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2019 DIGILAW 274 (GUJ)

Nandkishor Kanubhai Rathod v. State of Gujarat

2019-03-28

A.P.THAKER

body2019
JUDGMENT : A.P. Thaker, J. By way of the present application under Section - 482 of the Code of Criminal Procedure, 1973, the applicants - original accused persons, have prayed for quashing of the FIR being C.R. No. I-40 of 2017 dated 21.11.2017 registered with Patadi Police Station, Surendranagar filed against them for the offences punishable under Sections 504, 506(2), 147, 148, 149 of the Indian Penal Code (hereinafter be referred to as "the IPC"), under Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act") and under Section 135 of the Gujarat Police Act (hereinafter be referred to as "the GP Act"). 2. The facts of the present case are that it is the case of the complainant that on 20.11.2017 at 2.30 p.m., son of the complainant namely Manish came at Patadi in a private rickshaw, which was stopped near Shyam Marketing situated at Jainabad Road. It is further alleged in the complaint that Shyam Marketing belongs to Nandkishor Kanubhai Rathod, cousin brothers are the owners and rickshaw was stopped near Shyam Marketing and at that time son of the complainant Manish got down from rickshaw and, thereafter, the driver of the rickshaw went to purchase coal and at that time, since, rickshaw driver has not applied handbrake or gear, the rickshaw got reversed and at that time, one bike which was in standing condition has fallen down as rickshaw dashed with the motorcycle as the son of the complainant was trying to take out his luggage from the rickshaw. It is further alleged that Nandkishor as well as other accused who are named in the FIR seeing the same got excited and came out from the shop with the weapon like pipe and knife and threat was given to Manish and, therefore, he was, under fear, started running to save himself. It is further alleged that the accused have used certain words relating to the caste of Manish and when the driver of the rickshaw tried to pick up motorcycle, he was not allowed to do so as accused had said that they intend to file complaint against Manish and on that basis, the complainant has filed the complaint. It is further alleged that the accused have used certain words relating to the caste of Manish and when the driver of the rickshaw tried to pick up motorcycle, he was not allowed to do so as accused had said that they intend to file complaint against Manish and on that basis, the complainant has filed the complaint. 2.1 It is alleged by the applicants that the alleged incident stated to have been occurred on 20.11.2017 for which on the next day i.e. on 21.11.2017 a written complaint was given by the complainant. It is also alleged that the said complaint is lodged with oblique motive and malice intention just with a view to harass and pressurize the applicants. It is further alleged that there is delay in lodging the FIR and bare reading of the FIR, prima faice, no offence as alleged in the FIR is made out against the applicants and it is nothing but a gross abuse and misuse of process of law and the same is required to be quashed and set aside. It is also alleged that the complainant is in habit of lodging the FIR, in past against various persons of the village including the applicants and various representations were made to the various authorities by village people against harassment caused by the complainant and his family members to the village people. 2.2 While relying on the decision of the Apex Court in the case of State of Haryana Vs. Bhajan Lal and others, (1992) AIR SC 604, it is prayed by the applicants to quash the impugned FIR lodged against them. 3. In pursuance to the notice, respondent No.2 has filed affidavit-in-reply. He has stated that the incident had occurred on 20.11.2017 wherein auto-rickshaw, in which Manish was travelling, had met with a collusion with the motorcycle and at that time, events as narrated in the complaint had taken place as defined under the Indian Penal Code and other special statues. It is further stated in the affidavit-in-reply that the fact that the incident, as alleged in the complaint, had taken place, becomes evident from the cross complaint filed by the applicant No.1 herein. It is further stated that applicant No.1 had filed the complaint on 20.11.2017, narrating the same incident and the same place against the victim in the complaint being C.R.No.I-3049/2017 registered with Patadi Police Station. It is further stated that applicant No.1 had filed the complaint on 20.11.2017, narrating the same incident and the same place against the victim in the complaint being C.R.No.I-3049/2017 registered with Patadi Police Station. According to him, the applicants have suppressed the material acts in the memo of application. It is also stated that the applicants are headstrong persons belonging to the upper caste, namely Nadoda-Rajput and family of the applicants like to have an overriding say in the matter of election of the sarpanch of the village and that only the person chosen and supported by them have become a sarpanch of the Village : Savda so far. It is stated that the applicants herein contested the election for the post of sarpanch of Savda Village against the candidate setup by them and got elected and keeping a grudge of the same, the applicants and their family members have been harassing time and again to the complainant and his family members. It is further stated that applicant No.1 is engaged in the activity of illegal sand excavation and the deponent herein, being a sarpanch of the village, has restrained this illegal sand excavation of applicant No.1, keeping a grudge of all these things, the deponent was beaten with a sword and iron pipe by applicant No.1 on 30.06.2016 which complaint was registered before the Patadi Police Station. It is further stated that the another incident was occurred on 09.01.2016. It is stated that the deponent has sought police protection time and again and he was given police protection on 12.01.2016, 02.07.2016 and 08.07.2017. 3.1 It is stated in the affidavit-in-reply that on 08.07.2017, while being under police protection and accompanied by the police, he was attacked by way of car accident by the applicants. According to him, there is enmity between the parties. 3.2 It is stated in the affidavit-in-reply that the victim was only a passenger and only rickshaw driver had committed an error which resulted into the cross complaints, on account of the previous enmity. It is further stated that the incident as alleged in the complaint had taken place in the market area and there are other witnesses of the incident. It is further stated that the members of scheduled caste had given representation on 08.07.2016 to the Mamlatdar and Executive Magistrate, Patadi pointing out the complaints filed by the other villagers against applicant No.1. It is further stated that the members of scheduled caste had given representation on 08.07.2016 to the Mamlatdar and Executive Magistrate, Patadi pointing out the complaints filed by the other villagers against applicant No.1. The deponent has prayed to reject the application filed by the applicants herein. 