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2018 DIGILAW 1255 (GUJ)

Pratik Rajeshbhai Patel v. State of Gujarat

2018-12-12

A.S.SUPEHIA

body2018
JUDGMENT : A.S. SUPEHIA, J. 1. By way of the present writ application, the applicant – original accused seeks quashing of First Information Report (F.I.R.) being C.R. No.II3056 of 2017 registered with Himatnagar “B” Division Police Station, Dist.Sabarkantha for the offences punishable under sections 504, 506(2) of the Indian Penal Code, 1860 (for short “the IPC”) as well as Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Atrocities Act”). (2) The facts of the case as mentioned in the memo of application are as under: 2.1 The contents of the F.I.R. reveal that the first informant i.e. respondent No.2 was serving at Reliance Petrol Pump as a supervisor run by the applicant at Bhiloda in 2016. It appears from the contents of the F.I.R. that there were some transactions between the applicant as well as the complainant and for payment of some amount, and a civil dispute was going on at the concerned court at Bhiloda. It is also mentioned that the dispute was pertaining to a cheque dated 06.01.2017 for Rs.5,00,000/-drawn on the State Bank of India, HimatnagarMotipura Branch, which was issued by the respondent No.2 to the applicant. The said cheque issued by the respondent No.2 to the applicant was returned with the endorsement of “stop payment”. Thereafter, the applicant had filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”) and for the same proceedings were going on at Bhiloda court under the N.I. Act. The first complainant has submitted that on 15.06.2017 he as well as the applicant were together attended the hearing before the Labour Commissioner, Himatnagar and when the said matter got adjourned, respondent No.2 came out of the office with his friends – Jadeja Ranjitsinh Gambhirsinh and Chauhan Vikramsinh Takhatsinh and at that time the applicant sent Short Message Service (for short “SMS/message”) to him to come out of the office of the collector and accordingly, at around 12 O'clock, he went outside the office of the collector, where the applicant was present with another person and he started abusing him and also used derogatory words towards his caste. It is also stated by respondent No.2 that he had given threats and asked him to deposit the cheque in his name and also threatened him that he would be done to death when he comes to the Bhiloda court. It is further alleged that the applicant on 03.06.2017 and on 15.06.2017 had sent filthy text messages insulting his caste on his mobile and the same are being produced along with the complaint. The tenor of the F.I.R. reveals that respondent No.2 was abused by the applicant on 15.06.2017 outside the office of the collector. It is also alleged by respondent No.2 that the applicant had used derogatory words in relation to his caste. Further, the contents of the F.I.R. also reveal that on 03.06.2017 and 15.06.2017, the derogatory messages insulting the caste were also sent by the applicant. 3. Learned advocate appearing on behalf of the applicant has submitted that the entire F.I.R. is a counterblast to the complaint made by the applicant to respondent No.2 under section 138 of the N.I. Act. He has submitted that the applicant had also made representations to various authorities, including the Hon'ble Chief Minister of Gujarat State, the Home Minister of Gujarat State and various other authorities with all the relevant documents requesting that respondent No.2 will file a complaint under the Atrocities Act and harass and humiliate him, one such representation is made on 17.06.2017. Reliance is placed upon the judgment of this court in the case of Diren Prafulbhai Shah Vs. State of Gujarat & Anr., 2016 (4) G.L.R. 2785 for the proposition of law that the entire incident cannot be said to have been committed in “public view”. He has also pointed out various relevant provisions of the Atrocities Act. He has also submitted that the SMSs alleged to have been sent by the applicant to respondent No.2 are concocted. 3.1 Reliance has been placed by the learned advocate upon the order dated 06.01.2016 passed by this court in Criminal Misc. Application No.15188 of 2014 (in the case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja Vs. State of Gujarat & Anr.) in support of his submissions that if there is no averments in the F.I.R. that respondent No.2 belongs to a member of a Schedule Caste and/or Schedule Tribes then the allegations that the offence committed under the Atrocities Act cannot be made out. State of Gujarat & Anr.) in support of his submissions that if there is no averments in the F.I.R. that respondent No.2 belongs to a member of a Schedule Caste and/or Schedule Tribes then the allegations that the offence committed under the Atrocities Act cannot be made out. He has submitted that in the present case respondent No.2 has not specifically stated that he belongs to the schedule caste or schedule tribes category. 3.2 Reliance is also placed on the unreported judgment of this court dated 24.11.2017 passed in Criminal Misc. Application No.12530 of 2013 (in the case Rajesh Thanaji Soni Vs. State of Gujarat) and has submitted that the impugned F.I.R. is liable to be quashed and set aside since it is a counterblast to the complaint, which was filed by the applicant. Reliance is also placed by the learned advocate on the judgment of this court in the case of Noghanbhai Dudabhai Dodiya Vs. State of Gujarat & Anr., 2017 (4) G.L.R. 3487 and has submitted that the offences under the Scheduled Caste and Scheduled Tribes are liable to be quashed and set aside since prima facie it is found that the ingredients in the F.I.R. do not constitute offences under the Atrocities Act. Reliance is also placed upon the judgment dated 13.06.2011 passed by this court in Criminal Misc. Application No.134 of 2011 by the learned advocate and has submitted that for the purpose of quashing of a complaint what is required to be seen is whether the complaint discloses prima facie ingredients of the offences or not and if do not the complaint can be quashed. 