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2017 DIGILAW 910 (GUJ)

Noghanbhai Dudabhai Dodiya v. State of Gujarat

2017-04-28

N.V.ANJARIA

body2017
JUDGMENT : N.V. Anjaria, J. 1. By means of present application, invoking Section 482 of the Code of Criminal Procedure, 1973, the applicant herein-original accused has approached this Court praying for quashment of the First Information Report bearing Crime Register No. II-3103 of 2014 registered on 22nd July, 2014 with the Kodinar Police Station, District Gir Somnath. 2. The said First Information Report was in connection with offences alleged under Sections 352, 504 of the Indian Penal Code, 1860, as well as for the alleged offence under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985. The F.I.R. which came to be registered on 22nd July, 2014 at 1515 hours was in respect of the alleged incident which took place at around 1000 hours on 08th September, 2013. 3. The complainant alleged that on 08th September, 2013 he was going from Village Nanavada to Village Kaj on his vehicle Scooty; the applicant herein came on his motorcycle on the opposite direction driving his motorcycle straight towards the complainant; the complainant was forced to leave his vehicle on the side. The applicant herein uttered abusive language and questioned the complainant as to why he had registered a complaint against his nephew under the Atrocity Act. It was alleged that thereafter he spoke abusive words about the caste while leaving. At that time, it was alleged, one Bhanuben Dilipbhai and Lalitbhai Nanjibhai of the village were coming towards Village Kaj and who had seen the incident. 3.1 It was alleged that after some time the applicant came back near the house of the complainant and passed from the public road. The complainant stated that he and his wife was standing there. The applicant stopped his vehicle and hurled abuses. The complainant stated that they were frightened, therefore came to Kodinar. The complainant stated that he got typed a complaint and the same was given to the Police Station. The complainant thereafter stated that though the police had asked him to come to police station to record a statement, because of his busy schedule he could not go. The complainant stated that they were frightened, therefore came to Kodinar. The complainant stated that he got typed a complaint and the same was given to the Police Station. The complainant thereafter stated that though the police had asked him to come to police station to record a statement, because of his busy schedule he could not go. 3.2 After narrating the above events and the sequence of happenings in the past, the complainant stated the cause for filing the instant complaint, which was that, yesterday certain persons of particular community had come to his street, and at the place of Bhanuben's shop they indulged into a quarrel and altercation and that they were quite often used to harass him. Therefore, it was stated, a complaint was again required to be given. The reason which was mentioned as root cause for dispute was that before one year since a complaint under the Atrocity Act was filed against the nephew of the applicant, the applicant had kept grudge and had been harassing the complainant. 3.3 The complainant finally stated about not going to the police station for recording statement pursuant to his earlier complaint in writing that he had conveyed to the police that a settlement was arrived between them, therefore he would come late for settlement but since settlement could not work out, the instant complaint was filed. The delay in filing the complaint was sought to be explained offering the aforesaid reason that settlement was arrived at but finally did not materialise. 3.4 This Court has issued Rule in this application on 21st January, 2016 and granted ad-interim relief staying further proceedings in connection with the F.I.R. sought to be quashed. The relief granted remained operative throughout. 4. Heard learned advocate Mr. K. J. Panchal for the applicant, learned Additional Public Prosecutor Mr. L. B. Dabhi for the State and learned advocate Mr. Manoj Shrimali for respondent No. 2-original complainant. 4.1 According to submissions of learned advocate for the applicant the complaint was false one and that no such incident as alleged had taken place. It was submitted that the applicant is a Teacher by occupation and is a law abiding citizen. Not only the complaint was frivolous, it was submitted, but the same was ill-motivated as well. It was further highlighted that similar complaint was earlier filed but the earlier one was never pursued. It was submitted that the applicant is a Teacher by occupation and is a law abiding citizen. Not only the complaint was frivolous, it was submitted, but the same was ill-motivated as well. It was further highlighted that similar complaint was earlier filed but the earlier one was never pursued. It