Gujarat High Court
Gulammiya @ Marshall Noormahommad ... vs State Of Gujarat on 10 July, 2023
NEUTRAL CITATION
R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7586 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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GULAMMIYA @ MARSHALL NOORMAHOMMAD NANDOLIYA & 3 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/07/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of notice of rule on behalf of respondent No.1 - Page 1 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023
NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined State.
2. The present application is filed for seeking following reliefs:
(A) YOUR LORDSHIPS may be pleased to quash and set aside the criminal complaint being F.I.R C.RI No. 10 of 2018 lodged before Chapi Police Station (at ANNEXURE-A hereto):
(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further investigation and proceedings of F.I.R C.RI No. 10 of 2018 Chapi Police Station (at ANNEXURE-A hereto);
(C) Such other and further relief's, as are deemed fit, in the facts and circumstances of this case make kindly be granted."
3.1 Brief facts as per the case of the applicant in this application are as such that on 30/3/2018 the complainant had travelled from Siddhpur, District Patan to village:- Meta for settling the case which was filed earlier by the complainant wherein, it is reflected from Page 2 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined the compliant that the applicant No.1 had informed him to come at hotel Taj as there is a crowd in village and therefore settlement talks would not be possible. Thereafter it is alleged that the applicants along with some unknown persons came with deadly weapons and alleged to have abused the complainant by caste as well as beaten him. It is further alleged that one Abbas Assamdi had snatched a golden chain as well as one abbas rasul had taken out an amount of 10580/- from his pocket. It is in this manner the aforesaid written compliant came to be registered against the applicants.. Hence, the applicants prefers this application for quashing and setting aside the Criminal Complaint lodged before Chapi Police Station being C.R-I No. 10 of 2018.
3.2 It is further the case of the applicants in this application that the whole compliant is bogus, concocted and gotup compliant as no such incident had taken. place between the applicants and the complainant. The said fact can be easily ascertained from the fact that the allegation against one Abbasali Asamdi was made of looting a golden chain, that person had travelled abroad Page 3 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined to Madinah for Haj on 23/3/2018 and the said incident is alleged to have taken place on 30/3/2018 which clearly shows that the whole compliant is a creativity of the complainant.
3.3 It is further the case of the applicants in this application that when the local villagers of village Meta came to know with regard to the said compliant, large number of villagers of different community had made representation to the District Superintendent of Police, Banaskantha on 4/4/2018 through Sarpanch of the village who also belongs to the community of the complainant that the said compliant is a false one and the said act is nothing but to pressurize the applicants pursuant to the earlier case. Hence, looking to the facts and circumstances of the case the compliant is required to be quashed and set -asdie by this Honourable Court. 3.4 It is further the case of the applicants in this application that even if the whole issue if accepted as gospel truth than also it had arisen with regard to settlement of a case; however, to implicate the applicants into more serious offences, the complainant had come Page 4 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined with an allegation of dacoity. and atrocity. Hence the compliant is required to be quashed and set-aside by this Honourable Court.
3.4 It is further the case of the applicants in this application that the complainant had also filed the complaint against the applicants being C.RI No. 55 of 2017 before Siddhpur Police Station for the offences punishable under section 143, 323, 504, 506(2) of the Indian Penal Code and section 3(1)(R)(S), 3(2)(5)(a) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. Hence this Application.
4. Heard learned advocate Mr. Yogendra Thakore for the applicants and learned APP Mr. Dhawan Jayswal appearing for the respondent No.1 - State.
5. Though served respondent No.2, he has not chosen to remain to remain present or oppose this application. 6.1 Learned advocate Mr. Yogendra Thakore for the applicants has submitted that prima facie, the impugned F.I.R. appears to have been filed by the complainant Page 5 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined with malicious intent and is inherently bad in the eyes of the law. He contends that on the date of the incident, the present applicant was not present at the location in question, yet the applicant is falsely implicated in the offense. Mr. Thakore, learned advocate further asserts that a previous similar F.I.R. was filed concerning a dispute over becoming trustees of a trust. In order to implicate the present applicant and other individuals in the trust, the complainant lodged a false complaint. He draws attention to a complaint filed on 6th January 2017 before Siddhpur Police Station, identified as C.R-I No. 55 of 2017, which charged the accused under various sections of the Indian Penal Code and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. In that case, the trial court acquitted all the accused in Special Atrocity Case No. 49 of 2017. Mr. Thakore, learned advocate states that as a result of that acquittal, a similar complaint was lodged on 31st March 2018, registered as F.I.R. C.R-I No. 10 of 2018 at Chapi Police Station, wherein the applicant and other accused were falsely accused under various sections of the Indian Penal Code and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, as well as Section Page 6 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined 135 of the Gujarat Police Act. He further submits that even upon reviewing the investigative materials, it becomes apparent that no incident of robbery, as described in Section 395 of the Indian Penal Code, took place. Rather, there was an altercation where the complainant was assaulted. Thus, the story narrated in the complaint lacks support, even from alleged eyewitnesses of the robbery incident. 6.2 Furthermore, Mr. Thakore, learned advocate argues that Section 506(2) of the Indian Penal Code (IPC) cannot be invoked since the prerequisites of Section 503 of the IPC must first be satisfied. In the present case, these requirements are not met. He contends that the applicant's account presents a completely implausible narrative, indicating that the current complaint is nothing but an abuse of process of law against the applicant. Therefore, he asserts that the impugned complaint is a clear misuse of the process of law and that the applicant has a habitual tendency to exploit the system.
