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Gujarat High Court · body

2019 DIGILAW 308 (GUJ)

Govabhai Danabhai Rabari v. State Of Gujarat

2019-04-05

A.P.THAKER

body2019
JUDGMENT : A.P. THAKER, J. 1. By filing this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused have prayed to quash and set aside Criminal Complaint being C.R.No.II-32 of 2017 registered with Agthala Police Station, for the offences under Section 294(a), 506 (2) and 114 of the Indian Penal Code and Section 3 (1)(r) and 3 (2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”). 2. It is the case of the prosecution that FIR has been lodged on 22.7.2017 on the allegation that on that date, at about 5 p.m., complainant and his wife were present in their house and, at that time, accused no.1, Kamabhai Jomabhai Rabari, who was the neighbour of the complainant had broken the small wall of his field which was for restraining water and, therefore, water had come into the field of the complainant. Therefore, the complainant asked accused no.1 that why he has broken the water restraining wall to which accused no.1 replied that the wall is in his field and, he can do anything with it. That, thereafter accused nos.2 to 4, petitioners herein, had intervened from the adjoining fields and told the complainant that since the water was locked in the field of accused no.1, he has broken the wall. Thereafter, accused no.1 had given abuses to the complainant. It is also alleged that when the complainant had tried to pursue the accused, the accused no.1 uttered derogatory words concerning to the caste of the complainant, and thereafter, accused no.1 had pushed the wife of the complainant and told her that if her husband would not improve, he would be killed. With these allegations, the impugned FIR has been filed. 3. Heard Mr.A.P.Shah, learned advocate for the applicants, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1-State and Mr.Keval Maharaja, learned advocate for respondent no.2. 4. Mr.A.P.Shah, learned advocate for the applicants has contended that the complaint has been lodged after delay of about two months and there is no plausible explanation for the same and no role has been attributed to the present petitioners regarding use of derogatory language against the complainant. According to the petitioners, they have only intervened between accused no.1 and the complainant. According to the petitioners, they have only intervened between accused no.1 and the complainant. It is also contended that according to the petitioners, as per ingredients of section 3(1)(r) of the Atrocities Act, the complainant ought to have alleged that the accused were not members of the scheduled caste or scheduled tribe and the complainant was intentionally insulted or intimidated by the accused with an intent to humiliate within public view. It is also alleged that in the entire FIR nowhere it is mentioned that the accused were not members of the scheduled caste or scheduled tribe and the accused intentionally insulted or intimidated with an intent to humiliate the complainant in a place within public view. It is also submitted that in absence of ingredients of the offence permitting FIR to continue would compel the petitioners to face rigmarole of the criminal trial, which would be totally unjustified leading to abuse of process of law. It is also contended that the alleged act was not committed in a public place and, hence, it does not fall within the purview of provisions of the Atrocities Act. It is also contended that the utterance of abusive language diminishing the complainant regarding his caste were not uttered in a public place. According to them, there is no prima facie material on record to suggest that offence under the Atrocities Act has been committed by the present accused and the entire FIR is general in nature and there is no ingredient of any other offence being committed by the present accused. On all these grounds, it is submitted to quash the FIR and all consequential proceedings. 4.1 In support of his submissions, learned advocate has relied upon following decisions. (i) Ashok Kumar Mishra v. State of Orissa and Another, (2013) CriLJ 1431. (ii) Asmathunnisa v. State of Andhra Pradesh, (2011) 11 SCC 259 . (iii) Swaran Singh and Others v. State, through Standing Counsel and Another, (2008) 8 SCC 435 . (iv) Gorige Penatiah v. State of Andhra Pradesh and Others, (2008) 12 SCC 531 . 5. Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1-State has vehemently submitted that the allegations against the present applicants are serious in nature. She has submitted that it is specifically alleged by the complainant that the present applicants were present at the scene of offence and they have also used abusive language against the complainant. 5. Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1-State has vehemently submitted that the allegations against the present applicants are serious in nature. She has submitted that it is specifically alleged by the complainant that the present applicants were present at the scene of offence and they have also used abusive language against the complainant. She further submitted that even if the case of the applicants is believed that they have not used any derogatory words about the caste of the complainant, in view of section 114 of IPC since the applicants were present at the scene of offence, whether they used such words or not becomes irrelevant. Therefore, it cannot be said that there is no case or allegation against the present applicants. She, therefore, prayed to reject the present application. 