Gujarat High Court
Sushmaben Rajendrabhai Bakshi vs State Of Gujarat on 26 April, 2024
NEUTRAL CITATION
R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 848 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUSHMABEN RAJENDRABHAI BAKSHI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR KIRIT R PATEL(2802) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, LD.ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 26/04/2024
ORAL JUDGMENT
1. By this application under section 482 of the Code of Criminal Procedure,1973, the applicant seeks to invoke the Page 1 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined inherent powers of this Court praying for quashing of the first information report being C.R. No.I-25 of 2009 registered before the J.P. Nagar Police Station at Vadodara for the offence punishable under sections 354, 509 and 114 of IPC and Section 3(1)(10)(11) of the Atrocities Act.
2. Learned advocate Mr. Nandish Thackar appearing for the applicants submits that the applicants are the doctors by profession and running a hospital in the name and style as Subhechcha Hospital at Vadodara since last one year. The respondent No.2 original complainant was working as a nurse in the said hospital. He further submits that the allegations levelled in the FIR are that on the fateful day, at the time of carrying out the laparoscopy surgery of one patient, the applicant No.1 had put certain ornaments (finger rings) and wrist watch in the pocket of the apron worn by the respondent No.2 and the respondent No.2 did not have any knowledge that how many rings were put in her pocket. It it alleged in the complaint that after the operation, she had given back all the ornaments to the applicant No.1, i.e, two rings and one wrist watch, however, the applicant No.1 asked for the third ring which was missing. Therefore, they all started searching for the third ring but did not find the same. Thereafter, both the applicant took the respondent No.2 in one room and asked her to remove all her cloths as they want to make a search of her. Accordingly, she removed her cloths but nothing was found. Thereafter, the other two other male co-accused also came in the room and carried out a search. With this sort of allegations, the complaint was registered. Learned advocate Mr. Thackar further submits that pursuant to the registration of the FIR, Page 2 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined investigation was ensued and at the end of the investigation, the investigating officer filed a report before the concerned Magistrate specifically stating that the involvement of the applicant-accused is not found out and, therefore, they are required to be exonerated, which was accepted by the Magistrate and the applicants were exonerated, however, the charge-sheet was filed qua the other co-accused. He also submits that as the applicants have already been exonerated, are no longer remains to be the accused and, therefore, the present FIR qua the applicants deserves to be quashed.
3. Learned advocate Mr. Thackar submits that thereafter, the father of the complainant made certain applications to the Human Right Commission, on the basis of which, the Human Rights Commission sent a letter to the Investigating Officer to take action against the applicants. Accordingly, the action was taken by the Investigating Officer by issuing notice under Section 41(A) of the Cr.P.C. He further submits that as soon as the said notice was served to the applicants, immediately the applicants approached this Court by way of filing the present application and the then Coordinate Bench of this Court stayed the further proceedings of the Impugned FIR qua the applicants-accused. Learned advocate Mr. Thackar also submits that thereafter trial qua the other co-accused was proceeded with, and ultimately at the end of trial, they have been acquitted by the trial court, a copy of order of acquittal has also been placed on record by the learned advocate Mr. Thackar. Learned advocate Mr. Thackar also submits that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute the offence of Page 3 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined atrocities are spelt out as in the impugned FIR itself, it is stated by the complainant that she was addressed by the applicant No.1 as 'Beta'. Therefore, considering the above stated factual aspects, continuation of the criminal proceedings against the applicants-accused would be nothing, but an abuse of the process of law.
4. Learned advocate Mr. Kirit Patel appearing on behalf of the original complainant submits that after the occurrence of the incident, on the very next day, the complaint came to be filed by the complainant specifically narrating the entire sequence of events in a very categorically terms stating specific roles and names of each accused. Despite the said fact, reasons best known to the investigating officer, the applicants have been exonerated from the charges and no charge-sheet has been filed against them. He further submits that some derogatory words against the caste of the complainant were used by the applicants-accused. Learned advocate Mr. Patel further submits that the applicants herein cannot get benefit of being the lady accused persons, and the opinion given by the investigating officer that the offence of outraging the modesty of a woman cannot be made out against the applicants as both the victim as well as the applicants are female is not in consonance with the settled proposition of law and, therefore, the present application may not be entertained and the same be rejected.
5. Learned APP Mr. Dhawan Jayswal appearing for the respondent-State submits that he has adopted all the arguments canvassed by learned advocate Mr. Kirit Patel and prays that the present application may not be entertained.