6.3 He has relied on the judgment of this Court in the case of (i) Thakor Dashrathji Babuji versus State of Page 7 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined Gujarat reported in 2022 (0) AIJEL-HC 244682, (ii) Shabbirkhan Sahebkhan Khokhar versus State of Gujarat rendered in Criminal Misc. Application No.10911 of 2017 dated 3.5.2018, and (iii) Jayrajsinh Devendrasinh Rathod versus State of Gujarat rendered in Criminal Misc. Application No.10037 of 2018, 6.4 Further, he has submitted that in view of the above, this is a fit case where the Court should exercise the powers under Section 482 of the Criminal Procedure Code, 1973 as no ingredients alleged in the F.I.R. is prima facie satisfied, and therefore, in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this application is required to be allowed. 7.1 Per contra, learned APP Mr. Dhawan Jayswal appearing for the respondent No.1 - State has submitted that there is ample evidence against the applicant, establishing a prima facie case. He asserts that the complainant had to seek medical treatment for their injuries, which indicates that the occurrence of the incident cannot be ruled out. Mr. Jayswal relies on a Page 8 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined report dated 5th July 2020 from the Deputy Superintendent of Police, Palanpur Division, Palanpur, which states that there are eyewitnesses who support the occurrence of a scuffle between the complainant and other accused individuals, but do not support the alleged incident of robbery or loot under Section 395 of the Indian Penal Code.
7.2 Mr. Jayswal further contends that, despite the applicant not being identified or mentioned by any witnesses during the investigation, the incident did take place as per the complaint, which states that the applicant informed the complainant about a meeting to resolve a previous dispute. Therefore, he argues that a prima facie case has been established against the applicant, and the Court should not exercise its inherent jurisdiction under Section 482 of the Criminal Procedure Code, as this power should be exercised sparingly. According to Mr. Jayswal, learned APP there is sufficient material to establish a prima facie offense against the applicant in the present case.
8.1 I have heard learned advocate for the respective parties. I have considered the rival submissions made at Page 9 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined the bar.
8.2.1 It is relevant to refer the provisions of Sections 143, 323, 504, 506(2) of the Indian Penal Code, which are as under:
"Section 143 in The Indian Penal Code:-
143. Punishment.--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Section 323 in The Indian Penal Code:-
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 504 in The Indian Penal Code:-
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such Page 10 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 506(2) in The Indian Penal Code:-
"506. Punishment for criminal intimidation Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If the threat be to cause death or grievous hurt etc. - And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or a imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
8.2.2 It is also relevant to refer provisions of Sections 3(1)(R)(S), 3(2)(va) of the Scheduled Caste and Scheduled (Prevention of Atrocities Act), which are as Page 11 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined under:
"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; 3(1)(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view; (t) destroys, damages or defiles any object generally known to be held sacred or in high esteem by members of the Scheduled Castes or the Scheduled Tribes. Explanation.
3(2)(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground 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 imprisonment for life and with fine; 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 Castes or a Scheduled Tribe or such proper belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and Page 12 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined shall also be liable to fine;
8.3 It is required to refer the judgment of this Court which is referred by learned advocate for the applicant in the case of Thakor Dashrathji Babuji (supra), more particularly, paragraphs 3, 9 to 16 are relevant to the fact to the facts of the present case, which are as under:
3. Advocate Mr. Yogendra Thakore for the applicant in Criminal Misc. Application no.5638 of 2018 has submitted that the FIR lodged against the applicant is absolutely illegal, frivolous, vexatious and bogus and is filed with a view to abuse the criminal machinery against the applicant, where the applicant is agriculturist and the respondent no.2-complainant is the Sarpanch of Village Heduva Hanumant, both are residing in the same society.
