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Gujarat High Court · body

2019 DIGILAW 581 (GUJ)

Anand Athabhai Chaudhari v. State of Gujarat

2019-05-09

A.P.THAKER

body2019
ORDER : 1. By way of present petition filed under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code, the petitioners seek to quash and set aside the FIR being M. Case No.2 of 2013 registered with Limdi Division Police Station, District: Dahod for the offences punishable under Sections 452, 323, 325, 504, 506(2), 114 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereafter be referred to as “the Atrocity Act”) as well as the order of issuance of summons dated 15.02.2017 passed by the learned Judicial Magistrate, First Class, Jhalod in Criminal Case No.169 of 2017. 2. Brief facts of the present case are that on 06.09.2013, one FIR being C.R.No.I-104 of 2013 for the offences punishable under Sections 323, 353, 362, 186 and 114 of the Indian Penal Code came to be registered against the husband of respondent No.2 and others at the instance of petitioner No.1, who was working as Police Sub Inspector of Limdi Police Station, alleging, inter alia, that the original accused persons named therein obstructed the public servants in performance of their duties and also beaten them under the guise that they were not able to catch the thief and caused injuries to them. 2.1 It is submitted that on 06.09.2013, the husband of respondent No.2 was arrested at 21.40 hours for which the report was submitted to the learned Judicial Magistrate, First Class, Jhalod. 2.2 It is submitted that on 15.11.2013, as a counterblast of the aforesaid FIR, respondent No.2 has filed the impugned FIR alleging, inter alia, that on 06.09.2013, in the village, there were increasing incidents of theft and loot, due to which the villagers were afraid. That it was alleged that on the aforesaid date, at about 8.00 p.m., one thief had come at the house of Pravinbhai who lives in their society, and thereafter, the police were called. It is further alleged that thereafter, the police officers came to the society and since, the people from the society were not satisfied with the police, the original accused persons, who are the police officers, got excited and, thereafter, the staff from S. P. Office, Dahod, was called and, thereafter, the present accused No.1 went to back to Limdi Police Station. It is further alleged in the impugned FIR that at 10.30 p.m., on 06.09.2013, when people of the society were in their houses and at that time respondent No.2 was sitting outside her house and three police officers came in a car and the original accused No.1 and 2 came to the society and all the original accused persons abused respondent No.2 with regard to her caste and also caused injuries to her. 2.3 It is further alleged in the FIR that the original accused persons also ransacked the house of respondent No.2 and with their sticks they also beat son of respondent No.2 and took away husband of respondent No.2 and gave threats to them with dire consequences. With this allegations, the impugned FIR came to be registered pursuant to the order dated 26.09.2013 passed under Section 156(2) of the Criminal Procedure Code by the learned Judicial Magistrate, First Class, Jhalod. 2.4 It is alleged in the FIR that on 29.05.2014, a summary report was filed after the investigation and in that report, it was pointed out that the allegations in the impugned FIR with regard to beating are not at all supported and it appears that Deputy Superintendent of Police, Shri Dilip Rameshchandra Agrawat, has given a statement dated 27.05.2014, wherein he has pointed out that the petitioner No.2 was present with him in Limdi Police Station at the time of the alleged offences and had not gone outside the Police Station. It is further submitted that from the statements of the witnesses, Anitaben and Manjulaben, it appears that their statements are general and vague and after the investigation there is no sufficient evidence to proceed with the matter was found and therefore the summary report was filed to that effect. 2.5 It is also submitted that after filing of the summary report, the learned Judicial Magistrate, First Class, Jhalod passed an order for further investigation under Section 173(8) of the Criminal Procedure Code on 03.10.2015 and observed that the summary report is not clear with regard to involvement of the original accused No.3 and other police officers. Due to such order, on 31.12.2016, the Deputy Superintendent of Police, S.C./S.T. Cell, Dahod, submitted his report to the learned Judicial Magistrate, First Class, Jhalod wherein it is pointed out that the alleged offences are prima facie appear to be committed by the original accused persons. Due to such order, on 31.12.2016, the Deputy Superintendent of Police, S.C./S.T. Cell, Dahod, submitted his report to the learned Judicial Magistrate, First Class, Jhalod wherein it is pointed out that the alleged offences are prima facie appear to be committed by the original accused persons. That on 15.02.2017, the learned Judicial Magistrate, First Class, Jhalod, vide impugned order has taken cognizance of the alleged offences by issuance of the process under Section 204 of the Criminal Procedure Code. 2.6 It is further submitted by the petitioners that on bare reading of the impugned FIR, none of ingredients of the alleged offences are