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Gujarat High Court · body

2019 DIGILAW 12 (GUJ)

Krishnapal Yashpal Singh v. State of Gujarat

2019-01-10

A.S.SUPEHIA

body2019
JUDGMENT : 1. The present petitions have been filed by the petitioners-original accused under Section 482 of the Code of Criminal Procedure, 1974 (“the Code” for short) seeking quashing and setting aside the F.I.R. being C.R.No.I-228 of 2017 registered with Bapod Police Station, Vadodara for the offences punishable under sections 321, 336, 374 and 114 of the Indian Penal Code, 1860 (“the IPC” for short) and Section 3(1)(h) and Section 3(2)(va) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 (“the Atrocities Act” for short). Rule. Ms.Moxa Thakker, learned APP waives service of Rule for the respondent no.State. Mr.Moiz Rafique, learned advocate waives service of Rule for the respondent no.2 original complainant. 2. The petitioner of Special Criminal Application No.8894 of 2017 is the accused no.1, who is Assistant Manager in Larsen & Toubro Limited (“L & T” for short), whereas petitioners of Special Criminal Application No.8908 of 2017 are the accused nos.2 to 5, who are the employees of M/s. Aravon Services Private Limited (“Aravon” for short). 3. The brief facts as alleged in the impugned FIR are as under: 3.1 It is alleged that on 07.07.2017, at around 4.30 – 5.00 p.m., the complainant's supervisor one Pravin Pandya came to the complainant and his coworker one Chirag Nagainbhai Solanki and told them that to bring a submersible motor from East Building Fire Office to the terrace of the same building. The motor was very heavy, but still the complainant and his coworker started to lift the motor and on their way they met their Union Leader one Jayantibhai, who inquired about taking such a heavy motor to which they replied that Pravin Pandya had informed that it was the order of Alam Sir to take the motor upstairs. 3.2 Thereafter, the complainant and his coworker by any means lifted the motor and at that time, the complainant's coworker Chirag started feeling chest pain and, therefore, he immediately went to L & T's dispensary and the doctor on duty Dr.Verma gave him medicines. The complainant and his coworker again lifted the motor and took it near the lift and brought the motor to the terrace of the East building. 3.3 In the evening, at 6.30 p.m., one of the coworker told to Pravin Pandya and Hitesh Adhiya that since it was the time of snacks they wanted to go for snacks. The complainant and his coworker again lifted the motor and took it near the lift and brought the motor to the terrace of the East building. 3.3 In the evening, at 6.30 p.m., one of the coworker told to Pravin Pandya and Hitesh Adhiya that since it was the time of snacks they wanted to go for snacks. At that time, Hitesh Adhiya replied that one of the persons/workers will have to remain present there and others can go for snacks. Therefore, except the first informant, everyone went for snacks and he remained present at the spot and after 7.00 p.m. they stopped working of the motor. 3.4 The very next day i.e. on 08.07.2017, being deep cleaning day, the duty of the first informant was from 7.00 a.m. to 3.00 p.m. It is stated that the supervisor Pravin Pandya asked them to do the pending work on the West terrace. After that, it is alleged that one of the supervisors forcefully told them to empty the water logged area through buckets and subsequently, he also started the motor. After sometime the water level had decreased and the motor was unable to throw water outside the water logged area. Therefore, the supervisor Pravin Pandya told them to fix the motor by hands, so that the motor will work and hence, the first informant and his coworker touched the motor, and at that moment, they caught an electric shock and after hearing their shouts, supervisor Pravin Pandya immediately unplugged the motor. It is under these circumstances the present FIR came to be filed. 4. Mr.S.V.Raju, learned Senior Counsel with Mr.B.S.Raju, learned advocate for the petitioner in Special Criminal Application No.8894 of 2017 has submitted that the impugned FIR is filed with malafide intention and with oblique motive against the petitioner. He has submitted that the gist of the FIR reveals that it is an accident which happened on 08.07.2017, whereas the FIR has been lodged on 11.11.2017 i.e. after a period of delay of 4 months of the incident. 4.1 Learned Senior Counsel Mr.Raju has submitted that no explanation for delay has been mentioned by the first informant in the impugned FIR and hence, the same is required to be quashed and aside. 4.1 Learned Senior Counsel Mr.Raju has submitted that no explanation for delay has been mentioned by the first informant in the impugned FIR and hence, the same is required to be quashed and aside. 4.2 Learned Senior Counsel Mr.Raju has submitted that the only role of the petitioner which is coming forth from the bare reading of the FIR, is that the present petitioner-accused no.1 had asked the accused no.2 to drain the terrace. Except this there is no allegation against him. Hence, no offence either under the IPC or under the Atrocities Act is said to have been committed by the present petitioner-accused no.1. 