Gujarat High Court
Rameshbhai Rajabhai Bharvad vs State Of Gujarat on 25 August, 2023
NEUTRAL CITATION
R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5033 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAMESHBHAI RAJABHAI BHARVAD & 3 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PARTH D PATEL(9754) for the Applicant(s) No. 1,2,3,4
MS KRINA CALLA, APP for the Respondent(s) No. 1
MR F B BRAHMBHATT for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 25/08/2023
ORAL JUDGMENT
1. The present application has been filed by the applicants - original accused under Section 482 of the Code of Criminal Procedure seeking quashing and setting aside the impugned Page 1 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined FIR being II.C.R.No.3214 of 2014 registered with Sola Police Station, Ahmedabad for the offence punishable under Sections 323, 294(B), 506(2), 427 and 114 of the Indian Penal Code (herein after referred to as the "IPC"), Section 135(1) of the Gujarat Police Act and Section 3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to the the "Act").
2. The facts and circumstances giving rise to the filing present application are such that the above referred FIR came to be lodged by present respondent no.2 against the present applicants inter alia contending that on 27.03.2014 when he was present at his shop at around 09.00 a.m., the applicant no.1 and the applicant no.2 came there on the motor-cycle and told the first informant that as he had parked his Tempo in the middle of the road, the road was closed and started abusing him.
2.1 Upon being asked not to hurl abuses, the aforesaid applicants started manhandling the first informant and gave kick and fist blows to him. The sister and daughter had also intervened to rescue the first informant, who were also manhandled by the aforesaid applicants.
2.2 The aforesaid applicants, thereafter, called the other applicants, who came to the spot armed with a stick and pipe, gave blows with the said weapons to the first informant and started insulting him by his caste and stated "સાલા મોચીઓ સાલા સાલા ચમારો તમોને તો અહિયાંથી બે દિવસમાં અહીંથી ભગાડી દઇશુ તો અહિ યાંથી બે તો અહિયાંથી બે દિવસમાં અહીંથી ભગાડી દઇશુ હિ વસમાં અ ીંથી ભગાડી ઇશુ". His relative Ramlal and other neighbors intervened, and thereafter, the Page 2 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined applicants ran away from the spot. Therefore, the FIR was registered for the aforesaid offences against the present applicants on 29.03.2014 and this Court, vide order dated 15.04.2014, passed in present application, had granted ad- interim relief in favour of the present applicants, which is continued till date.
3. Learned advocate for the applicants has submitted that the incident alleged in the FIR had taken place on 27.03.2014, whereas the FIR came to be lodged on 29.03.2014. Thus, the FIR came to be lodged after a period of more than 48 hours from the time of the incident. The delay caused in lodging the FIR has not been explained by the first informant in the FIR.
3.1 Learned advocate for the applicants has submitted that the respondent no.2 has expired pending the present application, and therefore, the applicants herein cannot be proceeded against pursuant to the aforesaid FIR.
3.2 Learned advocate for the applicants has submitted that it is alleged in the FIR that the sister of the first informant, who was pregnant at the relevant time, had received serious injuries in the incident, however, the record indicates that the sister of the first informant viz. Sumanben did not sustain any injury, as alleged in the FIR, as she was treated as an outdoor patient at the Sola Civil Hospital.
3.3 Learned advocate for the applicants has submitted that there are material contradictions in the FIR, which render the averments made in the FIR to be unreliable.
Page 3 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined 3.4 Learned advocate for the applicants has submitted that the applicants herein apprehended that the first informant would lodge an FIR falsely implicating them in such offence and had therefore, submitted an application to the Police Inspector, Sola Police Station voicing their apprehension.
3.5 Learned advocate for the applicants has submitted that the incident in question had not occurred at a public place and no person belonging to the general public was present at the scene of occurrence at the time of incident, and therefore, the offence alleged under Section 3 of the Act is not made out against any of the applicants.
3.6 Learned advocate for the applicants seeks to rely upon the judgment of the Apex Court in case of Ramesh Chandra Vaishya Vs. The State of Uttar Pradesh & Anr. reported in 2023 LiveLaw (SC) 469 and the judgment of this Court in case of Jivanbhai Nagjibhai Makwana Vs. State of Gujarat & Ors. reported in 2023 SCC OnLine Guj.2306.