made out and no ingredients of the provision of the Atrocity Act has been made out, since, there is no allegation in the FIR to the effect that the petitioners have intentionally insulted or intimidated by the petitioners with an intention to humiliate in a public place within public view. It is further submitted by the petitioners that in the FIR, only general and vague allegations are made and it is nothing but an abuse of process of law. It is also submitted that the Court could not take cognizance of the alleged offence since only the Special Judge under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has jurisdiction to try such offences. It is further submitted that even considering the bar under Section 197 of the Criminal Procedure Code, cognizance could not have been taken without prior sanction. It is submitted that permitting the impugned FIR an investigation into the same to continue would be totally unjustified leading to abuse of process of law and the petitioners would have to unnecessarily face the rigmarole of trial. While relying upon the certain decisions, it has been prayed to quash and set aside the impugned FIR and resultant proceedings thereof. 3. Heard Mr. P.P. Majmudar, learned advocate for the petitioners, Ms.Moxa Thakker, learned Additional Public Prosecutor for respondent No.1 – State and Mr.Gajendra Baghel, learned advocate for the respondent No.2 – original complainant at length. Perused the papers made available on record and annexed with the memo of petition. 4. Mr.P. P. Majmudar, learned advocate for the petitioners has submitted same facts which are narrated in the memo of petition. Perused the papers made available on record and annexed with the memo of petition. 4. Mr.P. P. Majmudar, learned advocate for the petitioners has submitted same facts which are narrated in the memo of petition. He has submitted that the learned Judicial Magistrate, First Class has no authority to take cognizance of the offence under the provisions of the Atrocity Act and only the Special Court can take cognizance of the offence. He has submitted that the learned Judicial Magistrate, First Class is not a Special Court under the provisions of the Atrocity Act. He has further submitted that the present complaint is nothing but counter blast against the complaint lodged by the police for the incident happened on 06.09.2013 wherein the police was assaulted. He has referred to the material placed before the Court and has submitted that the husband of respondent No.2 was arrested on the same date and he was produced before the learned Judicial Magistrate, First Class, he has not made any complaint against the police. He has submitted that in pursuance of the order of the learned Judicial Magistrate, First Class, for the investigation under Section 156(3) of the Criminal Procedure Code, filed alleged M. case, and after due investigation, the police has filed summary report and in that report, the learned Judicial Magistrate, First Class has passed the order for further investigation under Section 173(8) of the Criminal Procedure Code. Hehas also submitted that in the impugned FIR, there is no single ingredient of the old Atrocity Act is found. He has submitted that the date of offence is 06.09.2013, whereas, the present FIR is lodged on 15.11.2013 and there is gross delay and the same has not been explained. He has further submitted that at the relevant time, the police officers have been discharging their official duty and, therefore, before initiation any proceedings, a sanction under Section 197 of the Criminal Procedure Code is required and in absence of such sanction from the competent authority, no prosecution can be launched or continued. He has submitted that the present criminal proceeding is required to be quashed and set aside as there is no ingredient of any offence. He has relied upon the following decisions. (a) In the case of Gorige Pentaiah Vs. State of Andhra Pradesh, reported in (2008) 12 SCC 531 ; (b) In the case of D. T. Virupakshappa Vs. He has submitted that the present criminal proceeding is required to be quashed and set aside as there is no ingredient of any offence. He has relied upon the following decisions. (a) In the case of Gorige Pentaiah Vs. State of Andhra Pradesh, reported in (2008) 12 SCC 531 ; (b) In the case of D. T. Virupakshappa Vs. C. Subash reported in (2015) 15 SCC 231; (c) In the case of Smt. Achla D. Sapre Vs. Smt. Asha Mahilkar (Rajput) and another rendered in Writ Petition (Cri.) No.112 of 2015 dated 25.02.2016 by the High Court of Chhattisgarh. 5. Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 – State has referred to the contents of the FIR and has submitted that there is prima facie case made out against the petitioners and there were eye witnesses and statements were recorded by the concerned police authority. She has submitted that this is a private complaint which came to be lodged for the alleged incident, which is duly supported by the eye witnesses and, therefore, the present petition may not be entertained. She has further submitted that the present petition may be dismissed and the impugned FIR and the criminal case may be permitted to be dealt with in accordance with law. 6. Mr.Gajendra Baghel, learned advocate for the respondent No.2 – original complainant has vehemently submitted that after getting necessary report from the