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2019 DIGILAW 768 (GUJ)

Anwar Ahmad Pathan v. State of Gujarat

2019-08-08

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. At the outset, learned advocate Mr. Gandhi appearing for the petitioner has stated that he does not press the petition for quashing of offence under Section 504 of the Indian Penal Code, 1860 ("the IPC"). 2. The present petition is filed seeking quashing of the F.I.R. being C.R. No. 11-134 of 2015 registered with Bardoli Police Station, District: Surat for the offences punishable under Section 504 of the IPC and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Atrocities Act"). 3. The brief facts of the case are that the first informant - Sheelaben Rameshbhai Rathod - respondent No. 2 lodged F.I.R. on 08.10.2015 bearing C.R. No. 11-134 of 2015 for the alleged incident taken place on 07.10.2015 at around 8.30 p.m. with Bardoli Police Station, District: Surat. It is alleged in the impugned F.I.R. that before 15 years, House No. 5234 was allotted in favour of her deceased husband in the "Indira Aawas Project". It is submitted that the house opposite to her residence in New Indira Aawas was originally allotted to Ramiben Madhubhai Rathod and Ratanjibhai Jinabhai Rathod. It is submitted that since last five years, the petitioner - accused is residing in the said both houses as tenant. Thereafter, a quarrel between the first informant and the petitioner had taken place, wherein the petitioner had claimed the ownership of the said property, however, no police complaint was filed. It is alleged that in the last Ramzan, the petitioner had come to her house and had given threats by saying that the houses, wherein you people are residing belongs to him, so vacate it at the earliest, else my parents will enter into the house forcefully, for which they will not be responsible. Thereafter, she requested that the houses were allotted by the Government and, therefore, you can raise your complaint to the Government authorities. It is alleged that on 07.08.2015, when the first informant was at home and after having meal at night, she went outside to throw trash in the gutter situated near to her house, at that time, the petitioner had objected to and started abusing her by saying that they are throwing trash in their boundaries, and they are of lower caste and will never improve their mentality. It is alleged that the petitioner used insulting language qua her caste. It is alleged that the petitioner used insulting language qua her caste. At that time, her daughter Shital was also present. The petitioner again threatened to vacate the premises and shouted at them, however, since the people started gathering, he ran away. After the said incident, she met Deputy Sarpanch - Bipinbhai and informed about the incident. He told that he will talk to the petitioner, but he did not keep his words, and thereafter, she lodged the impugned F.I.R. against the petitioner. 4. Learned advocate Mr. Gandhi appearing for the petitioner has submitted that the respondent No. 2, who is one of the encroachers and illegal occupants of the property being City Survey No. 1230 admeasuring 300-72 sq.mtrs., has lodged the said concocted F.I.R. by inserting the provision of the Atrocities Act against the petitioner by adopting pressurize tactics. He has submitted that the respondent No. 2 is claiming to be the occupant of House No. 5234 allotted in favour of her deceased husband and the petitioner is residing as tenant in the houses situated opposite to her house. He has submitted that no such houses are constructed under the said project on the said land. In fact, the entire City Survey No. 1230, wherein the said residential houses, are of the private ownership of one Kalumiya Usmanmiya Malek. Thus, he has submitted that the impugned F.I.R. is abuse of process of law and it may be quashed. 4.1. Learned advocate Mr. Gandhi has placed reliance on the judgment of the Supreme Court in the case of Asmathunnisa vs. State of Andhra Pradesh, 2011 (11) SCC 259 and has submitted that it is not stated by the first informant that she was insulted by using the objectionable words deliberately on the ground that she belongs to the reserve caste. Reliance is also placed on the judgment of the Coordinate Bench of this Court in Criminal Misc. Application No. 8421 of 2008 decision dated 19.12.2011 (in the case of Pravinbhai Gordhanbhai Patel & Anr. vs. State of Gujarat & Anr.) 4.2. Learned advocate Mr. Gandhi has submitted that by perusal of the said F.I.R. it can be seen that there is a dispute in respect of the ownership and occupancy of the residential house between the parties. Application No. 8421 of 2008 decision dated 19.12.2011 (in the case of Pravinbhai Gordhanbhai Patel & Anr. vs. State of Gujarat & Anr.) 4.2. Learned advocate Mr. Gandhi has submitted that by perusal of the said F.I.R. it can be seen that there is a dispute in respect of the ownership and occupancy of the residential house between the parties. He has submitted that with a view to overcome to the said dispute, the impugned F.I.R. was lodged by concocting the story of the incident dated 07.10.2015 about throwing junk in the gutter and with a view to insert provisions of the Atrocities Act, alleged words were inserted. He has submitted that by perusal of the F.I.R., it can be seen that the alleged incident has taken place in a private place during night hours and no one except her daughter was present. The public alleged to have been gathered after speaking the alleged words by the petitioner. Thus, he has submitted that the impugned F.I.R. is liable to be quashed and set aside. 4.3. Learned advocate Mr. Gandhi has submitted that from the allegations made in the F.I.R. it clearly appears that : (a) the alleged offence under Atrocities Act has not taken place in any public place, and those words were alleged to have been spoken in presence of her daughter at the private place; (b) the public alleged to have been started gathering after the alleged incident had taken place; (c) the petitioner was not present when the public alleged to have been gathered; and (d) there were some disputes in relation to the ownership of the property. He has submitted that the provision under sub-section (x) of Section 3 of the Atrocities Act provides intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Thus, he has submitted that the ingredients of sub-section (x) of Section 3 of the Atrocities Act have not been satisfied. Thus, he has submitted that the ingredients of sub-section (x) of Section 3 of the Atrocities Act have not been satisfied. Reliance is also placed on the judgment of the Coordinate Bench of this Court in the case of Dhiren Prafulbhai Shah vs. State of Gujarat & Ors., (2016) 4 GLR 2785 , for the proposition of law that the incident in question cannot be said to have occurred within "public view' as defined under clause (x) in section 3 of the Atrocities Act, since not members of public were present. 