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2011 DIGILAW 167 (GUJ)

A. B. VATALIYA (P. S. I. ) v. STATE OF GUJARAT

2011-03-07

P.P.BHATT

body2011
JUDGMENT P. P. BHATT, J.:- The present application is filed under Sec. 482 of the Code of Criminal Procedure, 1973 ('the Code' for short) to quash and set aside the complaint at Annexure 'A' being Criminal Case No. 1125 of 2003 pending before the Court of learned J.M.F.C., Gandhinagar and summons/process issued therein under Sec. 504 of I.P.C. qua the present petitioner. 2. The aforesaid complaint, being Criminal Case No. 1125 of 2003, was instituted for the offences punishable under Secs. 170, 216(A), 218, 219, 419, 420, 455, 504, 506(2) and 114 read with Sec. 34 of I.P.C. against total five accused persons. The petitioner herein is accused No.4, against whom summons/process under Sec. 504 of I.P.C. has been issued. 3. Learned Advocate Shri Hardik A. Dave for the petitioner has pointed out facts stated in Para 4 of the petition and submitted that the petitioner is accused No.4 in the complaint filed by Girdharibhai Khataumal Chandak respondent No. 2 herein. The allegations made in the complaint dated 28-1-2003 against the present petitioner are with regard to use of abusive language after having called him (complainant) in the Police Station. On the basis of this complaint, the learned J.M.F.C. has passed an order for issuance of process under Sec. 504 of I.P.C. against the petitioner-accused No.4. It is submitted that the averments made in Para 4 of the complaint do not constitute an offence under Sec. 504 of I.P.C. Learned Advocate for the petitioner has referred to Sec. 504 of I.P.C. and submitted that from the allegations made against the petitioner in the complaint, none of the ingredients are emerged so as to attract the requirement of Sec. 504 of I.P.C. However, the learned J.M.F.C., Gandhinagar has issued process against the present petitioner-accused No.4. The learned Advocate for the petitioner made following submissions : 3.1. That looking into the allegations against the petitioner and taking the same to be true, it is stated that the petitioner has used abusive language against the complainant-respondent No.2 hereinafter calling the respondent No. 2 to Pethapur Police Station. It is respectfully submitted that in the instant case cognizance of the offence against the present petitioner would require previous sanction of the State Government under Sec. 197 of the Code. 3.2. It is respectfully submitted that in the instant case cognizance of the offence against the present petitioner would require previous sanction of the State Government under Sec. 197 of the Code. 3.2. That the J.M.F.C. has wrongly placed reliance on the decision of the Mumbai High Court reported in 1991 Cri.LJ 1481 and has wrongly held that sanction would not be required to prosecute the petitioner in the instant case. 3.3. That the Hon'ble Supreme Court has in a catena of decisions held that sanction as required under Sec. 197 of the Code is mandatory and that the Magistrate cannot take cognizance of the offences against public servants without the necessary sanction. In this context, it is submitted that it is now well settled that Sec. 197 of the Code culls out an exception to Sec. 190 of the Code and no Court can take cognizance under Sec. 190 of the Code if the offence is alleged against a public servant without sanction as envisaged under Sec. 197 of the Code. Thus, the learned Judge has erred in considering the mandatory requirement of Sec. 197 and failed to consider in its true perspective. 3.4. It is respectfully submitted that the ingredients of Sec. 504 of I.P.C. are intentional insult and provocation intending and knowing that such provocation would cause a person to break public peace or to commit any other offence, and therefore, even otherwise no offence much less an offence under Sec. 504 of I.P.C. can be said to be made out against the present petitioner. 3.5. That in the instant case, even if all the averments as stated in the complaint are taken to be completely true, then also it cannot be said that the petitioner has intentionally insulted and given provocation to the present complainant-respondent No.2 as would cause him to break public peace or to commit any other offence. It is respectfully submitted that the mens rea in the said case is missing as by no stretch of imagination can it be said that the provocation given by the present petitioner was sufficient to cause or to break the public peace or to commit any other offence. 3.6. It is respectfully submitted that the mens rea in the said case is missing as by no stretch of imagination can it be said that the provocation given by the present petitioner was sufficient to cause or to break the public peace or to commit any other offence. 3.6. That it is well settled in a catena of judgments that for an offence under Sec. 504 of I.P.C., it is very necessary for the complainant to state the exact words which were used by the accused so that the Court may know whether the words used for the insults were sufficient to constitute an offence under Sec. 504 of I.P.C. In the instant case, the words used by the present petitioner are not stated in the complaint, and therefore, the essential ingredient of a complaint under Sec. 504 of I.P.C. is missing. 