Gujarat High Court
Dhiren Prafulbhai Shah vs State Of Gujarat & on 28 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/9976/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9976 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
5 Circulate among all Sessions Judges & Addl. Sessions YES
Judges.
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DHIREN PRAFULBHAI SHAH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Applicant(s) No. 1
MR ZUBIN F BHARDA, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, ADD. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/01/2016
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Patel, the learned APP waives service of notice of rule for and on behalf of the respondent No.1 State Page 1 of 21 HC-NIC Page 1 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT of Gujarat. Mr. Bharda, the learned advocate waives service of notice of rule for and on behalf of the respondent No.2original first informant.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicantoriginal accused, serving as a 'Principal' in the 'Vidya Bharti Pharmacy College', situated at the VillageUmrakh, Taluka Bardoli, DistrictSurat, seeks to invoke the inherent powers of this Court praying for quashing of the criminal proceedings, being Special (Atrocity) Case No.27 of 2015, pending as on today in the Court of the learned Additional Sessions Judge, Bardoli, arising from the F.I.R. being C.R. No.II51 of 2015 registered with the Bardoli Police Station, DistrictSurat, for the offence punishable under Sections3(1)(ix), 3(1)
(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The case of the prosecution may be summarized as under: 3.1 The first informant and his wife were serving as the 'Assistant Professor' with the 'Vidya Bharti Pharmacy College', situated at the VillageUmrakh, Taluka Bardoli, DistrictSurat. The College is being run and managed by a Charitable Trust. The said College is recognized by the AICTE, New Delhi. The wife of the first informant joined the service in 2007, whereas, the first informant joined the College in 2006 and was also, the Incharge Principal between March, 2011 to January, 2012. One Shri Dhiren Shah was appointed as the 'Principal' in January, 2012 and thereafter, from November, 2012, the applicant herein took over as the 'Principal' of the College. It is alleged that the applicant in his capacity as the 'Principal' of the College, started harassing the first informant and his wife. It is alleged that in December, 2012, both the husband and the wife were called by the applicant in his chamber and insulted them by uttering words relating to their caste. It is alleged that Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT the applicant herein administered threats that if they would not resign from service, then their life would be made miserable and both would be involved in a false case. It is stated in the F.I.R. that since they were serving in the College, they thought fit not to lodge any F.I.R. as regards the incident alleged to have occurred in December, 2012. It is further stated that thereafter also, the harassment continued and quite frequently, the applicant herein used to utter bad words to the first informant in the presence of the wife of the first informant. It is specifically stated that such words were being uttered at isolated places. It is alleged that deliberately, the first informant and his wife were deprived of the paternity leave and maternity leave and also, the benefits of the Sixth Pay Commission. It is further alleged that keeping personal grudge against the first informant and his wife, memos were also issued by the applicant. It is further stated that the applicant in his capacity as the Principal of the College furnished false information to the management with the intention to get them dismissed from the service. It is stated that the management constituted an inquiry committee to probe into the charges levelled against the first informant and his wife and by order dated 30.04.2015, the first informant was dismissed from service.
4. At the end of the investigation, the Investigating Officer thought fit to file chargesheet against the applicant herein for the offence enumerated as above.
5. The chargesheet consists of the following: (1) Order passed by the Superintendent of Police directing the Deputy Superintendent of Police, SC/ST Cell, Surat Rural to take over the investigation.
(2) First Information Report.
(3) Caste certificate of the first informant.
(4) Scene of offence panchnama.
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(5) Arrest panchnama.
(6) Statement of wife of the first informant.
The chargesheet in all runs into 12 pages.
6. The following facts are not in dispute.
(1) The alleged incident of uttering filthy words relating to caste is of December, 2012, for which, the F.I.R. came to be lodged on 19.05.2015.
(2) As alleged the first informant and his wife were called in the Chamber of the applicant and inside the Chamber, the first informant and his wife were insulted by uttering the filthy words.
(3) When the filthy words as alleged were uttered inside the Chamber, there was nobodyelse except the applicant, the first informant and the wife of the first informant.
7. Mr. Chetan K. Pandya, the learned advocate appearing for the applicant submitted that a palpably false F.I.R. was registered by the first informant alleging atrocities within the provisions of the Atrocities Act. He submitted that the first informant was quite irregular in service and therefore, time and again he was being reprimanded for the same by issue of notice and/or memos in accordance with the Rules and Regulations. Mr. Pandya further submitted that the management received serious complaints from the students that the first informant used to obtain money from them under the inducement that he would complete their projects. He submitted that after such complaints were received from number of students named in Para3.1 of the petition, a showcause notice was issued to the first informant in that regard, but no reply was given by the first informant.