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6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should quash the complaint.
7. I am conscious of the restrictions to be exercised by the Court of Law while considering the petition under Section 482 of the Code of Criminal Procedure. However, in the matter on hand, I find that it is a clear cut case of abuse of process of law. The records prima facie reveal that the applicants are the doctors by profession and the respondent No.2 was working as a nurse in the hospital of the applicants. I also find that in the affidavit-in-reply filed by the respondent No.2 while opposing the present application, she has stated that some derogatory words against her caste had been uttered by the applicants, however, in the entire body of the complaint, I do not find a single allegation of uttering any derogatory word by the applicants against the caste of the respondent No.2. Even, in the complaint it has been specifically stated that she was being addressed by the applicant No.1 as 'Beta' and the said word generally being used for showing love and affection towards any person. Moreover, after the preliminary investigation, as no material was found against the applicants- accused, the investigating officer filed a report exonerating the applicants-accused from the charges levelled against them. Thereafter, the investigation was proceeded against the other two accused persons and ultimately charge-sheet also came to be filed against them. Thereafter, the trial was also proceeded with qua those two co-accused persons, and the learned trial Page 5 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined judge, after apprecaiting the entire materials available on record, acquitted the two co-accused persons vide order dated 05.05.2018, which as per the record, has not been challenged as on date. Thus, when the two co-accused persons, against whom the Investigating Officer thought fit to file charge-sheet on the basis of some concrete materials found, have already been acquitted by the trial court after examining the the entire evidence available on record, there is no question now to ask the applicants herein to face the trial. It also appears from the FIR that the respondent No.2 was working in the said hospital since last four years, and there is not a single whisper of any kind of atrocity being meted out to the respondent No.2 by the applicants during those four years. Furthermore, the trial against other two co-accused persons has been proceeded with and ultimately they have been acquitted by the trial court. Thus, considering the overall materials available on record, I am of the view that now no fruitful purpose would be served to ask the applicant-accused to face the trial.
8. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in the case of State of Haryana vs. Bhajan Lal, reported in (1992) Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive, the high court shall not hesitate in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure to quash the Page 6 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined proceeding. Under category seven (7) as enumerated in Bhajan Lal (supra), it is held thus, "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". There cannot be any dispute that the inherent power given to the High Court under Section 482 of the Code of Criminal Procedure is with a purpose and object of advancement of justice. Similar observations are also made by the Apex Court in the case of Vineet Kumar and Others vs. The State of Uttar Pradesh and Another, reported in (2017) 13 SCC 369. The facts and circumstances of this case clearly attract category No.7 as quoted supra.
9. So far as the allegations of atrocities are concerned, it is a settled principle of law that to make out an offence under the Atrocities Act, the prima facie ingredients to constitute the said offence, is required to be made out, and one of the most important ingredients is that the offence alleged to have been committed must be at the 'public place'. In this regard, I may quote the relevant observations made by the Hon'ble Supreme Court in the case of Asmathunnisa vs. State of Andhra Pradesh, reported in 2011 (11) SCC 259, which read thus;
"6. The appellant has also been implicated because she had accompanied her husband to the house of the complainant. Admittedly, the appellant did not utter offending words. It would be relevant to set out relevant provisions of law as under:
7. Section 3 sub-section (1) sub-section (x) of the 1989 Act is reproduced as under:Page 7 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024
NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined "3. Punishments for offences of atrocities. - (1) Whoever, not being a member of a Scheuled Caste or a Scheduled Tribe,-
xxx xxx xxx intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
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 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 ScheduledTribe.
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 Page 8 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined 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 sub-section (ii) and the other as defined under sub-
section (x) of the said section. A combined reading of the two sub-sections 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
sub-section (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 sub-section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in sub-section (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 sub-section (ii) or would have used the expression "in any public place".
13. Insult contemplated under sub-section (ii) is different Page 9 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024 NEUTRAL CITATION R/CR.MA/848/2016 JUDGMENT DATED: 26/04/2024 undefined from the insult contemplated under sub-section (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 sub-section
(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."
10. In the result, this application succeeds and is allowed. The first information report being C.R. No.I-25 of 2009 registered before the J.P. Nagar Police Station at Vadodara is hereby ordered to be quashed. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 10 of 10 Downloaded on : Fri May 10 21:01:55 IST 2024