3.7. That several Courts have quashed complaints under Sec. 504 of I.P.C. only on the ground that the words used by the accused have not been stated in the complaint, and therefore, whether the words or the insults would be sufficient to constitute an offence under Sec. 504 of I.P.C. cannot be inferred. 3.8. Learned Advocate for the petitioner has referred to and relied upon the following judgments in support of his arguments : (i) Prem Pal Singh v. Mohan Lal, reported in 1981 Cri.LJ 1208. (ii) Jodh Singh v. State of U.P., reported in 1991 Cri.LJ 3226. (iii) Amitabh Adhar v. N.C.T. of Delhi, reported in 2000 Cri.LJ 4772. 4. As against that, learned Advocate Shri C.H. Vora for respondent No.2 has submitted that the allegations made in Para 4 of the complaint constitute offence punishable under Sec. 504 of I.P.C., and therefore, learned J.M.F.C. has rightly issued process in the matter. Learned Advocate Shri Vora has also referred to Sec. 504 of I.P.C. while making submissions and submitted that the allegations made in the complaint are more than sufficient for issuance of process under Sec. 504 of I.P.C. It is submitted that use of abusive language/words amounts to insult, and therefore, the Court of learned J.M.F.C. has rightly taken cognizance of the matter and issued process against the petitioner. 4.1. 4.1. Learned Advocate Shri Vora has also vehemently submitted that the judgments cited by learned Advocate for the petitioner are not applicable to the facts and circumstances of the present case and these judgments are nothing but re-writing of Sec. 504 I.P.C. because Sec. 504 I.P.C. does not provide other requirements as discussed in the judgments cited by learned Advocate for the petitioner. 4.2. It is further submitted that since the behaviour or action on the part of the petitioner cannot be treated as part of his duty, and therefore, the learned J.M.F.C. has rightly not extended protection under Sec. 197 of the Code and issued process against him. 4.3. The learned Advocate Shri Vora has also cited the judgment of Bombay High Court reported in 1991 Cri.LJ 1481 which was referred to in the order passed by the learned J.M.F.C. 5. I have considered the rival submissions, the averments made in the petition and other material on record as well as the order passed by the learned J.M.F.C., Gandhinagar. On perusal of the complaint dated 28-1-2003, it appears that in Para 4 of the said complaint, the allegations are levelled against the present petitioner-accused No.4 that respondent No.2 was called in Police Station and there, P.S.I.- Shri A. B. Vatalia used abusive language and behaved with him as if respondent No.2 was an accused person who has committed some serious crime. Learned J.M.F.C., Court No.2, Gandhinagar has taken note of these allegations in its order and believed that the behaviour of the petitioner-accused No.4 is sufficient to constitute an offence as the ingredients of Sec. 504 of I.P.C. are satisfied, and therefore, he has issued process against the present petitioner-accused No.4. 6. Therefore, now before arriving at any conclusion as to whether the learned J.M.F.C. has rightly issued the process qua the present petitioner or has committed any error while doing so, firstly Sec. 504 of I.P.C. is required to be seen, which reads as under : "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 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." 7. Likewise, the relevant abstract of the judgments cited by the learned Advocate for the petitioner Mr. Hardik Dave are also required to be considered as the same are relevant for the purpose of deciding this case. In Jodh Singh (supra), the Court observed thus : "5. On a perusal of the above quoted Section, it is quite clear that provisions of Sec. 504, I.P.C. are attracted only when firstly, the accused insults the complainant; secondly, the insult must be of such a nature that it should be provocation to the complainant; and thirdly, that the accused intended or knew that the provocation was likely to cause the complainant to either break public peace or commit any other offence. If anyone of these three ingredients is missing, the accused cannot be said to have committed an offence under Sec. 504, I.P.C. 6. In a complaint under Sec. 504, I.P.C. the complainant must mention the actual words which were used by the accused while insulting him/her, otherwise the Court will not have enough material before it to come to a conclusion whether the words used by the accused amounted to intentional insult. Furthermore, the complainant must give out in the complaint that the accused intended or knew that insulting words used by him were like y to provoke the complainant in either to break public peace or to commit some other offence. 