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2019 DIGILAW 752 (GUJ)

Pravinbhai Gordhanbhai Patel v. State of Gujarat

2019-07-25

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. Rule. Learned APP waives service of rule for the respondent-State. Learned Advocate Mr. P.V. Patadiya waives service of rule for the respondent No. 2. 2. The present application has been filed seeking quashing of the FIR registered at Anand Rural Police Station, District Anand being C.R. No. II- 3068 of 2014 for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 ('the IPC' for short) and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'the Atrocities Act'). 3. The brief facts of the case leading to filing of the present application are as under:- 3.1. It is the case of the applicants that in the recent past, as the residents of Rohit Community of Village Napad Talpad have tried to encroach some private lands belonging to the other community residing in the same village and also have encroached the Government land and therefore, the applicants' families had intervened and had tried to convince the encroacher not to make constructions over the Government land for any purpose and the applicants and their family members have also entered into interaction/discussion/conversation with other villagers as well as with respondent No. 2, as the respondent No. 2 has carried out construction over the Government land. However, respondent No. 2 and the other supporters carried out the construction by creating encroachment over the Government land and also in the private land in spite of several requests made by the applicants not to construct the same. It is also the case of the applicants that as the respondent No. 2 was continuing with the construction over the Government land, applicant No. 1 instituted Civil Suit No. 277 of 2014 before the Principal Senior Civil Judge, Anand, in respect of the subject matter of land by praying for interim injunction. 3.2. It is the case of the applicants that the applicant No. 1 filed another application before the concerned Court seeking for passing of an appropriate order for carrying out Panchkyas by appointing Court Commissioner and the Court concerned had passed an order appointing Court Commissioner for carrying out Panchkyas in respect of the subject matter of land and called the report. Pursuant to the order passed by the concerned Court, on 22.10.2014, Panchkyas was carried out in presence of the plaintiff-original applicant No. 1 and the defendants in Civil Suit No. 277 of 2014 and the work of preparing Panchnama was completed on the same day. It is also the case of the applicants that the defendants of the aforesaid Civil Suit refused to sign the Panchnama prepared/writing by the Court Commissioner and, therefore, the Court Commissioner had left the place. 3.3. It is the case of the of the applicants that at that juncture, when the applicant No. 1 was returning to his residence and the applicant No. 2 was not at all present at the relevant point of time, the respondent No. 2 as well as one Pashabhai Morarbhai Makwana had assaulted the applicant No. 1 and as a result of a serious blow upon the applicant No. 1, Page the spectacles of the applicant No. 1 got broken. The applicant No. 1 was caught hold by his collar and the respondent No. 2 and other accused persons had taken out the currency notes worth Rs. 5,000/- from the front pocket of the applicant No. 1 and he was beaten and assaulted by giving knife blow by the respondent No. 2 and threatened him to withdraw the Civil Suit, otherwise, he would be dragged into atrocity case. Thereafter, immediately, the applicant No. 1 rushed to the Anand Rural Police Station and requested the concerned Officer, namely, Shri Jayantibhai Makwana, who was present at the relevant point of time, to register an FIR and at that juncture another Police Constable, namely, Shri Babubhai was also present, however, instead of registering FIR, the applicant No. 1 was threatened by the police personnel and the respondent No. 2 and other persons of Rohit Community were very much present at the Anand Rural Police Station and therefore, applicant No. 1 rushed to the Office of the concerned District Superintendent of Police at Anand and submitted one detailed application dated 22.10.2014, which was received by the concerned Office i.e. DSP Office at 07:25 p.m. 4. At the outset, learned Advocate Mr. P.P. Majmudar appearing for the applicants has submitted that he would not be pressing for the offence as regards Section 323 of the IPC. 5. Learned Advocate Mr. At the outset, learned Advocate Mr. P.P. Majmudar appearing for the applicants has submitted that he would not be pressing for the offence as regards Section 323 of the IPC. 5. Learned Advocate Mr. P.P. Majmudar appearing for the applicants has submitted that as regards the offence of Atrocities Act is concerned, the same is not established in the present case since the ingredients of the aforesaid offence are not established. He has submitted that the impugned FIR has been filed as a counter-blast to the application filed by the applicants against the respondent-first informant. As regards the offence of the Atrocities Act is concerned, learned Advocate Mr. Majmudar has placed reliance on the decision of the Coordinate Bench of this Court dated 19.12.2011 in the case of Kamlesh Krashnakant Modi v. State of Gujarat. 6. As regards the offence of Section 506 of the IPC, learned Advocate for the applicants has submitted that no alarm was caused to the first informant and hence, the ingredients of Section 506 of the IPC would not get satisfied. Thus, he has submitted that the impugned FIR may be quashed and set aside. 7. Learned APP Mr. Hardik Soni, on instructions of the Investigating Officer, has submitted that the investigation is over. He has submitted that the investigation prima facie reveals that as alleged in the FIR, the incident had occurred on 22.10.2014. He has submitted that the statements of various witnesses reveal that a scuffle had taken place between the first informant as well as the applicants. He has submitted that except one witness, the other witnesses, who are present on that day, and the neighbours have not stated that the applicants have insulted the Complainant by uttering words towards his caste. Thus, he has submitted that the offence as alleged in the impugned FIR is established and hence, the same may not be quashed and set aside. 