4. Heard Mr.Ashish Dagli, learned advocate for the applicants, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State of Gujarat and Mr.K. P. Champaneri, learned advocate for respondent No.2. Perused the papers filed in the matter by both side. 5. Mr.Ashish Dagli, learned advocate for the applicants has submitted the same facts which are narrated in the memo of the application and has submitted that this is a case of accident only and the colour of the atrocity has been given by the complainant. He has submitted that the complainant is in habit of filing such complaints and the other villages have also made representations against the complainant. He has submitted that prima facie, no offence as alleged in the FIR is made out against the applicants and it is nothing but a gross abuse of process of law and the same is required to be quashed and set aside. He has relied upon the decision of the Apex Court in the case of Ravinder Singh Vs. Sukhbir Singh and others, (2013) AIR SC 1048. 6. Per contra, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State of Gujarat has submitted that there are four witnesses, who have supported the occurrence of the incident and there are three previous FIRs lodged against applicant No.1. According to her, the witnesses have supported the version of the complainant and, therefore, at this stage, the present application may be rejected. 7. Mr. K. P. Champaneri, learned advocate for respondent No.2 has heavily relied on the averments made in the affidavit-in-reply and has submitted that till today, the offence of atrocity is being committed against the members of the scheduled caste and scheduled tribe. He has submitted that the applicants have not mentioned regarding the cross complaint filed by him and regarding other complaints filed by the complainant herein against other persons. It is also submitted that the complainant being a sarpanch, there is a political rivalry and there is previous enmity between the parties and the entire incident has taken place in the market area. It is also submitted that the complainant being a sarpanch, there is a political rivalry and there is previous enmity between the parties and the entire incident has taken place in the market area. He has also submitted that the members of the scheduled caste have made representations to the concerned authorities regarding atrocity is being meted out by upper caste people. 8. In rejoinder, Mr.Ashish Dagli, learned advocate for the applicants has submitted that there is no specific role of using derogatory word to caste of the complainant, is coming out from the record. He has further submitted that this is a simple case of accident which has been stated by Nandkishor on 20.11.2017 before the Patadi Police Station. Mr.Dagli, learned advocate has relied upon the decision of the Coordinate Bench of this Court dated 08.01.2016 in the case of Hetalkumar J Sonpar Vs. State of Gujarat rendered in Criminal Misc. Application No.1686 of 2014. 9. In the case of Ravinder Singh Vs. Sukhbir Singh (supra), the Apex Court has held and observed in para-25 as under "25. the High Court has dealt with the issue involved herein and the matter stood closed at the instance of respondent No. 1 himself. Therefore, there can be no justification whatsoever to launch criminal prosecution on that basis afresh. The inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint. 10. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint. 10. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinies the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 11. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 12. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 13. On perusal of the papers on record, it appears that there is enmity between the parties. 12. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 13. On perusal of the papers on record, it appears that there is enmity between the parties. It also appears that the cross representations have made by both the sides against each other to the concerned authorities. It also appears that for the alleged incident of dashing of rickshaw with the motorcycle, there is complaint filed by the applicant No.1 and, thereafter, on the next day, the complaint has been lodged by respondent No.2 who is not victim of the crime but who is father of the victim Manish. On perusal of the statements produced by the learned Additional Public Prosecutor, it appears that the incident of happening of accident between the rickshaw and the motorcycle has been substantiated. But, so far as the utterance of abusive language is concerned, there is no prima facie or satisfactory material available. It is a simple case of accident. It also appears that some colour of Atrocity Act has been given by the complainant for whatsoever reasons. It is clearly found from the papers available on record that there is no prima facie material to substantiate the allegation of commission of the offence under the Atrocity Act. Of Course, the offence under the Indian Penal Code is concerned, it appears that there is some material available on record. Therefore, so far as the allegation of commission of the offence under the Atrocity Act is concerned, the same deserves to be quashed. However, at the same time, the offence under the Indian Penal Code is required to be investigated and necessary proceedings thereof could be carried out. 14. If in absence of the prima facie material of commission of the offence under the Atrocity Act, if the entire proceedings is permitted to be carried out then it will be nothing but abuse of process of law. Therefore, so far as the proceedings under the Atrocity Act is concerned, the same is required to be quashed and set aside, whereas, the proceedings under the Indian Penal Code and the Gujarat Police Act are required to be carried out forthwith. 15. For the foregoing reasons, the present application is partly allowed. Therefore, so far as the proceedings under the Atrocity Act is concerned, the same is required to be quashed and set aside, whereas, the proceedings under the Indian Penal Code and the Gujarat Police Act are required to be carried out forthwith. 15. For the foregoing reasons, the present application is partly allowed. The FIR being C.R.No. I-40 of 2017 dated 21.11.2017 registered with Patadi Police Station, Surendranagar, so far as the offence under Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, is hereby quashed and set aside and consequential proceedings thereof are also quashed and set aside. However, the proceedings for the offence under Sections 504, 506(2), 147, 148, 149 of the Indian Penal Code and under Section 135 of the Gujarat Police Act shall be continued as per law. 16. The application stands disposed of accordingly.