8. Mr. Pandya submitted that the management was quite disturbed with the behaviour of the first informant, and his performance as the Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT 'Assistant Professor' was also found to be very poor.
9. Mr. Pandya submitted that the management vide resolution dated 4th April, 2015 appointed an Inquiry Committee of three members viz. (i) Dr. Jayesh A. Shah, (ii) Prof. Bhavesh V. Modi and (iii) Dr. Dhiren P. shah. Since the first informant objected to the two persons being a part of the Committee, they were replaced by the Management with new members viz. (i) Shri Kalpesh N. Patel and (ii) Shri Kunj Nikunj Vakil. Mr. Pandya submitted that the first informant was placed under suspension pending inquiry and the suspension order was served upon the first informant on 29th April, 2015. A departmental chargesheet was also issued.
10. Mr. Pandya submitted that in the wake of all such developments, the first informant went to the extent of filing a palpably false F.I.R. on 19th May, 2015.
11. Mr. Pandya submitted that even if the allegations levelled by the first informant are accepted as true, none of the ingredients to constitute the offence punishable under Section3(1)(ix) and 3(1)(x) of the Act is satisfied. He submitted that continuance of the prosecution will amount to gross abuse of the process of law, more particularly, the provisions of the Atrocities Act which are meant for laudable object. He therefore prays that the proceedings be quashed..
12. On the other hand, this application has been vehemently opposed by Mr. Bharda, the learned counsel appearing for the first informant. He submitted that a plain reading of the F.I.R. discloses commission of a cognizable offence under the Atrocities Act. He submitted that the Court must not embark upon an inquiry whether the allegations levelled are true or false in the proceedings under Section482 of the Cr.P.C.
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13. Mr. Bharda submitted that it is true that there is a delay of three years in lodging the F.I.R. He submitted that mere delay by itself is not sufficient to quash the proceedings in exercise of the inherent powers of this Court.
14. He submitted that it is true that the incident occurred within the four corners of the wall of the Chamber of the Principal, but the Chamber could be said to be a part of the premises of the College and the College being a public place, the offence could be said to have been committed under Section3(1)(x). Mr. Bharda submitted that although at the time, when the Atrocities Act was brought into force, it required the acts on the part of the accused to have been committed within public view, yet, taking into consideration the changed scenario and the attempts being made by the people belonging to the upper caste and community to abuse the members of the Scheduled Castes and Scheduled Tribes in the private place, the provision comprising of under Section3(1)(x) has to be harmoniously construed and the expression "public view" appearing in the said provision of law should not be understood to have a restricted meaning. According to the learned counsel, considering the same, even the Chamber of the applicant as the Principal of the College where the first informant was abused by the applicant in presence of the wife of the first informant, should be construed as the place "within the public view".
15. Mr. Bharda submitted that since the chargesheet has been filed, the applicant should be relegated to the remedy of filing appropriate discharge application and this Court may not quash the proceedings in exercise of the inherent powers under Section482 of the Cr.P.C.
16. Mr. H.K. Patel, the learned A.P.P. appearing for the State Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT submitted that a primafacie case could be said to have been made out to put the applicant to trial for the offence under the Atrocities Act, and the proceedings may not be quashed.
17. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the prosecution against the applicant should be quashed.
18. There cannot be a better case than the one in hand of gross abuse of the provisions of the Atrocities Act. This F.I.R. is an indication of the extent a person can go to abuse the provisions of the Atrocities Act, which are otherwise meant for the protection of the underprivileged and downtrodden class of the society. However, I may not go into this issue because in my view, even if I accept the entire case of the prosecution as true, none of the ingredients to constitute the offence under Section3(1)
(x) of the Atrocities Act are spelt out.
19. Section3(1)(x) reads as under: Section3(1)(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."
20. What is the true meaning and scope of the expression "public view" used in Section 3(1)(x) of the Act? Is it necessary that the derogatory or humiliating words to constitute an offence, should be uttered in the presence of the independent persons? Or would it be sufficient, if these are used, in the presence of any one or two members of the public, whether they are relatives, friends, associates or otherwise connected with the complainant? These are questions which require determination.
