Kardam R Modi vs State Of Gujarat & on 24 April, 2015

[Cites 23, Cited by 1]

Gujarat High Court

Kardam R Modi vs State Of Gujarat & on 24 April, 2015

Bench: J.B.Pardiwala

          R/CR.MA/10736/2014                                           ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 10736 of 2014
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                       KARDAM R MODI....Applicant(s)
                                 Versus
                   STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Applicant(s) No. 1
MR VIJAY H NANGESH, ADVOCATE for the Respondent(s) No. 2
MS CHANDARANA, APP for the Respondent(s) No. 1
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           CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
                        Date : 24/04/2015
                                   ORAL ORDER

Rule returnable forthwith. Ms.Chandarana, the learned APP waives service of notice of Rule for and on behalf of the respondent No.1State of Gujarat. Mr. Nangesh, the learned advocate waives service of notice of Rule for and on behalf of the respondent No.2original first informant.

By this application, the applicantoriginal accused a Principal of the School seeks to invoke the inherent powers of this Court under Section 482 of the code of Criminal Procedure, 1973, praying for quashing of the First Information Report being C.R.No.I116 of 2014, registered with the Chanasma Police Station, for the offence punishable under Sections 3(1)(x) of the Atrocities Act and also Sections 384, 323, 427 of the Indian Penal Code.

The case of the first informant may be summarized as under:

The applicant herein is a Principal of School running in the name Page 1 of 12 R/CR.MA/10736/2014 ORDER of "P.P. Patel High School", Chanasma. The first informant is serving as a Teacher in the said School. It is alleged by the first informant that on 23rd June 2014, he was called by the applicant herein in his chamber and after closing the door of the chamber, he uttered bad words relating to his caste and insulted him. It is alleged that while uttering such words, he stated and enquired with the first informant as to why the first informant was not attending the classes. The first informant has further alleged that at that point of time, the accused caught hold of his shirt, broke the button of the shirt and snatched away Rs.1,700/ from the pocket of the shirt of the first informant. This is the sum and substance of the FIR.

It may be stated at the outset that the incident occurred on 21 st June, 2014 for which the FIR came to be registered on 8th July 2014. There is no explanation worth the name why the complainant took almost 15 days to lodge the FIR.

It also appears from the materials on record that the students of the school complained before the Principal i.e. the applicant herein that the first informant, as a teacher, was not attending the class and was not imparting the necessary education. In that regard the explanation was sought for from the first informant. It also appears that the matter reached up to the District Education Officer. In such circumstances the FIR came to be registered after the Departmental action was initiated against the first informant.

Section 3 (1) (x) reads as under:

"Punishable for offences of atrocities.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe. Page 2 of 12 R/CR.MA/10736/2014 ORDER

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"

In the instant case, the allegations of the respondent No.2 in the entire compliant is that on 23rd June 2014, the applicant abused him with the name of his caste in his chamber. According to the basic ingredients of Section 3 (1) (x) of the Act, the first informant ought to have alleged that the accusedapplicant was not a member of the Scheduled Castes or Scheduled Tribes and he (respondent No.2) was intentionally insulted or intimidated by the accused with an intent to humiliate the respondent No.2 in a place within the public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue so far as the offence under the Atrocity Act is concerned, will be nothing but an abuse of the process of law. (See Gorige Pentaiah v. State of A.P. (2008) 12 SCC 531).

In my view none of the ingredients to constitute the offence under Section 3 (1) (x) of the Atrocities Act, are spelt out. I can say, as a Judge, with all responsibility that here is a first informant, who has throughly misused the provisions of the Atrocity Act. The misuse is writ large on the face of the FIR.

The other offence alleged are also not made out. I am convinced that the FIR lodged by the first informant is palpably false. It is only after the necessary action was initiated against the first informant as a teacher that as a counter blast, he thought fit to lodge the FIR against the Principal of the school levelling all sorts of allegations.

Page 3 of 12

R/CR.MA/10736/2014 ORDER I may quote with profit a decision of the Supreme Court in the case of Asmathunnisa v. State of A.P. reported in AIR 2011 SC 1905:

"8. Learned counsel for the appellant submitted that:

A. According to the complaint, no offence under the aforesaid section can be made out against the appellant because the ingredients of the offence are not made out. In the complaint so called offending words were not even attributed to the appellant. It is alleged that the appellant merely accompanied her husband and the offending words were spoken by the husband of the appellant, therefore, the 4 appellant in this appeal by no stretch of imagination can be held guilty of the offence under the section 3(1)

(x) of the 1989 Act.

B. According to the section, any word which intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe is an offence under the 1989 Act. In the instant case, the husband of Sridevi was not present when the offending words, if any, were spoken by the husband of the appellant. In absence of real aggrieved person present at that point of time, no offence under the said section can be made out against the appellant.

C. It is not established that the words were spoken by a person who was not a member of Scheduled Caste or Scheduled Tribe.

D. The entire incident is alleged to have taken place at the residence of Sridevi and not in any place within public view.

E. None of the ingredients of this offence are present in the instant case. Even if the contents of the complaint in its entirety are taken as correct and true even then no offence is made out against the appellant.