6. Mr.Keval Maharaja, learned advocate for respondent no.2-original complainant has submitted that, at the time of the incident in question, present applicants came to the spot and supported accused no.1. He submitted that present accused have also intimidated accused no.1 and they have used abusive language. He further submitted that present accused have used derogatory words regarding caste to intentionally insult respondent no.2 and since the incident had happened in a field, it cannot be said that it was not done in a public place. So far as delay in filing the complaint is concerned, he submitted that at the time of incident, complainant was in fear and since the accused and the complainant are belonging to same village, village people tried to settle the dispute. He also submitted that since the dispute could not be settled, impugned complaint is given and delay is caused in filing such complaint. He also submitted that due to stay granted by this Court, the investigation could not be completed and looking to the allegations, the complaint may be allowed to be investigated and it may not be quashed at this stage. 7. Heard learned advocates for the parties and perused the material available on record. 8. 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 scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. 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 scrutinize 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. 9. 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. 10. 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. 11. Having heard the learned counsel appearing for the parties and having gone through the material on records, it is clear that on 22.7.2017, at about 5 p.m., complainant and his wife were present in their house and at that time, accused no.1, Kamabhai Jomabhai Rabari, who was the neighbour of the complainant had broken the small wall of his field which was for restraining of water and, therefore, water had come into the field of the complainant. Therefore, the complainant asked accused no.1 that why he has broken the water restraining wall to which accused no.1 replied that the wall is in his field and, he can do anything with it. That, thereafter accused nos.2 to 4-petitioners herein, had intervened from the adjoining fields and told the complainant that since the water was locked in the field of accused no.1, he has broken the wall. Not only that as per the allegations present accused have intimidated accused no.1. However, so far as submission of learned APP that in view presence of the present applicants at the scene of offence, provisions of section 114 of IPC would apply, cannot be accepted. In the present case, allegations are made under the Atrocities Act and only because the present applicants-accused nos.2 to 4 were present at the place of incident, it cannot be said that they have also committed an offence under the Atrocities Act. Therefore, the complaint regarding offences under the Atrocities Act is required to be quashed so far as present applicants are concerned. So far as allegations regarding other offences is concerned, since the water was locked in the field of accused no.1, he has broken the wall and the water entered the field of the complainant and due to that complainant and accused no.1 started quarreling. So far as accused nos.2 to 4 are concerned, they have intervened in such quarrel and said that since the water was locked in the field of accused no.1, he has broken the wall. Thereafter, accused no.1 had given abuses to the complainant and used derogatory language concerning to the caste of the complainant, and thereafter, accused no.1 had pushed the wife of the complainant and told her that if her husband would not improve, he would be killed. It is clear that the quarrel had taken place between the complainant and accused no.1, and there is no overt act attributed to the present applicants. The allegations against the present applicants are general in nature. In view of all these, this Court finds that if the allegations made in the complaint are allowed to be investigated, it would compel the applicants to face rigmarole of the criminal trial. 12. In view of above discussion, present application is allowed. The allegations against the present applicants are general in nature. In view of all these, this Court finds that if the allegations made in the complaint are allowed to be investigated, it would compel the applicants to face rigmarole of the criminal trial. 12. In view of above discussion, present application is allowed. The impugned complaint being C.R.No.II-32 of 2017 registered with Agthala Police Station, for the offences under Section 294(a), 506 (2) and 114 of the Indian Penal Code and Section 3 (1)(r) and 3 (2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and proceedings consequential thereto are quashed and set aside so far as present applicants are concerned. Rule is made absolute accordingly.