4. The application is opposed by learned APP inter alia contending that specific words insulting the first informant by his caste were uttered by the applicants. The incident in question had occurred at a public place and upon bare perusal of the FIR, it appears that there are persons of general public present at the scene of occurrence at the time of incident. Therefore, offence punishable under the provisions of Section 3 of the Act is clearly made out against the present applicants. She, therefore, submitted to dismiss the present application.
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5. Learned advocate for the respondent no.2 has opposed the present application by submitting that he has no instructions as regard the death of first informant, however, even if it is accepted that the first informant has expired pending the present application, that would render no benefit to the present applicants.
5.1 Learned advocate for the respondent no.2 has submitted that he had filed an application for vacating the interim-relief vide Criminal Misc.Application No.6558 of 2014, wherein affidavit-in-reply was filed by the present applicants and certain photographs were also placed on record. Upon perusal of the said photographs, it clearly appears that the alleged incident had taken place in the middle of the road, which was a public road.
5.2 Learned advocate for the respondent no.2 has submitted that in the FIR itself, it has been mentioned that the other persons had intervened during the course of incident, which indicates their presence at the time of incident. He, therefore, submitted that the offence punishable under Section 3 of the Act is clearly made out against the present applicants, and therefore, the present application should be dismissed.
6. Heard learned advocates for the parties and perused the material available on record. Learned advocate for the applicants, at the outset, submitted that since the respondent no.2, who is the original first informant has expired, the proceedings against the present applicants, cannot be Page 5 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined conducted. Learned advocate for the respondent no.2 has stated that he has no instructions as regard the demise of the respondent no.2. Be that as it may, even if it is assumed for the sake of argument that the respondent no.2 i.e. first informant has expired, the said fact by itself would render no assistance to the present applicants. In the criminal justice system, once the victim has lodged an FIR, his role gets over, and thereafter, the State becomes the prosecuting agency, and therefore, the death of the first informant would be of no significance in the present case and the trial against the present applicants would not vitiate in view of death of the first informant. Therefore, submission in this regard made by learned advocate appearing for the applicants does not hold any ground.
7. The another aspect which is sought to be contended on behalf of the applicants is with regard to delay caused in lodging the FIR. The incident alleged in the FIR has taken place on 27.03.2014, whereas the FIR in that regard came to be lodged on 29.03.2014 and in the opinion of learned advocate appearing for the applicants, the delay caused in lodging the FIR, has not been explained in the FIR itself. Upon perusal of the FIR in question, it appears that the first informant has mentioned in the FIR that because of the injuries sustained by him in the incident, he was suffering from pain and got himself treated in the private dispensary, and thereafter, he had lodged the FIR. Thus, the first informant has given an explanation as regard the delay caused in lodging the FIR to the aforesaid extent. As per the settled law, in each and every case, the delay caused in lodging the FIR, may not be fatal to Page 6 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined the case of prosecution. The delay of 2 days caused in lodging the FIR can by no stretch of imagination be said to be an inordinate delay in lodging the FIR. Therefore, the submission made in this regard by the learned advocate appearing for the applicants also does not hold any ground.
8. It is sought to be contended on behalf of the applicants that the alleged incident had not occurred at a public place. Upon perusal of the FIR itself, at the time of incident, the first informant was present in his shop when some of the applicants approached him and as per the FIR, the incident had occurred because the first informant had parked his Tempo in the middle of the road, which was adjacent to his shop. The first informant had filed an application being Criminal Misc.Application No.6558 of 2014 praying for vacating the interim-relief operating in favour of the present applicants. In the said application, an affidavit-in-reply was filed on behalf of present applicants and certain photographs were placed on record along with the said affidavit-in-reply. If those photographs are seen, it clearly appears that a Tempo is standing in the middle of the road and there are some houses and shops on both the sides of the said road. From these photographs, it can be clearly made out that the shop belonging to the first informant was on the road in question beside which his Tempo was parked.
9. It is not even the case on behalf of the applicants that the road in question was not a public road. It is not even the case that the incident had taken place inside the shop of the first informant. Therefore, it can be prima facie said that the Page 7 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined incident had taken place on a public road which obviously was a public place. Therefore, the contention that the place at which the incident had occurred was not a public place does not appear to be true prima facie.