3.3. Lastly, the learned advocate for the applicant has tender an affidavit dated 11.12.2018 along with an affidavit of one Shri Rathod Manojkumar Rameshbhai on stamp paper of even date stating that the mobile phone bearing SIM Card No.8401830901, from which the respondent No.2 has alleged that the derogatory messages towards his caste have been sent, has been stolen from the petrol pump on 02.12.2016 in the absence of the applicant. Thus, the learned advocate has submitted that the messages sent from the mobile phone bearing SIM Card No.8401830901 cannot be relied upon since the said mobile phone was already stolen on 02.12.2016. Thus, the learned advocate has submitted that the messages sent from the mobile phone bearing SIM Card No.8401830901 cannot be relied upon since the said mobile phone was already stolen on 02.12.2016. In this view of the matter, the learned advocate has submitted that the impugned F.I.R. as well as all other proceedings arising there from are required to be quashed and set aside. 4. Learned Additional Public Prosecutor has submitted that the impugned F.I.R. cannot be quashed at this stage since, prima facie the offences alleged in the F.I.R. are made out against the applicant. He has submitted that as alleged in the F.I.R., the incident had occurred in a “public view”, outside the collector office. He has also submitted that the respondent No.2 has specifically alleged that the derogatory words are used by the applicant knowingly that he belongs to Schedule Caste category. He has placed reliance on the SMSs text report of the mobile phone bearing SIM Card No.8401830901 and has submitted that the details of the text messages would reveal that the applicant was having the knowledge that respondent No.2 belongs to Scheduled Caste category. He has submitted that the SMSs were sent from the mobile of the applicant on 03.06.2017 and on 15.06.2017. The learned Additional Public Prosecutor has further submitted that further investigation reveals that the offences have been committed in a public view and with an intention to humiliate respondent No.2 in public place. 5. Learned advocate appearing on behalf of respondent No.2 – first informant has submitted that the applicant had sent messages containing abusive words in the name of the caste of respondent No.2 on 03.06.2017 and on 15.06.2017. She has submitted that when the applicant informed respondent No.2 to come near the collector office he had accordingly went there along with his two friends and at that time the applicant insulted him by using abusive words towards his caste. Thus, she has submitted that the impugned F.I.R. may not be quashed. 6. Heard the learned advocates appearing on behalf of the respective parties. I have perused the record of the case. 7. Thus, she has submitted that the impugned F.I.R. may not be quashed. 6. Heard the learned advocates appearing on behalf of the respective parties. I have perused the record of the case. 7. It appears that when respondent No.2 filed the F.I.R. on 27.06.2017 making the allegations against the applicant for the offences under the Atrocities Act by specifically stating that the applicant has sent derogatory text messages abusing his caste, the applicant has filed an affidavit dated 11.12.2018 making out completely a new case that his mobile phone having SIM Card No.8401830901 was stolen from the petrol pump on 02.12.2016 in his absence. No police complaint about stealing of the said mobile phone has been registered by the applicant before any authorities. Thus, the defence of the applicant by filing such an affidavit before this court for the first time making out the case that the mobile phone, from which the disparaging text messages were sent, has been stolen is nothing but an afterthought and does not inspire any confidence and the same is liable to be rejected at the very threshold. 8. Sections 3(1)(r)(s) and 3(2)(va) of the Atrocities Act, which are relevant for the present read as under: “3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (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; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view; 3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe," (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.". 9. 9. The contents of the F.I.R. reveal that the incident had occurred after the respondent No.2 as well as the applicant came out from the Court near the Collector office after the proceedings of the matter were over and the alleged incident occurred near the collector office which, in the considered opinion of this court, can be said to be a “public place” having a “public view”. The ingredients of the F.I.R. also reveal that the applicant was having knowledge that respondent No.2 belonged to Schedule Caste. The contents of the F.I.R. also reveal that the respondent no.2 has specifically stated that the applicant has used derogatory language and defamatory words insulting his caste. The contents of the text messages, which are produced before this court prima facie establish the knowledge on the part of the applicant that he was very well aware of the caste of respondent No.2 and he had deliberately used the offensive words. 10. Thus, in the opinion of this court the ingredients of section 3(1)(r)(s) of the Atrocities Act are prima facie established. As regards section 3(2)(va) of the Atrocities Act is concerned, the offences under sections 504, 506(2) of the IPC are registered against the applicant which falls under the schedule. 11. The reliance placed by the learned advocate for the applicant on the judgments cited hereinabove would not apply in the facts of the present case. The judgment of Diren Prafulbhai Shah (supra) specifically refers to the incident which has not occurred in the public view and the incident in question in the said writ petition had occurred in a closed chamber. In the present case, unquestionably, the incident has occurred outside the collector office and hence, the aforesaid judgment would not apply to the facts of the present case. Similarly, the judgment dated 06.01.2016 passed by this court in Criminal Misc. Application No.15188 of 2014 (in the case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja Vs. State of Gujarat & Anr.) would also not be apply to the facts of the present case since, prima facie it appears that the applicant was well aware about the caste of the respondent No.2 and respondent No.2 has specifically alleged in the F.I.R. that the applicant had used the derogatory words towards his caste knowingly that he belongs to such caste. 12. 12. In the considered opinion of this court, prima facie the ingredients of the offences committed under the Atrocities Act are made out and hence, no interference of this court is required at this stage by exercising powers under section 482 of the Code of Criminal Procedure, 1974. The writ application is accordingly not entertained. RULE is discharged. Interim relief stands vacated.