3.1 Mr. Thakore submitted that a false complaint has been given on 11.9.2017 alleging that the applicant had quarreled with the complainant with regard to renovation of the house of the applicant which is at plot no.7 and further alleging that the applicant has looted an amount of Rs.3,500/- and gold chain worth Rs.60,000/- and that the applicant had abused the complainant by his caste as well as had beaten him. Page 13 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023
NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined 3.2 Mr. Thakore submitted that the complainant, now deceased, was in a habit of lodging complaints under the Atrocity Act against various persons with an ulterior motive, probably to recover the compensation amount from the State and to harass the persons named in the FIR. Mr. Thakore submitted that CR no.I-268/2015 came to be quashed in Special Criminal Application no.64 of 2016 on 3.9.2021, where he submits that along with the said Special Criminal Application, the application of other co-accused i.e. Criminal Misc. Application no.22354 of 2015 and Criminal Misc. Application no.2574 of 2017 were heard together. He further submitted that CR no.II-1/2011 was quashed by way of consent vide order dated 24.10.2013 passed in Criminal Misc. Application (for quashing and setting aside the FIR) no.15049 of 2013. In CR no.II-249/2015, the accused were acquitted on 29.8.2017 by the Special Judge (Atrocity), Mehsana in Special Atrocity Case no.37 of 2015 and the other matter bearing CR no.I195/2017 is also filed by the same complainant. Further, adding to the submissions, he stated that the present complainant himself was acquitted in an offence under Sections 406 and 408 of the IPC being FIR bearing CR no.I-4/2011. 3.3 Mr. Thakore submitted that contents of the FIR do not suggest any case to be drawn under the Atrocity Page 14 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined Act, by placing reliance on the judgment of Swaran Singh & Ors. Vs. State, Through Standing Counsel & Ors., reported in (2008) 8 SCC 435. Further stated that no case could be made out of any offence of dacoity to invoke Section 395 of the IPC in the present matter, to support the submission, Advocate Mr. Thakore relied on the judgment of this Court in the case of Dharmendrabhai Nandubhai Patel Vs. State of Gujarat, reported in 2012 (1) GLR 237.
9. In the FIR bearing CR no.I-185/2017, the cause for complaint appears to be some construction work being done by the applicant and that was resisted by the complainant on the ground that it was a illegal construction for which no permission has been sought for and that the complainant considered the construction as encroachment on his land. The communication was on phone and thereafter, as per the complainant, the applicant and his brother and 4 other men had come down to his society turning near House no.8. The Sections which have been invoked are Sections 3(1)(r) and 3(2)(va) of the Atrocity Act in both the impugned FIRs. Sections 3(1)(r) and 3(2)(va) of the Atrocity Act read as under:-
"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 Page 15 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined public view;
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;"
10. The provision of Section 3(1)(r), thus, refers to intentional insult or intimidation with an intention to humiliate in any place within a public view the member of a Scheduled Caste or a Scheduled Tribe. The FIR does not disclose the fact that any other person was present at the time when the alleged insult or intimidation by the accused took place which was with an intent to humiliate him in any public view.
11. The expression 'any place within public view' has been clarified in the judgment at paragraph-14 of the decision in the case of Hitesh Verma Vs. State of Uttarakhand & Anr., reported in (2020) 10 SCC 710, referring to the case of Swaran Singh & Ors. Vs. State, Through Standing Counsel & Ors., reported in (2008) 8 SCC 435, it has been observed as under: Page 16 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023
NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined "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 through Standing Counsel & Ors.
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 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. The Court held as under: "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 Page 17 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined 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."
12. In the case of Swaran Singh (supra), the Hon'ble Apex Court has noted the distinction of the expression 'public place', not being found in Section 3(1)(r), but instead, there has been use of the expression 'not any place within public view'. Section 3(1) is substituted by Act No.1 of 2016 with effect from 26.1.2016. 13. In the Page 18 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined case of Hitesh Verma (supra), while referring the case of Swaran Singh (supra), the distinction between a 'public place' and 'in any place within public view', has been expounded, which becomes applicable in the facts of the present case, which clarifies that utterance of the words is not in presence of any member of the public nor in the society within public view, the alleged incident is alleged to have taken place at the turning near house no.8. Hence, Section 3(1)(r) would not be applicable to the facts of the case, equally would be true for the FIR bearing CR no.I-195/2017, where there is no allegation that any such abuse was even in any place or any public view. The whole allegation is that the applicant had abused him on phone. Hence, to that case too, Section 3(1)(r) would not be made applicable.