4.3 Learned Senior Counsel Mr.Raju has invited the attention of this Court to the provisions of Section 3(1)(h) of the Atrocities Act and has submitted that the ingredients of the said section are not satisfied since the first informant was not asked to do work of 'begar' or any other form of forced or bonded labour as they were the employees of contractor, who are engaged by the L & T. He has submitted that the first informant and his coworker were only asked to do their work and while putting the motor, he was electrocuted and has suffered the injuries and hence, it cannot be said that it was a deliberate and malafide intention on the part of the petitioner – accused no.1 to cause injury to the first informant. 4.4 Learned Senior Counsel Mr.Raju has submitted that even the contents of the FIR if are taken as it is, no offence is made out against the petitioner-accused no.1, as the allegation in the impugned FIR is that that the accused no.2 had only stated that the petitioner-accused no.1 had ordered him to empty the terrace. Thus, he has submitted that the impugned FIR is required to be quashed and set aside. 4.5 Learned Senior Counsel Mr.Raju has further contended that the provisions of Section 3(2)(va) of the Atrocities Act are also not satisfied since it is not the case of the first informant that the accused no.1 was having knowledge that the first informant belonged to the Scheduled Caste or Scheduled Tribe and the offence has been committed only that he is a member of Scheduled Caste or Scheduled Tribe. Since the first informant did not have any contact with the employees of the contractor and even if the contents of the FIR are held to be true that he had ordered the accused no.2 to empty the terrace. Hence, he would never know that the first informant would be engaged for such work by the accused no.2. Hence, the ingredients of Section 3(2)(va) of the Atrocities Act are not satisfied. 5. Mr.Dipak Dave, learned advocate for the petitioners in Special Criminal Application No.8908 of 2017 by maintaining the arguments advanced by learned Senior Counsel Mr.Raju has submitted that the petitioners – accused nos.2 to 5, against whom the allegations are made in the impugned FIR, are the employees of Aravon Company, who were engaged on contract basis for providing house keeping work. He has submitted that there was no pressure or compulsion on behalf of the accused to do the alloted work as alleged in the FIR. In fact, the incident was an accident. He has submitted that there is no evidence that the alleged injury was sustained by the first informant due to any malafide intention of the accused. He has submitted that the impugned FIR has been filed after delay of 4 months with oblique motive after the transfer of the first informant. 5.1 As regard the offence of the Atrocities Act is concerned, learned advocate Mr.Dipak Dave has maintained the arguments of learned Senior Counsel Mr.Raju and has submitted that Section 3(2)(va) of the Atrocities Act is not applicable against the petitioners. He has submitted that the ingredients of Section 3(1)(h) of the Atrocities Act are also not satisfied since the allegations made in the FIR do not reveal that the offence under the Atrocities Act has been committed against the first informant knowingly that he was a member of the Scheduled Caste or Scheduled Tribe. Thus, he has submitted that the impugned FIR is required to be quashed and set aside. 6. Mr.Moiz K. Rafique, learned advocate for the respondent no.2 – original complainant has vehemently submitted that the respondent no.2 had suffered injuries on account of the forced labour / bonded labour. He has submitted that the accused have violated the general terms and conditions of the L & T Company. 6. Mr.Moiz K. Rafique, learned advocate for the respondent no.2 – original complainant has vehemently submitted that the respondent no.2 had suffered injuries on account of the forced labour / bonded labour. He has submitted that the accused have violated the general terms and conditions of the L & T Company. He has invited the attention of this Court to the contract between the L & T and Aravon, more particularly, clause 2.1(J), which says that the work instruction will be given by the purchaser representative, Mr.K.P.Singh. Thus, he has submitted that the accused no.1 was aware that the first informant belongs to the Scheduled Caste and Scheduled Tribe. He has further invited the attention of this Court to the list of equipments to be provided by the Contractor while doing the work and submitted that no such equipment was provided and hence, the accident had occurred. He has submitted that thus, the ingredients of Section 3(1)(h) of the Atrocities Act get satisfied. 6.1 Learned advocate Mr.Rafique has submitted that the first informant is a Janitor and the accused should have appointed an Electrician for the work. He has also submitted that the ingredients of Section 3(2)(va) of the Atrocities Act are satisfied in the present case though the accused were aware that the first informant is a member of Scheduled Caste and Scheduled Tribe, he was deliberately asked by the accused to perform the work which ultimately resulted into injuries. He has also submitted that the accused have in fact, made the present first informant to do a work of “begar” or other forms of forced or bonded labour as envisaged under Section 3(1)(h) of the Atrocities Act. Lastly, it is submitted by him that after the FIR was filed, all the workers are transferred from Baroda to Jamnagar by the management of the Aravon Company, which reveals the malafide intention of the accused. Thus, it is submitted that at this stage, the FIR may not be quashed and set aside. 