7. In the present case, the only allegation in the complaint is that when the complainant resisted the attempts by the accused to evict her forcibly from the land in her tenancy, the accused persons abused her in filthy words. The complainant has not given out the actual words in her complaint which were said to have been used by the accused. Not only this, the complainant has also not stated in her complaint that she was provoked by the insulting abuse. Where the complaint nowhere discloses that the insulting words used by the accused had provoked her or that the accused intended or knew that the provocation was likely to cause the complainant either to break the peace or commit any other offence, the trial Court was not justified in summoning the accused for the offence under Sec. 504, I.P.C. Under these circumstances, the order of the learned Magistrate summoning the applicants for the offence under Sec. 504, I.P.C. cannot be upheld." 7.1. In Prem Pal Singh (supra), it has been observed as under: "It may be remarked that the term 'abusive language' is very elastic and of wide amplitude and the words falling within the ambit of this term may not always amount to insult. On the basis of the mere allegation that the petitioners used abusive language, no charge under Sec. 504 I.P.C. could be framed against the petitioners. This charge thus also cannot be sustained." 7.2. In Amitabh Adhar (supra), the Court observed thus : "Mere threat causing no alarm to complainant is not an offence under Sec. 506." 8. As discussed above, the complaint dated 28-1-2003 appears to be vague and no specific allegations are made which can show that the ingredient of Sec. 504 of I.P.C. are attracted qua accused No.4 for issuance of process. In order to appreciate whether the language used by the petitioner would amount to an insult of the type as would invoke provocation of the nature mentioned above, it was necessary to know that what were the abusive words alleged to have been used by the petitioner. In the instant case, no such abusive words are mentioned or specified in the complaint. Therefore, it cannot be said that the language used by the petitioner would amount to an insult of the type as would invoke provocation of the nature stated above. 9. The order passed below Exh. I in Criminal Case No. 1125 of 2003 by the learned J.M.F.C., Court No.2, Gandhinagar with regard to issuance of process qua accused No.4 is also required to be appreciated keeping in mind the provisions contained in Sec. 197 of the Code, where prior sanction is necessary before prosecuting any public officer. The relevant part of Sec. 197 of the Code reads as follows : "197. The relevant part of Sec. 197 of the Code reads as follows : "197. Prosecution of Judges and public servants :- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government." 10. According to learned J.M.F.C., protection under Sec. 197 of the Code would not be available to the petitioner as the behaviour of the petitioner cannot be treated as part of his duty. The learned Advocate for respondent No.2 has also tried to justify this view and submitted that the police officer are supposed to behave in a manner befitting to the post they hold and are supposed to maintain the dignity of the responsible public post. Any misuse of power by such officer would disentitled him to get protection under Sec. 197 of the Code. The learned Advocate for the respondent has cited judgment of Bombay High Court reported in 1991 Cri.LJ 1481 in support of his arguments. It is submitted that the said judgment was also relied upon before the learned J.M.F.C. and it was made applicable in the present case. 11. The aforesaid submission cannot be accepted as the complainant has not specified in his complaint about the nature of abusive language used by the petitioner. It is submitted that the said judgment was also relied upon before the learned J.M.F.C. and it was made applicable in the present case. 11. The aforesaid submission cannot be accepted as the complainant has not specified in his complaint about the nature of abusive language used by the petitioner. As discussed hereinabove, while applying ratio of various judgments referred by the learned Advocate for the petitioner, vague averment regarding use of abusive words or language do not constitute offence under Sec. 504 of I.P.C., and therefore, in the opinion of this Court, the petitioner is also entitled to have protection under Sec. 197 of the Code; otherwise, the object behind Sec. 197 of the Code would be defeated. The public officer while discharging his duty has to face situation where some vested interest or disgruntled elements with a view to cause harassment, file false complaint to achieve their ulterior motive. Therefore, the Lawmakers have taken due care and introduced this Section so as to provide adequate protection to the public servant. In light of aforesaid position, the learned Judge has also failed to appreciate the facts of the case in its true perspective, and thereby, failed to appreciate this very material aspect before issuing process against accused No.4. 12. In this view of the matter, this Court is of the opinion that issuance of process qua accused No.4 in Criminal Case No. 1125 of 2003 below Exh. 1 dated 28-1-2003 deserves to be quashed and set aside. The petition is allowed accordingly. The complaint as also process issued qua the petitioner-accused No.4 in Criminal Case No. 1125 of 2003 below Exh. 1 by order dated 28-1-2003 is quashed and set aside. 13. Rule is, made absolute to the aforesaid extent. Direct Service is permitted. Petition allowed.