14. In FIR bearing CR no. I-195/2017, the complainant had further alleged that he was robbed of his money and gold chain. , FIR says that during the commotion, someone from the accused took away his cash of Rs.3,500/- and gold chain. The police has invoked Section 395 of the IPC against the accused to constitute a case of dacoity.
15. The concept of the dacoity has been clarified, in the case of Dharmendrabhai Nandubhai Patel (supra), it has been observed as under:-
"21. ...... The Division Bench of this High Court, Page 19 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed as under:-
"Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the Page 20 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined transaction of committing theft hurt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:- "The words "for that end" in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."
In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows:
Page 21 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023
NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined "Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N. 372. Their Lordships put the question in this way:
"It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, Page 22 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined is as follows:-
"The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested." Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases."
22. In the last paragraph of the judgment, the Division Bench observed as under:- "Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
16. Here, there are allegations of hurt caused to the complainant during the course of the incident which, as alleged by the complainant, was insult and humiliation and during the course of the incident, it is alleged that anyone of the accused would have stolen the cash or gold chain. The judgment referred to hereinabove Page 23 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined explains that the theft would amount to robbery if while committing the offence of theft or while attempting to carry away the property obtained by theft, the offender for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. The said act should have been done in order to commit the offence of theft. Here, there is no such allegation that the accused persons had gathered to commit any offence of theft. Hence, Section 3(2)(va) would not be applicable in the case. Further, the offence under Section 395 of the IPC does not get covered in the Schedule under Section 3(2)(va) of the Atrocity Act. Hence, no case would be made out even under the Atrocity Act, nor the same would be falling under the IPC. Hence, in view of reasons given hereinabove, Section 3(1)(r) and Section 3(2) (va) of the Atrocity Act would not be applicable in both the impugned FIRs. Further, Section 395 of the IPC would not get attracted in FIR bearing CR no.I-185/2017.
8.3.2 It is also required to refer the judgment of this Court which is referred by learned advocate for the applicant in the case of Shabbirkhan Sahebkhan Khokhar (supra), more particularly, paragraphs 4 & 5 are relevant Page 24 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined to the fact to the facts of the present case, which are as under:
"3. Prima facie, it appears to be a case of matrimonial dispute between the husband and wife. Even if I accept the entire case of the first informant as it is, in my view, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC are spelt out.
4. It cannot be said by any stretch of imagination that the common object of the unlawful assembly was to commit dacoity. What constitutes dacoity, has been exhaustively explained by this Court in the case of Pratik Jagdishbhai Thakkar and others Vs. State of Gujarat (Special Criminal Application No. 9248 of 2016), decided on 05.05.2017. I may quote the relevant observations as under:-
"32. The above takes me to consider whether the chargesheet could have been filed for the offence under Section 395 of the IPC. Section390 of the IPC explains what is robbery. Section390 of the IPC reads as under:-
390. Robbery:- In all robbery there is either theft or extortion. When theft is robbery. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the Page 25 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery. When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Explanation.-The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has Page 26 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined therefore committed robbery.
(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child, and threatens (ci) to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying- "Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such:
but it is not robberyunless Z is put in fear of the instant death of his child.
33. Section 391 is with regard to the Dacoity.
Section 391 of the IPC reads as under:-
391. Dacoity.-When five or more persons Page 27 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
34. Theft amounts to `robbery', if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to `robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting Page 28 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined to carry away property obtained by the theft.
The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc. is caused at the time of the commission of the theft but for an object other than the one referred to in sec. 390, I. P. Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in ec. 390, I. P. Code, must always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476, in the following words:
"The words `for that end' in sec. 390 clearly mean that the hurt caused by the offender Page 29 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined must be with the express object of facilitating the committing of the theft or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."
[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678]
35. In the case of Karuppa Gounden v.
Emperor A. I. R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 C. W. N. 372 and King Emperor v. Mathura Thakur 6 C. W. N. 72, it has been observed at page 824 as follows :
"Now it is our duty to give effect to the words `for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The public Prosecutor has been forced to argue that `for that end' must be Page 30 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined read as meaning in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W..N. 372. Their Lordships put the question in this way: "It seems to us that the whole question turns upon the words 'for that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft? We think not.