7. Ms.Moxa Thakker, learned APP for the respondent-State, on instructions from the Investigating Officer, who is personally remained present before this Court has submitted that as per the injury certificate, the first informant had suffered simple injury. Thus, it is submitted that at this stage, the FIR may not be quashed and set aside. 7. Ms.Moxa Thakker, learned APP for the respondent-State, on instructions from the Investigating Officer, who is personally remained present before this Court has submitted that as per the injury certificate, the first informant had suffered simple injury. It is also submitted by the learned APP that the ingredients of Section 3(1)(h) of the Atrocities Act would be fulfilled since three witnesses have deposed that the incident had occurred on that day and the first informant was electrocuted since they were forced to do the work of emptying the terrace without giving any safety equipments. Thus, they were injured by the electrocution. She has submitted that the ingredients of the Atrocities Act as well as the IPC would also get satisfied hence, the impugned FIR may not be satisfied. 8. Heard the learned advocates for the respective parties at length. 8.1 I have perused the documents as pointed out by the learned advocates for the respective parties. In the present case, the impugned FIR has been registered for the offence punishable under Sections 321, 336, 337 and 114 of the IPC and Sections 3(1)(h) and 3(2)(va) of the Atrocities Act. I may first endeavor to deal with the offences of Atrocities Act, as registered in the FIR. Section 3(1)(h) of the Atrocities Act reads as under: "makes a member of a Scheduled Caste or a Scheduled Tribe to do “begar” or other forms of forced or bonded labour other than any compulsory service for public purpose imposed by the Government.” A plain and simple reading of the provisions of the Section 3(1)(h) of the Atrocities Act would clarify that the offence is established under the said Section, if a member of Scheduled Caste or Scheduled Tribe is forced to do bonded labour or other forms of labour other than any compulsory service for the public purposes imposed by the Government. 8.2 As regards the provisions of Section 3(1)(h) of the Atrocities Act are concerned, the allegations and the contents in the FIR do not reveal that the first informant was forced to do bonded labour, but he was asked to carry out the maintenance work of cleaning the terrace. No complaint has been made by the first informant to the higher authority or the authorities under the Labour Laws about the bonded labour. No complaint has been made by the first informant to the higher authority or the authorities under the Labour Laws about the bonded labour. Thus, none of the ingredients of Section 3(1)(h) of the Atrocities Act are established in present case. 8.3 In the present case, it is an undisputed fact that the first informant is the employee of the Aravon company, which is a Contractor of L & T engaged for house keeping services. The first informant was appointed as a Janitor. On 08.07.2017, the first informant's duty (being deep cleaning day) was from 7:00 a.m. to 03:00 p.m. The accused no.4 asked the first informant and coworker to empty the water logged area on the terrace through the buckets. Since the water was in large quantity the aid of electric motor pump was resorted to. After some time, the water level had decreased and the motor was unable to throw water outside logged area. At that time, accused no.4 Pravinbhai Pandya told them to fix the motor by hands, so that the motor will work and hence, the complainant and his coworker tried to touch the motor and at that moment, the first informant was electrocuted. It is further narrated in the FIR that the accused no.4 Pravinbhai Pandya at that time, unplugged the motor and hence, he was saved. Thereafter, he was taken to the hospital and as per the medical certificate, the first informant had suffered simple injury. The alleged incident is said to have been occurred on 08.07.2017 and the impugned FIR has been filed on 11.11.2017. No reason of delay has been incorporated in the FIR. The Apex Court in the judgment reported in Kishan Singh (Dead) Through LRS Versus Gurpal Singh & Ors [ 2010 8 SCC 775 ] has observed thus: “22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case.” 8.4 It appears that the present FIR has been lodged by the first informant on 11.11.2017 as an afterthought with a malafide intention and ulterior motive of wreaking vengeance. Hence, the impugned FIR is also liable to be quashed and set aside on the ground of delay. 8.5 As regards the provision of Section 3(2)(va) of the Atrocities is concerned, the same reads thus: “Commits any offence specified in the Scheduled, against a person or property, knowing that such a 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.” As narrated in the FIR, the accused no.1 had only asked the accused no.2 to drain the terrace. In the entire FIR it is not stated that the accused no.1 had in fact asked the accused no.2 to employ the respondent no.2 for doing the work. In the entire FIR it is not stated that the accused no.1 had in fact asked the accused no.2 to employ the respondent no.2 for doing the work. The accused no.1 would have not known the person engaged by accused no.2 for doing the work. Thus, so far accused no.1 is concerned, it can be safely presumed that he was not having any knowledge that the first informant was a member of schedule tribe or schedule caste and he was going to be engaged by the accused no.2 for doing the work. Assuming that the other accused were having the knowledge that the respondent no.2 belonged to schedule caste and schedule tribe then also no ingredients of offence under section 3(2)(v) of the Atrocities Act are attracted since no offence under IPC as specified in the schedule is attracted. 