was next submitted that there was a gap of almost 10 months between the date of alleged incident and filing of complaint. Learned advocate next submitted that several First Information Reports were filed against the first informant who was engaged in the activity of bootlegger. It was submitted that the aspect of character and antecedents of the complainant may be weighed by the Court as it rendered the entire complaint devoid of credibility. He relied on decisions in M. Saravana Porselvi v. A.R. Chandrashekar alias Parthiban, (2008) 11 SCC 520 as well as another decision also of the Apex Court in Harshendra Kumar D. v. Rebatilata, (2011) 3 SCC 351 to submit that the other F.I.R. filed against the first informant were admitted documents therefore they could be considered by the Court in respect of the bona fide of the complainant. 4.2 On the other hand, learned Additional Public Prosecutor opposed the prayer to quash the F.I.R. in question. He submitted, countering the case of the applicant, that character cannot be a ground to quash the F.I.R. He submitted that the F.I.R. mentioned two eye-witnesses. Learned advocate for the private complainant, adopting the submissions of learned Additional Public Prosecutor, further submitted that the offences were made out from the averments in the First Information Report and there was no good reason for the Court not to disbelieve the statements in the F.I.R. 5. Having carefully and attentively considered the allegations in the F.I.R. and the tenor and nature thereof, appreciating the uncontroverted material placed on record, the facts of the case revealed certain aspects which raise serious doubt on the credibility of the complaint. First is the delay of more than 10 months in lodging the F.I.R. The second is the reason given to explain delay that there was a settlement which dissuaded the first informant from pursuing the complaint which was earlier submitted to the police, thereafter stating that the settlement failed, due to which the instant complaint was required to be filed. First is the delay of more than 10 months in lodging the F.I.R. The second is the reason given to explain delay that there was a settlement which dissuaded the first informant from pursuing the complaint which was earlier submitted to the police, thereafter stating that the settlement failed, due to which the instant complaint was required to be filed. Third is the conduct of the complainant-in the F.I.R. in question itself it was stated that earlier a complaint was given to the police; in that complaint allegation was made about abusive language having been used about the caste of the complainant, however it was stated that due to pre-occupation, the complainant could not go to the police station to record his statement; an incident of altercation was mentioned to project it as a reason to lodge the instant complaint again. Inherent contradictions were found in the complaint, seriously discounting its creditworthiness. 5.1 Besides above, certain facts about the character and antecedents of the first informant were placed before the Court. The applicant, by filing further affidavit mentioned about such aspects becoming attendant to the instant F.I.R., which were pinpointed by learned advocate for the applicant to be as under-(i) The first informant-complainant was detained in past for his bootlegging activity and was a bootlegger, (ii) on 30th July, 2014, a common and collective representation signed by the Chairmen of different co-operative societies, the Presidents of Taluka Panchayats and Nagarpalikas as well as signed by leading citizens, was submitted to the District Superintendent of Police about the illegal activities including filing of several false atrocity complaints and harassing the people by the complainant, (iii) number of F.I.R.s were filed against the present complainant which included (a) F.I.R. bearing Crime Register No. II-164 of 2002 with Kodinar Police Station for drawing illegal connection, (b) F.I.R. bearing Crime Register No. II-95 of 2004 with Kodinar Police Station for assaulting a lady with knife and giving abuses to her, (c) F.I.R. bearing Crime Register No. II-5213 of 2008 under the Gujarat Prohibition Act for possessing english liquor, (iv) F.I.R. bearing Crime Register No. 75 of 2014 with Kodinar Police Station by member of scheduled caste regarding outraging modesty of a girl. 5.2 The aforesaid details reflect on the character antecedents of the complainant. 