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21. The Law with regard to the interpretation of the statute is well settled by several authoritative pronouncements of the Supreme Court. While interpreting any statute, the aspects which need consideration are
(i) what was the law applicable before the Act was passed; (ii) what was the mischief or the defect for which the law earlier did not provide; (iii) what was the remedy the Legislature provided; and (iv) the reason for the remedy. The Court is required to adopt a construction which suppresses the mischief and advances the remedy and to add force, life, cure and remedy pitfalls, if any, according to the true intent of the makers of the Act. For this, reference may be made to a sevenjudge Bench decision of the Supreme Court in Bengal Immunity Co. Ltd. Vs. State of Bihar, AIR 1955 SC 661; and Directorate of Enforcement Vs. Deepak Mahajan, AIR 1994 SC 1775.
22. It is also well settled that FIR can be quashed, if the allegations taken in entirely at their face value, primafacie do not constitute any offence; if the allegations are absurd or inherently improbable, if there is any legal bar to the institution of such proceedings; and if the criminal proceeding is manifestly attended with mala fide and/or maliciously instituted with ulterior motive for wreaking vengeance, etc. In this regard reference may be made to the principles laid down by the Supreme Court in State of Haryana Vs. Bhajan Lal, 1992 Suppl. (1) SCC 335, and several other judgments.
23. Basic ingredients for the offence under Clause (x) of Subsection (1) of Section 3 of the Act, revealed through the bare reading of this section are as follows:
(a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST;
(b) the insult must be with an intent to humiliate the member Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and
(c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view"
can be satisfied even in a private place, where the public is present.
24. The difficulty is only as regards the true and correct import of the expression "public view" which is used by the Legislature in contra distinction to the expression "private view". The 'View' here means sight or vision and hearing. Only meaning of the word "public" is left to be found in the context in which it is used.
25. The expression "public" is a polimorphus word, which assumes different colours in different context. Judges and jurists have so far not found it possible to work out a complete logical definition of the words "public" universally applicable to all situations. Corpus Juris (page 844) defines "public" as under: "PUBLIC AS A NOUN does not have a fixed or definite meaning; it is a convertible term. In one sense, the "public" is everybody; and accordingly "public" has been defined or employed as meaning the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or country; the people; the whole body politic; or all the citizens of the state. In another sense the word does not mean all the people, or most of the people, nor many of the people of a place, but so many of them as contradistinguished them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighbourhood. 'B'. As an adjective 1. In General. It is said to be very difficult, if not impossible to frame a definition for the word "public" that Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT is simpler or clearer than the word itself; a convertible term, used variously, depending for its meaning upon the subjects to which it is applied. It has two proper meanings."
26. The SC/ST Act was enacted as the laws like the Protection of Civil Rights Act, 1955 and provisions of the Indian Penal Code was found inadequate to arrest the commission of atrocities against members of Scheduled Castes and Scheduled Tribes. A specific legislation to check and deter crimes committed by the nonScheduled Castes and Scheduled Tribe members thus became necessary. The statement of objects and reasons of the Act reads:
"Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded forced labour, the vested interests try to cow them down and terrorize them. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible Page 10 of 21 HC-NIC Page 10 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT substances like human excreta and attacks on the mass, killing of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes.
27. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Subclauses (I) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Subclause(x) is the only clause where even offending "utterances" have been made punishable. The Legislature required intention as an essential ingredient for the offence of "insult", "intimidation" and "humiliation" of a member of the Scheduled Castes or Scheduled Tribe in any place within "public view". Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded.
28. The plain reading of the F.I.R. filed by the first informant undoubtedly prima facie discloses various accusations against the first informant by the applicant in the name of the Schedule Castes and Schedule Tribes. It also prima facie discloses abuses having been uttered by the applicant and addressed to the first informant in the presence of the wife of the first informant on the ground of the first informant being a member of the Schedule Caste. However, as rightly submitted by the Page 11 of 21 HC-NIC Page 11 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT learned advocate for the applicant, the F.I.R. nowhere discloses those accusations having been made in a place within the "public view". As explained by me above, the expression "within public view" has specific meaning and in order to attract the provisions of law under Section3(1)
(x) of the Atrocities Act, the acts amounting to insult or humiliation to the member of Schedule Castes or Schedule Tribes should be visible and audible to the public. Otherwise, it would not amount to an offence under the said provision of law. Considering the same and also the allegations in the F.I.R which relate to the acts by the applicant in the closed cabin of the applicant and in the absence of any stranger, can hardly be said to be accusations by the applicant to the first informant "within the public view". On this count itself, the applicant is justified in contending that there was no case for recording the F.I.R. under the provisions of law comprised under Section3(1)(x) of the Atrocities Act.