police, the learned Judicial Magistrate, First Class has issued process against the petitioners. He has referred to Section 14 of the Atrocity Act and has submitted that the Special Court has power ‘only for trial’ and the Special Court cannot take cognizance directly. While referring to the judgment of the Rajasthan High Court in the case of Bhura Lal and others Vs. State and others reported in 1999 Cri.L.J. 3552, he has submitted that if any complaint made under the Atrocity Act, the cognizance can be taken by the learned Judicial Magistrate, First Class. According to him, the cognizance taken by the learned Judicial Magistrate, First Class is legal and valid. He has also stated that after filing of the summary report, the Court has directed further investigation, whereupon, the Dy.S.P. reported that the offence has been made out. According to him, the cognizance taken by the learned Judicial Magistrate, First Class is legal and valid. He has also stated that after filing of the summary report, the Court has directed further investigation, whereupon, the Dy.S.P. reported that the offence has been made out. While referring to Section 193 of Code of Criminal Procedure, he has submitted that the original jurisdiction is with the learned Judicial Magistrate and not with the Special Court. He has further submitted that so far as Section 197 of Code of Criminal Procedure is concerned, it cannot be applicable in the facts of the present case and it can be applied only pre-trial stage. While referring to the material placed with this matter, he has submitted that there is prima facie case made out against the present petitioners and the learned Judicial Magistrate, First Class has not committed error in issuing process and, therefore, he has prayed to dismiss the present petition. 7. In response, Mr.P. P. Majmudar, learned advocate for the petitioners has submitted that the Atrocity Act has already been amended wherein it is provided that the Special Court can take direct cognizance of the offence and, therefore, now, the learned Judicial Magistrate, First Class has not been empowered to take cognizance directly. He has submitted that the learned Judicial Magistrate, First Class has passed the impugned order, at that time, the amendment was already made in the Atrocity Act. He has submitted that the decision cited by learned advocate for respondent No.2 is pertaining to the stage of Section 156(3) of the Code of Criminal Procedure and it is stage of pre-cognizance, whereas, in the present case, the cognizance has been taken by the learned Judicial Magistrate, First Class by issuing process thereof. Accordingly, he has prayed to allow the present petition. 8. In the case of Smt. Achla D. Sapre Vs. Smt. Asha Mahilkar (Rajput) (supra), the High Court of Chattisgarh, Bilaspur has held and observed in paras-18 and 20 as under:- 18. The legislative change which has been noticed in the earlier part of the judgment would clearly show that now, by the Amendment Act, 2015 only, the Special Courts have been empowered to take cognizance directly of the offences under the Act of 1989. It has been held so because the Courts of Sessions are the Special Courts constituted under Section 14 of the Act of 1989. 20. It has been held so because the Courts of Sessions are the Special Courts constituted under Section 14 of the Act of 1989. 20. Thus, the trial Magistrate was not a Special Court notified by the State Government within the meaning of Section 14 of the Act of 1989 read with Section 193 of the CrPC. Therefore, learned Judicial/trial Magistrate had absolutely no jurisdiction to entertain and take cognizance of the offence under Section 3(1) (x) of the Act of 1989. Even otherwise, the Special Courts constituted under Section 14 of the Act of 1989 have been empowered to take cognizance of the offence directly under this Act with effect from 1-1-2016 and learned Magistrate took cognizance of the offences under the Act of 1989 on 03.05.2014. Therefore, by no stretch of imagination, the impugned order directly taking cognizance of the offence under Section 3(1)(x) of the Act of 1989, can be held to be the valid exercise of jurisdiction by learned trial Court, rather it is a case of exercise of jurisdiction by learned Magistrate not vested in it by law and it is held to be without jurisdiction and without authority of law. 9. In the case of Gorige Pentaiah Vs. State of Andhra Pradesh (supra), the Apex Court has held and observed in paras- 15, 16 and 19 as under:- 15. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised : (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 16. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. 16. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. Discussion of decided cases 19. This court in State of Karnataka v. L. Muniswamy and Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts. 10. In the case of State of Haryana and others Vs. Bhajan Lal and others reported in 1992 Suppl. 1 SCC 335, the Apex Court has given illustration wherein such power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court. One of the guidelines at Sr.No.6 reads as under :- (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. 