9. In this connection, learned counsel for the appellant has placed reliance on a judgment of the Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan & Others 1997 Crl. L.J. 2036. The relevant paragraphs of this judgment are paras 12, 13 and 18. The said paragraphs read as under:

"12. A reading of Section 3 shows that two kinds of insults against the member of Scheduled Castes or Scheduled Tribes are made punishable - one as defined under subsection (ii) and the other as defined under sub section (x) of the said section. A combined reading of the two subsections Page 4 of 12 R/CR.MA/10736/2014 ORDER shows that under section (ii) insult can be caused to a member of the Scheduled Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under subsection (x) insult can be caused to the person insulted only if he is present in view of the expression "in any place within public view". The words "within public view", in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in subsection (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in subsection (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his premises or neighbourhood and an insult by words caused to a member of the Scheduled Castes or Scheduled Tribes "within public view" which means at the time of the alleged insult the person insulted must be present as the expression "within public view" indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in subsection (ii) or would have used the expression "in any public place".

13. Insult contemplated under subsection (ii) is different from the insult contemplated under subsection (x) as in the former a member of the Scheduled Castes or Scheduled Tribes gets insulted by the physical act and whereas is the latter he gets insulted in public view by the words uttered by the wrongdoer for which he must be present at the place.

xxx xxx xxx

18. As stated by me earlier the words used in subsection (x) are not "in public place", but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner".

10. The aforesaid paragraphs clearly mean that the words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.

11. Learned counsel for the appellant also submitted that, in any event, the words were not attributed to the appellant. She merely accompanied her husband to that place even according 7 to the allegation in the complaint and she did not utter offending words. According to appellant, in the facts and circumstances of this case, Section 3(1)(x) of the 1989 Act Page 5 of 12 R/CR.MA/10736/2014 ORDER is not attracted.

12. Learned counsel for the appellant has also drawn our attention to a judgment of this Court Gorige Pentaiah v. State of Andhra Pradesh & Others (2008) 12 SCC 531. The relevant paragraph of this judgment is as under:

"6. .. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellantaccused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

13. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under 8 section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

14. The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad categories where the High Court would be justified in exercise of its powers under section 482:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their 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 Page 6 of 12 R/CR.MA/10736/2014 ORDER to prove the charge."

15. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, according to the court, the process against the accused can be quashed or set aside :

"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".

16. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699, observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

17. In Janta Dal v. H.S. Chowdhary and Others (1992) 4 SCC 305 the court observed as under:

"131. Section 482 which corresponds to Section 561A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent power of the High Court. The rule of inherent powers has its source in the maxim Page 7 of 12 R/CR.MA/10736/2014 ORDER "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.

132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

18. In Dr Raghubir Sharan v. State of Bihar (1964) 2 SCR 336, this court observed as under

"... Every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice .... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its powers ...."

19. In the said case, the court also observed that the inherent powers can be exercised under this section by the High Court (1) to give effect to any order passed under the Code; (2) to prevent abuse of the process of the court; (3) otherwise to secure the ends of justice.

20. In Connelly v. Director of Public Prosecutions 1964 AC 1254, Lord Ried at page 1296 expressed his view "there must always be a residual discretion to prevent anything which savours of abuse of process" with which view all the members of the House of Lords agreed but differed as to whether this entitled a Court to stay a lawful prosecution.

21. In State of Haryana & Others v. Bhajan Lal & Others reported in (1992) Suppl.1 SCC p.335, this court had an occasion to examine the scope of the inherent power of the High Court in interfering with the investigation of an offence by the police and laid down the following rule: [SCC pp. 364 65, para 60: SCC (Cri) p. 456, para 60].

"The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable Page 8 of 12 R/CR.MA/10736/2014 ORDER offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on beingapproached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution."

22. In Bhajan Lal (supra), this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter 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 Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C., gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that 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 to myriad kinds of cases wherein such power 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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.

Page 9 of 12

R/CR.MA/10736/2014 ORDER (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(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 grounds 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 proceedings 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."

23. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus: "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

24. A threeJudge Bench of this Court in Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 (wherein one of us, namely, Dalveer Bhandari, J. was the author of the judgment) has examined scope and ambit of Section 482 of the Criminal Procedure Code. The Court in the said case observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court.

25. In Devendra and Others v. State of Uttar Pradesh and Another (2009) Page 10 of 12 R/CR.MA/10736/2014 ORDER 7 SCC 495, this court observed as under: "There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."

26. In State of A.P. v. Gourishetty Mahesh and Others (2010) 11 SCC 226, this court observed that the power under section 482 of the Code of Criminal Procedure is wide but has to be exercised with great care and caution. The interference must be on sound principle and the inherent power should not be exercised to stifle the legitimate prosecution. The court further observed that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is up to the High Court to quash the same in exercise of its inherent power under section 482 of the Code.

27. In a recent decision in M. Mohan v. The State 2011 (3) SCALE 78 this Court again had an occasion to consider the case of similar nature and this court held that if all the facts mentioned in the complaint are accepted as correct in its entirety and even then the complaint does not disclose the essential ingredients of an offence, in such a case the High Court should ensure that such frivolous prosecutions are quashed under its inherent powers under section 482 of the Cr.P.C.

28. When we apply the ratio of the settled principles of law to the facts of this case, then, in our considered opinion, the High Court ought to have exercised its jurisdiction under section 482 of the Code of Criminal Procedure and quashed the complaint qua the appellant only to prevent abuse of the process of law.

In the result, this application is allowed. The further proceedings of the First Information Report being C.R. No.I116 of 2014, registered with the Chanasma Police Station, are hereby ordered to be quashed. All consequential proceedings pursuant thereto stand terminated. Rule is made absolute. Direct service is permitted.



                                                                     (J.B.PARDIWALA, J.)


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       R/CR.MA/10736/2014                   ORDER




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