10. It was further argued on behalf of the applicants that no specific words by which the first informant was insulted by his caste are attributed to any of the applicants in the FIR. Upon perusal of the FIR, it has been stated in the same by the first informant that the applicants herein started telling the first informant "સાલા મોચીઓ સાલા સાલા ચમારો તમોને તો અહિયાંથી બે દિવસમાં અહીંથી ભગાડી દઇશુ તો અહિ યાંથી બે તો અહિયાંથી બે દિવસમાં અહીંથી ભગાડી દઇશુ હિ વસમાં અ ીંથી ભગાડી ઇશુ". Thus, clear words seeking to insult the first informant by his caste are specifically attributed to the present applicants. It is also required to be noted that the first informant and the applicants were residing in the same vicinity and were known to each other. Therefore, the applicants were very much aware about the caste to which the first informant belonged to and the words which are attributed to the present applicants, as aforesaid, would clearly indicate that those words were uttered by the present applicants with a clear intention to insult the first informant by his caste.
11. It is also contended on behalf of the applicants that no members of the general public were present at the time of incident, and therefore, none of the persons of general public heard the words attributed to the present applicants in the FIR, and therefore, the offence punishable under Section 3 of the Act is not made out. In this regard, if the FIR is perused, the first informant had stated in the said FIR that his relative - Ramlal and other neighbors had intervened, and thereafter, Page 8 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined the applicants ran away from the spot. Thus, from the bare reading of the FIR itself, it is clear that the people of general public were present at the scene of occurrence at the time of incident and they had heard the abusive words used by the present applicants to insult the first informant by his caste. Therefore, this ground is also not available to the present applicants. Moreover, the presence of other persons at the scene also prima facie indicates the place being a public place.
12. Learned advocate appearing for the applicants sought to rely upon the judgment of the Apex Court in case of Ramesh Chandra Vaishya (Supra). In Paragraph No.16 of the said judgment, the Apex Court while dealing with the facts of the case before it, has observed that "the first FIR registered at the instance of the complainant is silent about the place of occurrence and who, being a member of the public, was present when the appellant is alleged to have heard caste related abuses to the complainant." In Paragraph No.17 of the judgment, it has been observed by the Apex Court, "when the incident occurred, apart from the appellant, the complainant, his wife and their son were the only persons present at the scene of incident and no 5th person being a member of general public was present on the spot." It was in those set of facts that the Apex Court had held that before subjecting an accused to a trial for alleged commission of offence, it is desirable that the caste related utterances are outlined either in the FIR or at least in the charge-sheet. In the present case, such utterances are already outlined in the FIR, as mentioned herein above. In view of the fact that there were persons belonging general public present at the time of incident, as Page 9 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined observed herein above, this judgment would render no assistance to the present applicants.
13. The applicants have thereafter sought to rely upon the judgment of this Court in case of Jivanbhai Nagjibhai Makwana Vs. State of Gujarat & Ors.. In the said judgment, the Coordinate Bench of this Court in Paragraph No.17 has discussed the ingredients for the offence punishable under Section 3 of the Act as under:-
"17. The essential ingredients of Section 3 of the Act can be broken down as below :
(i) There should be intentional insult or intimidation of an SC/ST person by a person who is not a member of the SC/ST communities
(ii) Since the insult must be intentional, it logically follows that the accused is aware or knows that the victim belongs to an SC/ ST.
(iii) The incident must be in any place within public view."
14. In Paragraph No.19 of the said judgment, this Court has observed that "Unless the investigation indicates or reveals the intention of a person not belonging to Scheduled Caste or Schedule Tribe to commit any of the offences under Section 3 of the Act, in order to oppress or insult or humiliate or subjugate or ridicule a member of Scheduled Caste or Scheduled Tribe as such person merely belongs to that caste, Page 10 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023 NEUTRAL CITATION R/CR.MA/5033/2014 JUDGMENT DATED: 25/08/2023 undefined the offence under Section 3 of the Act cannot be invoked."
15. As discussed herein above, the applicants and the first informant were residing in the same vicinity and were known to each other and the applicants were therefore aware about the caste to which the first informant belonged. This observations would render no help to the present applicants.
16. In view of aforesaid discussions, the present application being devoid of any merit is hereby dismissed. Rule is discharged. Interim relief, if any, stands vacated.
17. In view of the order passed in main application, the connected applications do not survive and stand disposed of, accordingly.
18. Needless to say that the observations of this Court are prima facie.
Sd/-
(M. R. MENGDEY,J) GIRISH Page 11 of 11 Downloaded on : Sun Sep 17 02:32:18 IST 2023