29. The contention of the learned advocate appearing for the first informant regarding the interpretation to be given to the expression "within public view" cannot be accepted. In fact, to construe the said expression in the manner the learned advocate appearing for the first informant wants me to construe, the same would virtually amount to legislate upon the said provision in the statute and that is beyond the scope of the powers of the Court. That falls entirely within the domain of the legislature. Being so, the contention on behalf of the first informant in that regard is to be rejected.
30. I am well supported in my view by two decisions of the Supreme Court (i) Asmathunnisa Vs. State of A.P. reported in 2011 Cri.L.J. 2594; and (ii) Swaran Singh and Ors Vs. State through Standing Consel and Anr. Reported in 2008 Cri.L.J. 4369.
31. In the case of Asmathunnisa (Supra), the Supreme Court Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT considered the question whether in the absence of real aggrieved person present at that point of time, when the offence is alleged to have occurred, could it be said that such person was insulted "within public view". The Supreme Court took notice of the Kerala High Court decision in Para9, which reads as under:
9. In this connection, learned counsel for the appellant has placed reliance on a judgment of the Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan and others, 1997 Cri LJ 2036. The relevant paragraphs of this judgment are paras 12, 13 and 18. The said paragraphs read as under:
"12. A reading of Section 3 shows that two kinds of insults against the member of Scheduled Castes or Scheduled Tribes are made punishable one as defined under subsection (ii) and the other as defined under sub section (x) of the said section. A combined reading of the two sub sections shows that under subsection (ii) insult can be caused to a member of the Scheduled Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under subsection (x) insult can be caused to the person insulted only if he is present in view of the expression "in any place within public view". The words "within public view", in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in sub section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in subsection (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his premises or neighbourhood and an insult by words caused to a member of the Scheduled Castes or Scheduled Tribes "within public view" which means at the time of the alleged insult the person insulted must be present as the expression "within public view"
indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in subsection (ii) or would have used the expression "in any public place".
13. Insult contemplated under subsection (ii) is different from the insult contemplated under subsection (x) as in the former a member of the Scheduled Castes or Scheduled Tribes gets insulted by the physical act and whereas in the latter he gets insulted in public view by the words uttered by the wrongdoer for which he must be present at the place.
xxx xxx xxx
18. As stated by me earlier the words used in subsection (x) are not "in Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT public place", but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner."
32. In Para10, the Supreme Court reached to the following conclusion, which in my opinion clinches the issue in hand. Para10 reads as under:
10. The aforesaid paragraphs clearly mean that the words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.
33. As clarified by me the issue was little different before the Supreme Court, but the ratio that is discernable is that the "insult" if any, must be viewed by the "public".
34. The legal position would become more clear considering the ratio of the decision in the case of Swaran Singh Case (Supra).
35. In Swaran Singh's Case (Supra) the facts are that the complainant was working as a car driver under one Shri Umesh Gupta. He belonged to the Khatik caste. He used to stand near the car parked at the gate. His grievance was that every now and then Smt. Simran Kaur and her daughter while passing through used to abuse him by his caste. On 10.12.2014, in the morning while he was cleaning the car, both the mother and the daughter threw dirty water on him and abused him on his caste which was witnessed by the guard of the apartment and one another driver. While drawing distinction between public place and a place within public view, the Apex Court held as follows:
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27. Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression 'public place', but instead the expression used is 'in any place within public view'. In our opinion there is a clear distinction between the two expressions.
28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a 'Chamar') when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view.
It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the 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, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression 'place within public view' with the expression 'public place'. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.
37. Ultimately, in Para34, the Supreme Court concluded by observing as under:
34. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant no. 1.
38. The learned counsel for the applicant has also drawn my attention to a judgment of the Supreme Court in the case of 'Gorige Pentaiah v. State of Andhra Pradesh and others reported in (2008) 12 SCC 531 :
Page 15 of 21HC-NIC Page 15 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT (2008 AIR SCW 6901). The relevant paragraph of this judgment is as under:
"6. .. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellantaccused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 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 appellantaccused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the 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.
