Gujarat High Court
Arunbhai Haribhai Dave vs State Of Gujarat on 20 June, 2024
NEUTRAL CITATION
R/CR.MA/21434/2019 ORDER DATED: 20/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21434 of 2019
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ARUNBHAI HARIBHAI DAVE & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AV NAIR(5602) for the Applicant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/06/2024
ORAL ORDER
1. By way of preferring present application, the applicants have invoked extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 praying to quash and set aside the FIR being C.R.No. II-271 of 2019, registered with Bortalav Police Station, Bhavnagar for the offences punishable under Sections 504, 506(2), 509 and 114 of the Indian Penal Code and consequential proceedings arising out of the said FIR.
2. The case of the prosecution can be summarized as under:
2.1. The complainant was working at Jaipur in the office of one Mr. Bhavdip Arunbhai Dave i.e. son of Page 1 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined the applicant No.1 since February, 2017 and as per the terms and conditions of the contract, she used to get Rs.20,000/- salary per month. She has not received salary of 9 months i.e. Rs.1,80,000/-.
However, said Bhavdipbhai has paid Rs.5000/- in cash but for rest of the amount of Rs.1,75,000/- he has given cheque of ICICI Bank which was deposited by her in the bank but the same was not clear. The endorsement of the bank is that 'payment is stopped by the drawer'. Thereafter, the complainant has tried to find out the location of said Bhavdipbhai but could not be succeeded in her attempt. Thereafter, she came to know that Bhavdipbhai had shifted to Hydrabad and thereafter she could be able to get the address of Bhavnagar of said Bhavdipbhai and therefore on 09.05.2018 at around 8:30 p.m. she had gone to the house of Bhavdipbhai at Bhavnagar. However, he was not present and therefore she had demanded the salary from applicant nos. 1 and 2 and at that point of time she was abused and threat to kill her was administered by the present applicants and therefore present FIR is filed.
3. Learned advocate Mr. Nair submits that a false and frivolous complaint is registered against the applicants. Applicants are at all not concerned with the financial transactions took place between Bhavdipbhai and complainant. The applicant no.1 is the father and applicant No.2 is the sister of Page 2 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined Bhavdipbhai. It is the specific case of the prosecution that the so-called incident is occurred on 09.05.2018 and FIR is lodged on 11.10.2019. Therefore, there is gross delay in registering the FIR and complainant has not stated anything in the entire body of the FIR about the reason as to why FIR has been registered late. Therefore, there was no explanation worth clarification in the entire body of the FIR about the delay in registering the FIR.
4. Learned advocate Mr. Nair further submits after a period of about one month from the occurrence of the said incident, complainant also lodged one FIR against Bhavdipbhai at Brahmpuri Police Station, Jaipur City for the offence punishable under Sections 420 and 406 of the Indian Penal Code, wherein, the investigating authority has filed 'C' Summary. He submits that pursuant to the registration of the FIR, investigation was carried out by the investigating officer and ultimately 'C' summary report has been filed and the same is pending before the competent Court for adjudication. The investigating officer has specifically opined that the dispute between the parties is of civil nature to which criminal colour is given by the complainant. Learned advocate Mr. Nair further submits that so far as allegations levelled against the applicants accused under Section 504 and 506 are concerned, for the purpose of Page 3 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined invoking the provisions of Section 504 IPC, the basic ingredients are required to be satisfied, which are
(i) intentional insult, (ii) the insult must be such as to give provocation to the person insulted, and
(iii) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The following ingredients are required to be satisfied so as to invoke the provision of Section 506. (i) that the accused threatened some person, (ii) that such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; and (iii) that he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat. The plain reading of the FIR clearly goes on to show that those basic and essential ingredients to constitute the charge against the applicants are not satisfied and they are missing from the body of the FIR. Learned advocate Mr. Nair submits that considering the above stated factual aspects of the matter, the FIR in question registered against the applicants is nothing but sheer abuse of process of Court and hence the same is required to be quashed. Learned advocate Mr. Nair further submits that as per the law laid down by the Hon'ble Apex Court in the case of R. P. Kapur v.
Page 4 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined State of Punjab, reported in AIR 1960 SC 866 and in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp. (1) SCC 335, where the Court finds that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and/or 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/her due to private and personal grudge, in that event, the Court should exercise inherent powers under Section 482 of the Code by quashing the FIR/complaint. Therefore, the impugned FIR, which is nothing but sheer abuse of process of Court, is required to be quashed.
