Gujarat High Court
Mahendrabhai Bhimabhai Zapadia vs State Of Gujarat on 12 August, 2024
NEUTRAL CITATION
R/CR.MA/11837/2020 ORDER DATED: 12/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11837 of 2020
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MAHENDRABHAI BHIMABHAI ZAPADIA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
NANAVATI & CO.(7105) for the Applicant(s) No. 1,2,3
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 2
MR TRUPESH KATHIRIYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 12/08/2024
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the complaint being FIR No.11190006200441 of 2020 registered with Raanpur Police Station, District : Botad, for the offences under Sections 504 and 506(2) and Section 114 of the Indian Penal Code read with Section 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
2. Heard learned advocates for the respective parties.
3. Learned advocate for the applicants has submitted that the present applicants are falsely enroped in the offence and no such incident took place. It is submitted that with an ulterior motive, the father and his two sons enroped in an offence. The complaint itself shows the three different incidents, but nowhere insult to Page 1 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined caste is revealed and no any casteist remarks being made by the present accused. So far as applicant No.1 is concerned, not a single allegation or a whisper uttered against him. Going through the complaint, it appears that, the alleged incident took place on 20th July, 2020. Prima face, no any ingredients under the provisions of Atrocity Act are made out from the allegations made in the complaint. Therefore, the present complaint is nothing but a clear misuse and abuse of process of law. Even, no any allegations under Section 506 of the Indian Penal Code being made and to attract the provisions under the Atrocity Act, the complainant ought to have made an averments that he belongs to Scheduled Cast or Scheduled Tribes. In absence of the such averments or the evidence, the proceedings under the Atrocity Act is not maintainable. The present applicants have not used any derogatory language. As per the complaint, it is stated that the applicant No.1 hurled abuse against the present complainant and passed casteist remarks and derogatory comments to his castes at the Pan Stall, but in this regard, no any eye-witnesses or no any independent witnesses have supported the said version of the complainant and no any independent witness is there. After the said incident, the second incident took place, wherein it is alleged that the applicant No.2 humiliated the respondent No.2 but the said place is not a public view. When Respondent No. 2 was approaching his motorcycle, Applicant No. 2 got out of his Bolero car and used abusive language. No other allegations are made. At that time, there were no independent witnesses or third parties present, so any casteist remarks or insults were made without Page 2 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined public observation. The alleged witnesses, Mustak and Surpanch, are hearsay witnesses. Mustak is a contractor for the Gram Panchayat, and one of the applicants has filed several complaints against him with the DDO, who has ordered an investigation into Mustak. It is submitted that the said witnesses are planted witnesses and he is inimical and with ulterior motive, the applicant/s have filed one complaint against PSI, Mr.Karmatia, who is presently serving at LCB Botad. It is submitted that Mustak and Karmatia both are friend. In the said complaint, 'A' summary is filed, which is pending before the jurisdictional Court and to settle the dispute, PSI, Mr.Karmatia has pressurized the accused No.1 and as a counterblast, the impugned complaint is filed involving all male members of the family. Hence, he has requested to allow the present application and to quash and set aside the further proceedings. The present complaint is an afterthought, not connected with any of the incident and is filed based on false and fabricated evidence.
4. Learned APP has submitted that two witnesses have supported the case of the prosecution and investigation is conducted and prima facie, evidence is collected. Hence, this is not a case to quash and set aside the proceedings at this stage.
5. In support of his arguments, learned advocate Mr.Sheth has produced Affidavit-in-reply, which is annexed at page 14 of the compilation. Learned advocate Mr.Seth appearing for the respondent No.2 original complainant has stated that the alleged Page 3 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined incident took place in a public view on the road. The applicant No.2 is father of applicant Nos.1 and 3 and they have hurled castiest remarks and abuse the respondent No.2. Merely, complainant has not stated that he belongs to Scheduled Caste is not a ground to quash and set aside the proceedings. Merely, no any other witnesses are present is not a ground to quash and set aside the proceedings. The court has to consider the version and the averments made in the complaint are reliable and if the statement made by the complainant is trustworthy, then sole reliance can be placed and a specific castiest remarks is being used by the applicants is mentioned. Hence, he has requested to dismiss the present petition.
6. Having heard the learned advocate for the respective parties and having gone through the materials available on the record, it appears that at the instance of respondent No.2, the complaint came to be filed, wherein it is stated that the complainant had visited Pan Stall, at that time, applicant No.1 was also present and complainant told to Mahendra- Accused that he has received some amounts from the Indira house, which came to be deposited in the complainant's account and now it is taken by the Mahendra's father. Hence, Mahendra reacted by hurling abuses to the complainant to his castes and he left the places on 20th July 2020. Then, on 21st July 2020, at around 9:00 AM, when the complainant left the house to buy a wire, petitioner No.2-Bhimabhai and his son petitioner No.3-Vanraj met with him on the way and at that time petitioner No.2- Page 4 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined Bhimabhai stop his Bolero car and stepped out of it and started hurling abuses to the complainant towards his castes and due to this complainant got scared and left his house and thereafter, the alleged Complaint was filed on 22nd July 2020, under Sections 504 and 506(2) and Section 114 of the Indian Penal Code read with Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
7. Going through the complaint, it appears that the alleged incident took place in three part, in first part, it appears that no any casteist remarks being heard. So far as second part is concerned, except the complainant, no one was present and the alleged witnesses Mustak and Surpanch both are cited but they are hearsay witnesses and they are having no knowledge about the incident. From bare perusal of the complaint, it appears that the present respondent No.2 was not heard any casteist remarks against him in the public view and to invoke the provisions under the Atrocity Act in a publice, the complainant must be insulted. If the complaint does not disclose the essential ingredients of offence, in such case, there is no bar to exercise jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. If the allegations set out in the complaint do not constitute the offence, wherein cognizance has been taken by the Court.