8. Learned Advocate Mr. P.V. Patadiya appearing for the respondent No. 2 has submitted that the impugned FIR may not be quashed and set aside and he adopts the arguments advanced by learned Additional Public Prosecutor. 9. This Court has perused the papers "of the investigation and the statements made by various witnesses as recorded by the Investigating Officer. This Court has also perused the contents of the impugned FIR. 10. 9. This Court has perused the papers "of the investigation and the statements made by various witnesses as recorded by the Investigating Officer. This Court has also perused the contents of the impugned FIR. 10. The impugned FIR has been registered for the offence under Sections 323, 504, 506(2) and 114 of the IPC and for the offence under Section 3(1)(x) of the Atrocities Act. Since the learned Advocate Mr. Majmudar for the applicants does not press for the offence under Section 323 of the IPC, this Court is confining the present order to the other offences. A close scrutiny of the contents of the FIR reveal that it is alleged by the first informant that the applicants had used some abusive words towards his caste and also assaulted him and after beating him they have threatened of killing him. Thereafter, they went to their home. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench of this Court in Criminal Misc. Application No. 8421 of 2008 decision dated 19.12.2011. The Coordinate Bench of this Court after referring to the observations made by the Supreme Court, has observed thus:- "[6.0] Heard the learned Advocates appearing on behalf of the respective parties at length and considered the averments and allegations made in the impugned FIR. At the outset, it is required to be noted that except bare statement made by the Complainant that the accused persons used some word and called the Complainant by his caste, there are no further allegations or averments in the FIR. It is also required to be noted that even the impugned FIR has been lodged after a period of 1 year and 3 months and as such there is no explanation at all to explain the delay of 1 year and 3 months. It is also required to be noted that even the impugned FIR has been lodged after a period of 1 year and 3 months and as such there is no explanation at all to explain the delay of 1 year and 3 months. In the case of Asmathunnisa (Supra), relying upon the decision of the Hon'ble Supreme Court in the case of Gorige Pentaiah v. State of Andhra Pradesh reported in (2008) 12 SCC 531 , the Hon'ble Supreme Court has specifically observed and held that according to the basis ingredients of Section 3(1)(x) of the Act, the Complainant ought to have alleged that the appellant - accused was not a member of the Scheduled Caste or Scheduled Tribe and he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In absence of such averment in the Complaint, the Hon'ble Supreme Court quashed and set aside the Complaint in exercise of powers under Section 482 of the CrPC." 11. In the present case, the first informant has not alleged that the applicants have intentionally insulted or intimidated him with an intend to humiliate in a place within public view though they were aware that he was not a member of Scheduled Caste and Scheduled Tribe. The Coordinate Bench of this Court in absence of such averments in the FIR has quashed the same. It is pertinent to note that the first informant has only in a general manner has stated that the applicants had uttered some objectionable words towards his caste. The FIR is bereft of utterances allegedly used by the applicants. The respondent No. 2 has not stated that he was insulted by using such objectionable words. The abusive words are not specifically narrated in the FIR. 12. Unquestionably, in the present case, no such averments are made in the impugned FIR by the first informant that he was intentionally insulted or intimidate by the applicants though they were aware that he was member of the Scheduled Caste and Scheduled Tribe. Thus, as regards the offence of Atrocities Act are concerned, the issue is squarely covered by the judgment of the Coordinate Bench and hence, the same is required to be quashed and set aside. 13. Section 503 of the IPC defines "criminal intimidation", which reads as under:- "503. Thus, as regards the offence of Atrocities Act are concerned, the issue is squarely covered by the judgment of the Coordinate Bench and hence, the same is required to be quashed and set aside. 13. Section 503 of the IPC defines "criminal intimidation", which reads as under:- "503. Criminal intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this Section. Illustration A, for the purpose of inducing B to desist from prosecuting a Civil Suit, threatens to burn B's house. A is guilty of criminal intimidation." Section 506 of the IPC prescribes for "Punishment for criminal intimidation", which reads as under:- "506. Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a ' woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 14. As regards the offence under Section 506(2) of the IPC is concerned, no offence is said to have been established against the applicants in the present case since the contents of the FIR reveal that the alleged criminal intimidation has not caused any alarm to the first informant. It is settled proposition of law that mere threats given by the accused not with an intention to cause alarm to the Complainant would not constitute the offence of criminal intimidation. It is settled proposition of law that mere threats given by the accused not with an intention to cause alarm to the Complainant would not constitute the offence of criminal intimidation. It appears that the impugned F.I.R. has been lodged with oblique motive to wreck vengeance against the applicants due to lodging the Complaint against him and hence, the same is required to be quashed and set aside. 15. On the backdrop of the aforenoted analysis, the present application is allowed. Impugned F.I.R. being C.R. No. II-3068 of 2014 registered at Anand Rural Police Station, District Anand, as well as all other consequential proceedings arising out of the aforesaid F.I.R are hereby quashed and set aside qua the applicants. Rule is made absolute. Direct service permitted.