5.2 The aforesaid details reflect on the character antecedents of the complainant. Copies of the aforementioned representation by the co-operative societies and the local bodies, order of the competent authority passed under the Prevention of Anti-Social Activities Act against the and the copies of the F.I.R.s mentioned hereinabove were on record of the petition. Learned advocate for the applicant could successfully rely on decision in M. Saravana (supra) and Harshendra Kumar D. (supra) for the proposition that though ordinarily defence of the accused cannot be a consideration for the Court, however when there are admitted documents, the Court could accept the position obtainable there from. In M. Saravana (supra) the facts were that the appellant had married to respondent No. 1 around 01.12.1993 but the spouses were living separately since 1996. A divorce agreement came to be entered into on 24.07.1996 by the appellant which is a registered document. Subsequently, F.I.R. was filed and in the proceedings of quashment, the Court relied on the divorce agreement observing that it was different aspect whether customary divorce was legal or illegal, but the fact that an agreement was entered into and the appellant had received alimony there under was admitted and the document which was registered one, could be accepted for its contents. The proposition that the admitted document could be considered was also a position of law reiterated by Harshendra Kumar D. (supra). 6. Frivolity of allegations, vexatious nature of the complaint and the abuse of criminal machinery are the judicially recognised parameters for quashing the F.I.R. or criminal proceedings. In the various categories mentioned setting out the parameters, the Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp 1 SCC 335 and line of decisions thereafter have laid down that a complaint may be quashed which is vexatious, frivolous or one which lacks in its bona fide rendering the criminal proceedings to be an abusive or harassive process. The submission put-forth by learned advocate for the applicant that the character of the complainant may be a consideration in judging the aforesaid attributes for the criminal proceedings, could not be brushed aside. The antecedents of the complainant have to be treated as germane, in a given set of facts, to judge the bona fide and creditworthiness of the complaint filed. The antecedents of the complainant have to be treated as germane, in a given set of facts, to judge the bona fide and creditworthiness of the complaint filed. 6.1 The character personality, the antecedents and the conduct-bona fides of the complainant can create a dent in the credentials of the complaint, in a given case. The bona fide of the complainant may be an attribute for credence of the complainant himself. The conduct of the complainant, his antecedents and the character attributes cannot be said to be discardable factors, more particularly when, as in the present case, the attendant aspects showing such attributes, make the complaint vexatious and abusive, where the complainant was shown demonstrably on facts, to be acting for settling scores by filing the complaint. 6.2 The conduct of the complainant was one which smacked of wrecking vengeance. The aspects that he was a bootlegger under the PASA Act, that he faced several F.I.R.s for different offences were the informing factors. Because of complainant's own conduct in filing the present F.I.R., the nature of the allegations in the F.I.R. and other circumstantial aspects emanating from the material available, the total credibility of the complainant nose-dived. 6.3 In Haramanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 , the Apex Court stated that there may be an exceptional circumstance in the case which would justify exercise of powers under Section 482, Cr.P.C. The character attributes, the antecedents and the conduct of the complainant, when the other attendant aspects stand satisfied, could be viewed and treated as a special circumstance relevant for exercise of inherent powers and quash the complaint or criminal proceedings, as the case may be. 6.4 In addition to the aspect of reliability of the complainant which was at serious stake and crumbling in view of what is stated above, even otherwise, on a reading of the allegations in complaint, considered with the background of filing of the complaint and the conduct of the complainant, the complaint was found to be suffering from legal vices rendering it liable to be quashed. Placed in the total background as discussed above, no offences including alleged under the Atrocity Act were made out and were apparently found to be false and frivolous. Criminal prosecution cannot be permitted to be continued for the sake of its continuance, when the complaint was evidently harassive in nature. 7. Placed in the total background as discussed above, no offences including alleged under the Atrocity Act were made out and were apparently found to be false and frivolous. Criminal prosecution cannot be permitted to be continued for the sake of its continuance, when the complaint was evidently harassive in nature. 7. For the reasons and the discussion aforestated, the F.I.R. bearing Crime Register No. II-3103 of 2014 registered on 22nd July, 2014 with the Kodinar Police Station, District Gir Somnath is hereby quashed. Rule is made absolute.