8. The provisions of Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act reads thus :
Page 5 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined "Section 3(1)(r) - intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
Section 3(1)(s) - abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;
Section 3(2)(va) - commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;"
9. In the aforesaid backdrop, a reference is required to be made in case of Asmathunnisa vs. State of Andhra Pradesh reported in (2011) 11 SCC 259 and in case of Gorige Pentaiah v. State of Andhra Pradesh, reported in (2008) 12 SCC 531, wherein the Hon'ble Apex Court has observed as under :
".......According to the basic ingredients of Section 3(1)
(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a Page 6 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 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."
10. Considering the fact that to attract the section under the Atrocity Act, presence of the person and abuse must be in public view and within the public view, which amounts that the public must view the person being insluted, for that he must be present and no offence for the allegations under the said sections get attracted, if the person is not present. Herein, except the complainant, no one remained present or no any evidence or the material collected during the investigation, which support the case of the prosecution that the presence of the witnesses or the third party, the present applicants hurled abuse the complainant. It is undisputed fact that there was nobody else, except the respondent No.2-first informant was present and the alleged incident took place. The expression "Public View" used in Section. It is necessary that the derogatory word or the humiliation to constitute an offence should be uttered in the presence of an independent person.
Page 7 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined
11. The key ingredients of "public view" is missing in the complaint as per the FIR, are that the allegations of abusing the informant were in the Pan Stall, wherein no one was present. It is not the case of the informant that there was any member of the public was present, at the time of the incident. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In this regard reference is required to be made in the case of Hitesh Verma v. State of Uttarakhand, reported in (2020) 10 SCC 710, wherein the Hon'ble Apex Court has been pleased to explain and summarize the ingredients of the words "place in a public view", which is distinguished with the "Public Place" and further, it is clarified that presence of members of the public inside building or closed steps could render such place a place in a public view to presence of members of public offence under the provisions of Atrocities Act, 1989 can only be made out if other ingredients being satisfied. Herein, as discussed above, the alleged incident took place in Pan Stall and in the complaint, the complainant and except, him no one was present.
11.1. It would be further apposite to refer observation made by the Hon'ble Apex Court in case of Hitesh Verma (supra), wherein the Hon'ble Apex Court has observed as under :
11. "........ an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under:Page 8 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024
NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined "3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view".
13. The offence under Section 3(1)(r) of the Act 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 Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment.
14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State reported in 2008(8) SCC
435. The Court had 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 Page 9 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined 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".
12. In this regard, it would be further apposite to refer the decision of the Hon'ble Apex Court as well as this Court in case of Ramesh Chandra Vaishya vs. The State of Uttar Pradesh & Anr. reported in 2023 LiveLaw (SC) 469 and in case of Apoorva Oza vs. State of Gujarat & Anr. reported in 2023 GLR (4) 3101. Hence, no offence is made out of Sections 3(1)(r), 3(1)(s) and 3(2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
13. So far as Sections 504 and 506(2) are concerned, in this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Mohammad Wajid & Anr. vs. State of U.P. & Ors. reported in 2023 INSC 683 and decisions of the Gujarat High Court as well as Apex Court rendered in case of
(i) Pravinbhai Becherbhai Vankar and Ors. vs State Of Gujarat reported in 2007(1) GLR 337 and in case of (ii) Manik Taneja & Anr vs State Of Karnataka & Anr. reported in (2015) 7 SCC 423, wherein it is observed that; "in the case of criminal intimidation the threat of injury or the mens rea to cause alarm, or to compel a person to do or omit or to do something is must. Herein no any action or the act on the part of accused is lacking". Further, in case Page 10 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined of Manik Taneja (supra), para 11 is required to be reproduced:
"11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation"
as defined in Section 503 IPC is as under:-
"503. Criminal Intimidation.- 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 threat, commits criminal intimidation.
Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
A reading of the definition of "Criminal intimidation"
would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."
14. The Section 506 of the IPC is concerned, as the offence of criminal intimidation, which should be made out, it must be established that the accused had an intention to cause alarm to the complainant. In the case of Joseph Salvaraj A. vs. State of Page 11 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined Gujarat, reported in AIR 2011 SC 2258 and in the case of Mansafkhan Yasinkhan Pathan v. State of Gujrat, reported in 2002 (1) GLH (UJ) 4, this Court has also held that mere utterance of words which do not cause any alarm to the complainant of such act is not enough. The complainant should have been alarmed by the threat administered to her/him in absence of any apprehension or fear so as to cause alarm to the complaint. She was unable to attend the duties after the threat to mark.
15. In view of the above, no any offence is made out. A bare perusal of the complaint and averments made in the complaint as well as the order taking cognizance no offence is made out under Sections 504 and 506 of the IPC.
16. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. In case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the Page 12 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(5) 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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code 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.
(7) 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."
17. In the result, the application is allowed only qua applicants. The impugned complaint being FIR No.11190006200441 of 2020 registered with Raanpur Police Station, District : Botad as Page 13 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024 NEUTRAL CITATION R/CR.MA/11837/2020 ORDER DATED: 12/08/2024 undefined well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside only qua applicants herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 14 of 14 Downloaded on : Fri Aug 16 22:38:34 IST 2024