39. Although it has been contended vociferously that the Court should not embark upon any inquiry as regards the truthfulness of the allegations. Yet, in the facts of the present case, more particularly, considering the inordinate delay of more than three years in lodging the F.I.R., such inquiry in my view is necessary to prevent the abuse of the process of law. I have narrated the facts in details as regards the long standing dispute between the first informant and the management of the college, which includes the applicant herein being a Principal of the College. The words were uttered as alleged in December, 2012, whereas, the F.I.R. was registered in May, 2015. So far as the allegation of continuous harassment is concerned, no specific instances have been given and more importantly, no specific words alleged to have been uttered, could be found in the F.I.R.
40. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly Page 16 of 21 HC-NIC Page 16 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
41. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
42. I shall now consider whether the necessary ingredients to constitute the offence so far as the Section3(1)(ix) of the Act is concerned. Section3(1)(ix) reads thus: 3(1)(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 Scheduled Tribe.
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43. It appears that the Investigating Agency thought fit to file chargesheet for the offence punishable under Sections3(1)(ix) of the Act on the allegations that the applicant herein furnished false information to the management and pursuant to the same, the respondent no.2 was served with a chargesheet and was proceeded departmentally. In my view, Section3(1)(ix) has no application worth the name in the case in hand. I have already discussed above that serious allegations were levelled against the respondent no.2 and in that regard, a three member Inquiry Committee was constituted by the management and at the end of a fullfledged departmental inquiry, it was held that the charges levelled against the respondent no.2 were established. Accordingly, the respondent no.2 was dismissed from service.
44. The Supreme Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power 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.
45. In Connelly v. Director of Public Prosecutions, 1964 AC 1254, Lord Ried at page 1296 expressed his view "there must always be a residual discretion to prevent anything which savours of abuse of process" with which view all the members of the House of Lords agreed but differed as to whether this entitled a Court to stay a lawful prosecution.
46. A threeJudge Bench of the Supreme Court in the case of 'Inder Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT Mohan Goswami v. State of Uttaranchal' reported in (2007) 12 SCC 1:
(AIR 2008 SC 251) has examined scope and ambit of Section 482 of the Criminal Procedure Code. The Court in the said case observed that inherent powers under Section 482 should be exercised 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 fully justified in preventing injustice by invoking inherent powers of the court.
47. In the case of 'Devendra and others v. State of Uttar Pradesh and another' reported in (2009) 7 SCC 495, the Supreme Court observed as under: "There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."
48. In the course of my present sitting, I have come across various cases wherein the provisions of Atrocities Act are misused. I find that various complaints are filed immediately after elections, be it Panchayat, Municipal or Corporation, alleging offence under the Atrocities Act. I have no hesitation in saying that in most of the cases, it was found that the F.I.R.s/Complaints were filed only to settle the score with their opponents after defeat in the elections. I have also come across various cases, wherein, private civil disputes arising out of property, monetary matters, dispute between an employee and employer, dispute between the subordinate and his superior - are given penal and the complaints are being filed either under Section 190 r/w.200 or F.I.Rs at the police station. The matter in hand is one another example of misuse of the Act.
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As observed by me earlier, the purpose of bringing SC and ST Act is to putdown the atrocities committed on the members of the Scheduled Castes and Scheduled Tribes. The law enforcing authorities must bear in mind that it cannot be misused to settle other disputes between the parties like the case one in hand, which is alien to the provisions contemplated under the laudable Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised over zealously by the enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of power conferred on them.
49. Passing mechanically orders by the Court of Magistrates in complaint and/or registration of the F.I.R. at the Police Station, which do not have any criminal element, causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons the reputation of the citizen is put to stake as immediately after the said orders are passed, innocent citizens are turned as accused. One should not overlook the fact that there is Section18 in the Atrocities Act, which imposes a bar so far as the grant of anticipatory bail is concerned, if the offence is one under the Atrocities Act. If a person is accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail under Section438 of the Cr.P.C. on the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act.
50. In the result, this application is allowed. The further proceedings of the Special (Atrocity) Case No.27 of 2015 pending as on today in the Court of the learned Additional Sessions Judge, Bardoli arising from the F.I.R. being C.R. No.II51 of 2015 registered with the Bardoli Police Page 20 of 21 HC-NIC Page 20 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT Station, DistrictSurat, are hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated.
I am told that the first informant has challenged the action of the college authorities dismissing him from service. If there are any proceedings as on today in that regard, the same shall proceed further expeditiously in accordance with law without being influenced by any of the observations made in this order.
Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Feb 03 00:51:54 IST 2016