It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
The language used in another case reported Page 31 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined as King Emperor v. Mathura Thakur 6 C. W. N. 72 is as follows:
"The question here arises whether
Mathura Thakur when he attacked
Soman Dhania, did so for the end
referred to, namely, for the purpose of carrying away the paddy, which had been harvested."
Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect t0 it and I therefore follow the decisions in those two cases. Ordinarily, if violence or hurt etc. is caused all the time of theft, it would be reasonable to infer hat violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose. [See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678] Page 32 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined
36. By any stretch of imagination, it cannot be said that the common object of the unlawful assembly was to commit dacoity. The act of taking away mobiles lying in the flat would not constitute dacoity."
5. Thus, the FIR which has been registered for the offence of dacoity is nothing but an absolute misuse of police machinery and it also amounts to complete non-application of mind on the part of the police in invoking section 395 in these type of cases."
8.3.3 It is also required to refer the judgment of this Court which is referred by learned advocate for the applicant in the case of Jayrajsinh Devendrasinh Rathod (supra), to the facts and circumstances of the present case.
8.4 I have taken into account the fact that the F.I.R. in question alleges that the applicants mentioned here was also involved in the incident. However, it specifically alleges that the applicants arrived in a car with weapons and attacked the complainant present. It is also revealed Page 33 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined that the complainant has filed a complaint of a similar nature, invoking the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act at the relevant time. In that complaint, the applicants mentioned herein and the accused individuals named were acquitted by the respective court after a thorough trial. Therefore, it appears that the complainant holds some resentment or grudge against the applicants in this case. Therefore, the narrative presented by the complainant, which attempts to implicate the applicants, is also difficult to believe or accept. 8.5 However, considering the totality of the facts and considering the fact that even during the investigation, the witnesses have shown the occurrence of incidence where they have shown the scuffle and presence of some of the applicants were also confirmed by them, and therefore, prima facie offence under the provisions of 506(2), 120B, 427, 504 of the Indian Penal Code is made out.
8.6 Taking into consideration the ongoing investigation, it has been discovered that other witnesses, described as eyewitnesses, have not supported any incident of robbery Page 34 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined or loot. Instead, they have merely confirmed the occurrence of a scuffle or an attack. Although there is a medical certificate issued in favor of the complainant regarding injuries, it alone is insufficient to link the applicants herein to the alleged incident. 8.7 The details provided in the F.I.R. regarding the incident and the evidence available in the record, and the statements of the eyewitnesses, clearly indicate that the applicants is being falsely accused in the present complaint due to a grudge held by the complainant regarding the earlier complaint where the other co- accused was acquitted.
8.8 It transpires that the applicants herein are actually not involved in the offence in question and more particularly, when the incident of robbery and loot is not taken place then the genuineness of the story narrated in the entire F.I.R. has become doubtful and therefore, considering that no offence is made out under Sections 3(1)(R)(S), 3(2)(va) of the Scheduled Caste and Scheduled (Prevention of Atrocities Act), genuineness of the offence is not made out.
Page 35 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023
NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined 8.9 Considering the totality of the facts and circumstances of the present case and considering the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the 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 sec.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 Page 36 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined should be exercised.
(1) Where 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an Page 37 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined order of a Magistrate as contemplated under sec.156(2) of the Code.
(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."
This is a fit case, where this Court is of the Page 38 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined opinion that the present complaint under the provisions of Sections 3(1)(R), 3(2)(5)(a) and 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and offence under Sections 397 and 395 of the Indian Penal Code is nothing but an abuse of process of law and accordingly, to prevent the abuse of process of law, this Court deems it fit to exercise the inherent powers under Section 482 of the Criminal Procedure Code, 1973 and the proceedings pursuant to the complaint under the provisions Section 143, 323, 504, 506(2) of the Indian Penal Code can be proceeded against the present applicants in accordance with law.
9. Accordingly, the present application is partly allowed qua the applicants only.
10. Impugned F.I.R. C.R.-I No.10 of 2018 lodged before Chapi Police Station qua the applicants is hereby quashed and set aside. Subsequent proceedings pursuant to the impugned F.I.R. qua the Page 39 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023 NEUTRAL CITATION R/CR.MA/7586/2018 JUDGMENT DATED: 10/07/2023 undefined applicants are hereby quashed.
11. Compensation if any is received pursuant to the impugned F.I.R. under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall be refunded back to the State by the complainant and in case of default, State Government is at liberty to take appropriate action, in accordance with law.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 40 of 40 Downloaded on : Sat Sep 16 21:06:49 IST 2023