5. Learned APP Mr. Soaham Joshi has objected the present application with vehemence and submitted that involvement of the applicants is clearly spelt out from the body of the FIR. He further submits that immediately after the registration of the FIR, the applicants have approached this Court and obtained order of stay and they were protected by this Court. Therefore, further investigation could not have been carried out by the investigating officer. However, during the interregnum period, statement of the Page 5 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined complainant was recorded wherein she has supported her version made in the FIR and verbatim same facts have been reiterated in the said statement. Therefore, prima facie involvement of the applicants accused in the commission of crime is found out. He further submits that if this Hon'ble Court would make cursory glance upon the allegations levelled against the applicants accused, in that event, the basic ingredients of the offences alleged against the applicants are clearly spelt out. He further submits that there is history of past antecedents against the applicant No.1. Therefore, the FIR as well as further consequential proceedings based upon the said FIR may not be quashed.
6. I have gone through the Record and Proceedings and also perused the material available on record. It is found out from the record that the so-called incident is occurred on 09.05.2018 and FIR is filed on 11.10.2019. Thus, there is gross delay in registering the FIR and in the entire body of FIR, nowhere, complainant has given any explanation why FIR is filed at the belated stage i.e. almost after more than one year and five months. It is also found out from the record that on 08.06.2018, complainant has filed another complaint at Rajasthan against Bhavdipbhai, who happens to be the son of applicant No.1 and brother of applicant No.2. Pursuant to the registration of the said FIR, the investigating Page 6 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined officer had carried out the investigation and ultimately after verifying all the materials available before him, he came to the conclusion that the dispute between the parties is of civil nature and complainant has tried to give criminal colour to it. Therefore, 'C' summary report is submitted before the competent Court which is pending for final adjudication. It is also an admitted position of fact that complainant was working in the firm of Bhavdipbhai, son of applicant No.1 and as per the case of the complainant, she worked there for certain period of time but she could not receive the salary of 9 months. However, Bhavdipbhai has paid Rs.5,000/- in cash as salary and for rest of the amount of Rs.1,75,000/-, a cheque was given, which was dishonoured and therefore just for the purpose of recovery of the said amount, she had gone to the house of the applicants and at the relevant point of time, as per the say of the complainant, some verbal altercations took place. I have verified the allegations levelled against the applicants.
7. Now, before dwelling into the issue involved in the matter, I would like to refer to the decision of Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana and Another, reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:
Page 7 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined "20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
xxx xxx xxx
23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
8. Now, I would like to refer to the decision of the Hon'ble Apxe Court in the case of Vikram Johar v. State of Uttar Pradesh and another, reported in AIR 2019 Supreme Court 2109, wherein the Hon'ble Apex Page 8 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined Court has observed that for the purpose of invoking the provisions of Section 504 IPC, the basic ingredients are required to be satisfied, which are
(i) intentional insult, (ii) the insult must be such as to give provocation to the person insulted, and
(iii) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The following ingredients are required to be satisfied so as to invoke the provisions of Section 506. (i) that the accused threatened some person, (ii) that such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; and (iii) that he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat. A plain reading of the allegations in the FIR in question, in the opinion of this Court, does not satisfy all the aforesaid basic and essential ingredients so as to invoke the provisions of Section 504 and 506(2) of the IPC.
9. It is well settled that where the Court finds that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a Page 9 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined case against the accused and/or 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/her due to private and personal grudge, in that event, the Court should exercise inherent powers under Section 482 of the Code by quashing the FIR/complaint. Here in the instant case, from the bare reading of the contents of the FIR in question, it transpires that no offence much less the offence under Sections 504 and 506 are made out against the applicants accused.
10. The Coordinate Bench of this Court, in the case of Dineshbhai @ Mukeshbhai Jitabhai Patel v. State of Gujarat & another, vide judgment and order dated 05.04.2016 passed in Special Criminal Application No.4481 of 2014, observed and held 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 Page 10 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined 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 complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:Page 11 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024
NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined 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 19th November, 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 Page 12 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined 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 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 Page 13 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined 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 accusedapplicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no Page 14 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024 NEUTRAL CITATION R/CR.MA/21434/2019 ORDER DATED: 20/06/2024 undefined whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened."
11. So far as Sections 509 and 114 of the Indian Penal Code is concerned, none of the ingredients to constitute even the offence punishable under Sections 509 and 114 of the Indian Penal Code are spelt out. Thus, in view of the aforesaid discussion, from bare perusal of the FIR itself, none of the ingredients to constitute the alleged offence are spelt out.
12. For the foregoing reasons, I am inclined to allow this application and the same is accordingly allowed. The FIR being C.R.No. II-271 of 2019, registered with Bortalav Police Station, Bhavnagar for the offences punishable under Sections 504, 506(2), 509 and 114 of the Indian Penal Code and consequential proceedings arising out of the said FIR are hereby quashed.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 15 of 15 Downloaded on : Fri Jun 28 21:58:34 IST 2024