened. Before any offence of criminal intimidation is made out, it must be established that an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the land in question, it would not constitute an offence of criminal intimidation in view of aforesaid decision. Thus, this Court is of the opinion that none of the ingredients of the alleged offence punishable under Section 506(2) of the IPC is made out.
[9] In view of above, impugned FIR is required to be quashed and set aside qua the applicant. Accordingly, the FIR being C.R.No.I19 of 2012 registered with Anklav Police Station and proceedings filed pursuant thereto are quashed and set aside qua the applicant. The application is accordingly allowed. Rule is made absolute.
(VIPUL M. PANCHOLI, J.) satish Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Apr 25 02:38:26 IST 2017