11. In the case of D. T. Virupakshappa Vs. 11. In the case of D. T. Virupakshappa Vs. C. Subash (supra), it was evident that the whole allegation was on police excess in connection with the investigation of a criminal case and such conduct was held to be reasonably connected with the performance of the official duty of the appellant therein. In view of that fact, it was held that the learned Magistrate could not have taken cognizance of the offence without previous sanction of the State Government. It was observed in para 7 as under:- 7. In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary. 12. In the case of Dhiraj Kumar Vs. The State of Jharkhand reported in (2017) SCC Online Jharkhand 2266, the cognizance was taken by the concerned Chief Judicial Magistrate relating to the offence under the Atrocity Act, which was challenged and in view of the provisions contained in the Atrocity Act, it was held that the cognizance taken by the Court of Chief Judicial Magistrate was not sustainable in law and accordingly, the order of the Chief Judicial Magistrate was quashed and set aside. 13. So far as the decision in the case of Bhura Lal and others Vs. State and others (supra) which is relied upon by the learned advocate for respondent No.2 is concerned, it appears that it was passed in the year 1999 i.e. before amendment carried out in the Atrocity Act considering the previous provision in the Act. It was observed therein that the Judicial Magistrate can take cognizance and transfer the case to Special Court, thereafter. 14. Now, considering the material placed on record, it is borne out that Section 14 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been amended w.e.f. 26.01.2016. It was observed therein that the Judicial Magistrate can take cognizance and transfer the case to Special Court, thereafter. 14. Now, considering the material placed on record, it is borne out that Section 14 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been amended w.e.f. 26.01.2016. Now, Section 14 of the Atrocity Act reads as under:- [14. Special Court and Exclusive Special Court. - (1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts: Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act: Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act. (2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible. (3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing: Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.] 15. Now, admittedly, in this case, when the amendment has been carried out, the Special Court can take cognizance directly. As such, the jurisdiction of the Judicial Magistrate, First Class can be said to be ousted. Now, admittedly, in this case, when the amendment has been carried out, the Special Court can take cognizance directly. As such, the jurisdiction of the Judicial Magistrate, First Class can be said to be ousted. On perusal of the material placed on record, it is clearly found that the allegation made in the impugned complaint is regarding excessive use of force by the police, when the police went to the place of occurrence to control the mob, the members of the mob had assaulted the police. It also appears that for the incident of assault on the police, the police has already filed the complaint for the same place and period and in that connection, the husband of the present complainant was arrested and he was brought to the concerned Judicial Magistrate Court wherein he has not made any allegation of the Atrocity Act either on himself or on his family members. It also appears from the record that the present complaint has been lodged after two months and there is no explanation given for delay of such complaint. Even if the allegation made in the complaint is believed for sake of arguments, then, in that case, it clearly transpires that the action of the police was in discharging of their official duty of controlling the mob, as at that time the members of the mob had assaulted on the police. Under these circumstances, in absence of sanction under Section 197 of the Code of Criminal Procedure from the State Government, the concerned Court could not have taken cognizance of the offence. 16. Further, in view of the amendment made in Section 14 of the Atrocity Act, the order for taking cognizance was passed in the year 2017 is beyond the jurisdiction of the Court of the Judicial Magistrate, First Class. The concerned Special Court can only take cognizance in view of the amendment in Section 14 of the Atrocity Act. 17. Under the aforesaid circumstances, and in view of the guidelines issued in the case of State of Haryana and others Vs. Bhajan Lal (supra), the inherent jurisdiction under Section 482 of the Code of Criminal Procedure is required to be exercised in this case. Under these circumstances, the present petition is required to be allowed. 18. For the foregoing reasons, the present petition is allowed. Bhajan Lal (supra), the inherent jurisdiction under Section 482 of the Code of Criminal Procedure is required to be exercised in this case. Under these circumstances, the present petition is required to be allowed. 18. For the foregoing reasons, the present petition is allowed. The impugned FIR being M. Case No.2 of 2013 registered with Limdi Division Police Station, District: Dahod and the order of issuance of summons dated 15.02.2017 passed by the learned Judicial Magistrate, First Class, Jhalod in Criminal Inquiry No.108 of 2013 as well as all consequential proceedings arising therefrom are hereby quashed and set aside. Direct service is permitted.