5. Learned Additional Public Prosecutor Ms. Bhatt has submitted that the Investigating Officer has recorded the statements of the witnesses. All are the family members and the relatives and are residing in Hijdi Faliyu. One Daxaben, wife of Nanubhai Hirabhai Rathod is the mother-in-law of the daughter of the first informant and Dhanuben Vanmalibhai Rathod is the sister-in-law of the first informant. Thus, all the five witnesses are closely related to the first informant. 6. This Court, in the judgment in the case of Dhiren Prafulbhai Shah vs. State of Gujarat & Ors., (2016) 4 GLR 2785 after survey of judgment rendered by the Apex Court has held thus: "23. Basic ingredients for the offence under Clause (x) of Sub-section of Section 3 of the Act, revealed through the bare reading of this section are as follows: (a) there should be intentional insult or intimidation by a person, who is not a member of SC or ST; (b) the insult must be with an intent to humiliate the member of the SC or ST. As the intent to humiliate is necessary, it follows that the accused must have knowledge or awareness that the victim belongs to the SC or ST. This can be inferred even from long association; and (c) the incident must occur in any place within the public view. There cannot be any dispute that the offence can be committed at any place whether it is a private place or a "public view" as long as it is within the "public view". The requirement of "public view" can be satisfied even in a private place, where the public is present. 24. The difficulty is only as regards the true and correct import of the expression "public view" which is used by the Legislature in contra distinction to the expression "private view". The requirement of "public view" can be satisfied even in a private place, where the public is present. 24. The difficulty is only as regards the true and correct import of the expression "public view" which is used by the Legislature in contra distinction to the expression "private view". The 'View' here means sight or vision and hearing. Only meaning of the word "public" is left to be found in the context in which it is used. 25. The expression "public" is a polimorphus word, which assumes different colours in different context. Judges and jurists have so far not found it possible to work out a complete logical definition of the words "public" universally applicable to all situations. Corpus Juris (page 844) defines "public" as under: "PUBLIC AS A NOUN does not have a fixed or definite meaning; it is a convertible term. In one sense, the "public" is everybody; and accordingly "public" has been defined or employed as meaning the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or country; the people; the whole body politic; or all the citizens of the state. In another sense the word does not mean all the people, or most of the people, nor many of the people of a place, but so many of them as contra distinguished them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighbourhood. 'B'. As an adjective 1. In General. It is said to be very difficult, if not impossible to frame a definition for the word "public" that is simpler or clearer than the word itself; a convertible term, used variously, depending for its meaning upon the subjects to which it is applied. It has two proper meanings." 26. xxx xxx xxx 27. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub-clauses (I) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub-clauses (I) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The Legislature required intention as an essential ingredient for the offence of "insult", "intimidation" and "humiliation" of a member of the Scheduled Castes or Scheduled Tribe in any place within "public view". Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded." 7. This Court has further held that ".....the expression of public view in Section 3(1)(x) of the Atrocities Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In the present case, the investigation reveals that no independent members of public were present. All the witnesses are related to the first informant. The witnesses are family relatives of the first informant, who were also residing near her house. 8. Thus, in the considered opinion of this Court, in light of the observations made in the judgment in the case of Dhiren Prafulbhai Shah (supra), the act does not disclose that the accusations having been made in a place within the "public view" and hence, the offence alleged under Section 3(1)(x) of the Atrocities Act is hereby ordered to be quashed and set aside. So far as the offence under Sections 507 and 114 of the IPC are concerned, the investigation can be proceeded forthwith. 9. So far as the offence under Sections 507 and 114 of the IPC are concerned, the investigation can be proceeded forthwith. 9. The Coordinate Bench of this Court after considering the judgment of the Apex Court in the case of Gorige Pentaiah vs. State of Andhra Pradesh, (2008) 12 SCC 531 , has held 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. 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 Cr.P.C." 10. The impugned F.I.R. is bereft of the allegation that the petitioner was not a member of the SC or ST and the complainant was intentionally insulted or intimidated by the accused with intent to humiliate in a place within a public view. 11. In view of the foregoing observations, the impugned F.I.R. being C.R. No. 11-134 of 2015 registered for the offence under Atrocities Act with Bardoli Police Station, District: Surat, and all the consequential proceedings arising out of the same F.I.R. are hereby quashed and set aside. 12. It is clarified that the as regards the offence under section 504 of IPC, further proceedings are sustained. 12. It is clarified that the as regards the offence under section 504 of IPC, further proceedings are sustained. Rule is made absolute qua the aforesaid extent only.