8.6 As regards the offence punishable under Sections 321, 336, 337 and 114 of the IPC is concerned, the tenor of the FIR revels that it was an accident. The first informant on the previous day of the incident was asked to drain the terrace by using the buckets. On the next date, in fact, in order to empty the terrace which was logged with water, the motor was installed. It is not the case of the first informant that there was any malafide intention on the part of the accused no.4 to cause him voluntarily since the accused no.4 was not aware that on touching the motor, the first informant would get electrocuted. The facts reveal that the first informant had touched the motor when the water was almost drained. The first informant was a maintenance worker and he should have taken all the precautions by demanding necessary equipments. It is not alleged in the FIR that though he demanded such equipments the accused had refused to provide the same and he was forced or coerced to touch the motor though it was not insulated. It is not alleged by the respondent no.2 that the accused were having the knowledge that the motor was not insulated on touching the same he will get electrocuted. Being a Janitor, the respondent no.2 must be well acquainted with the fact that if he touches the motor in such conditions, he would get electrocuted. It is not alleged by the respondent no.2 that the accused were having the knowledge that the motor was not insulated on touching the same he will get electrocuted. Being a Janitor, the respondent no.2 must be well acquainted with the fact that if he touches the motor in such conditions, he would get electrocuted. 8.7 Under the circumstances, at no stretch of imagination, it can be said that the petitioners have committed the offence under the IPC, as the contents of the FIR reveal that electrocution of the first informant was only an accident and if the first informant had taken due care and caution before touching the motor, he would have avoided the accident. On the contrary, he was immediately saved by the accused no.4 as he pulled plug of the motor which stopped the electric current. Thus, instead of being obliged to the instant reaction of the accused no.4 of pulling the plug because of which the first informant was saved, he has lodged the impugned FIR against him under the offence punishable under the IPC and the Atrocities Act. Thus, if no offence under the IPC is established against the petitioners as a sequel the offence under Section 3(2)(va) of the Atrocities Act also gets diluted. The establishment of offence under the IPC as per the scheduled to Section 3(2)(va) of the Atrocities Act is sine qua non for attracting the IPC provisions of the Atrocities Act. Under the circumstances, the FIR is nothing but sheer abuse of process of the provisions of the Atrocities Act and is only filed with an oblique motive of wreaking vengeance. 8.8 The Supreme Court in the case of State of Haryana Vs. Bhajanlal & Ors. (supra) has laid down the exceptions wherein the powers under section 482 of the Code should be exercised. The same are thus: (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 sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. (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 sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 155(2) of the Code. (3) Where the controverted 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec. 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 ground 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 proceeding 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.” The present case will fall under Exceptions (5) and (7) of the aforesaid parameters. The allegations and the facts incorporated in the F.I.R. appear to be improbable and the F.I.R. has been maliciously instituted. 9. In view of the aforesaid factual scenario, in the considered opinion of this court, the impugned F.I.R. is nothing but a sheer abuse of process of law and the same is lodged only with a sole purpose of harassing the petitioners. 10. Resultantly, the present petitions are allowed. 9. In view of the aforesaid factual scenario, in the considered opinion of this court, the impugned F.I.R. is nothing but a sheer abuse of process of law and the same is lodged only with a sole purpose of harassing the petitioners. 10. Resultantly, the present petitions are allowed. The impugned F.I.R. being C.R.No.I-228 of 2017 registered with Bapod Police Station, Vadodara for the offences punishable under sections 321, 336, 374 and 114 of the Indian Penal Code, 1860 and Section 3(1)(h) and Section 3(2)(va) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 as well as all other consequential proceedings arising from the impugned F.I.R. are hereby quashed and set aside. RULE is made absolute. Direct service is permitted. 11. Registry to place a copy of this order in connected matter.