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2020 DIGILAW 580 (GUJ)

Vinubhai Devshibhai Nakrani v. State Of Gujarat

2020-06-29

ASHOKKUMAR C.JOSHI

body2020
JUDGMENT : “Every human being has an inherent right to be treated with dignity and should never be a victim of any form of discrimination by reason of caste identity.” “Constitutional Value” 1. Since both the petitions were ordered to be tagged and placed before this court and both sides have requested this court for having common judgment in both the petitions for quashing, both the petitions were heard together and the order is passed as a common order. For the sake of conveniency, Criminal Miscellaneous Application No.7510 of 2020 is treated as the lead matter. 2. Heard learned advocate Mr. N.K. Majmudar for the petitioner, learned advocate Mr. Mrudul Barot for the Respondent No.2 and learned APP Mr. Chintan Dave for the respondent State of Gujarat through video conference. 3. Petitioner Vinubhai Devshibhai Nakrani alias V.D. Nakrani has moved this Court for invoking the jurisdiction under section 482 of Criminal Procedure Code for quashing FIR being C.R. No.11193003200300/2020 dated 7.3.2020. 3.1 The petitioner has prayed for the following reliefs from this Court: “(B) Be pleased to pass appropriate order under provision of section 482 of Criminal Procedure Code, 1973 and be pleased to quash and set aside the FIR (C.R. No.11193003200300/2020) dated 7.3.2020. (C) By way of interim order be pleased to restrain the investigating officer i.e. Police Inspector, Amreli City Police Station from affecting arrest of the petitioner in connection with the FIR C.R. No.11193003200300/2020 dated 7.3.2020 pending admission and final hearing of the present appeal.” 4. Factual matrix of the petition is as under: 4.1 The petitioner is Director of Amreli Marketing Yard and is earning his livelihood through agricultural activities and is highly respected resident of Amreli. It is contended in the petition that on 6.3.2020 the petitioner was standing at the entrance/ at the main gate of Amreli District Central Cooperative Bank at about 5:30 PM to 5:54 PM with one (1) Tusharbhai Joshi (2) Ruzulbhai Gondaliya, (3) Chandubhai Ramani (4) Rameshbhai Shingada (5) Rajubhai Khabri and with (6) Rajubhai Gajera and at that juncture Shileshbhai Parmar (Brother of Prakashbhai Parmar) had come and had started using filthy language to the petitioner. It is also contended that, he exhibited threats to the effect that the petitioner would be killed and he had also exhibited threats in presence of the aforesaid persons to the petitioner that he would register FIR for the offences under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the petitioner and he had started using absolutely indecent and filthy words for one another director namely Shri P.P. Sojitra and he had started using very dirty, abusive and filthy language for Shri P.P. Sojitra who is also a director of Amreli Market Yard and as the petitioner had requested him not to use filthy language for P.P. Sojitra, however, Shaileshbhai Haribhai Parmar (Brother of Prakashbhai Haribhai parmar) had lost his patience and had given a severe slap upon the face of the petitioner and had exhibited threats to the petitioner that he would kill the petitioner and would get registered the FIR under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the petitioner and his entire family. At this juncture, many persons had intervened and ultimately Shaileshbhai Haribhai Parmar left the place of incident. It is also contended that the petitioner approached the Amreli City Police Station vide FIR C.R. No.11193003200293/2020 dated 6.3.2020 for the alleged offence punishable under sections 323, 504, 506(2) IPC. 5. It is also contended that there is also recording of CCTV camera and CCTV footage clearly reveals the commission of offence by the accused Shaileshbhai Haribhai Parmar. It is also on record that there is recording of cell phone which is exactly 6:05 PM and for 36 seconds. 6. It is also contended that the petitioner remained present in the market yard upto 7:00 PM on 6.3.2020. It is also contended that as a counterblast the brother of accused, Prakashbhai Parmar registered the FIR dated 7.3.2020 for the alleged offences under section 323, 506(2) IPC as well as offence under section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act”, in brief). 7. It is further contended that the so-called FIR being registered by the respondent No.2 i.e. Prakashbhai Haribhai Parmar who is brother of Shaileshbhai Haribhai Parmar against whom the petitioner registered FIR being C.R. No.11193003200293/2020 dated 6.3.2020. 7. It is further contended that the so-called FIR being registered by the respondent No.2 i.e. Prakashbhai Haribhai Parmar who is brother of Shaileshbhai Haribhai Parmar against whom the petitioner registered FIR being C.R. No.11193003200293/2020 dated 6.3.2020. It is also further contended that it is alleged in the FIR by the respondent No.2 that the respondent No.2 had gone to one pan shop at 6:00 pm on 6.3.2020 and at that juncture as alleged in the FIR, the petitioner had informed the respondent No.2 as to why he has made representation against Shri P.P. Sojitra and it had been further alleged that the petitioner had inflicted kick and fist blows to the respondent No.2. In the said FIR being C.R. No.11193003200300/2020 dated 7.3.2020 the respondent No.2 had mentioned the time of occurrence of the alleged offence as 6:00 PM on 6.3.2020 though the petitioner was already in marketing yard from 5:54 PM and onwards upto 7:00 PM no such alleged incident had ever taken place. The petitioner had never inflicted any kick and fist blows to the respondent No.2. On the contrary, respondent No.2 had made phone call to the petitioner exactly at 6:05 PM upon the cell phone number of the petitioner and the petitioner was requested not to get register any FIR against Shaileshbhai Haribhai Parmar the brother of the respondent No.2 and the same is annexed at Annexure-D to the application. It is also contended that FIR dated 7.3.2020 came to be registered by the respondent No.2 Prakashbhai Haribhai Parmar for the alleged offence as counterblast to FIR filed by the petitioner. 8. It is also contended that Criminal Miscellaneous Application No.240 of 2020 had been preferred before the Sessions Court and the same was rejected. It is also contended that the FIR is absolutely frivolous and vexatious and the same may be quashed and set aside. It is also contended that there are no averments made in the FIR for attracting the ingredients of section 3(2)(va) of the Atrocities Act. 9. Learned Advocate Mr N.K. Majmudar for the petitioner has placed reliance upon various authorities which would be discussed hereinafter and prayed for quashing FIR C.R. No.11193003200300/2020 dated 7.3.2020. 9.1 Learned advocate Mr N.K. Majmudar has vehemently argued that there are two FIRs, one is lodged by the petitioner and the second one is lodged by the respondent No.2. 9. Learned Advocate Mr N.K. Majmudar for the petitioner has placed reliance upon various authorities which would be discussed hereinafter and prayed for quashing FIR C.R. No.11193003200300/2020 dated 7.3.2020. 9.1 Learned advocate Mr N.K. Majmudar has vehemently argued that there are two FIRs, one is lodged by the petitioner and the second one is lodged by the respondent No.2. Not only that, he has drawn the attention of this court that it is mentioned in the petition that the previous day of FIR as filed by the respondent No.2, the petitioner was standing at the gate of Amreli District Central Cooperative Bank along with six other persons, the brother of Prakashbhai Parmar i.e. Shaileshbhai Parmar had come and started using filthy language and also given threat to file complaint under the Atrocities Act. Therefore, this is nothing but a counterblast of the previous day incident and, therefore, the same deserves to be quashed and set aside under section 482 of Criminal Procedure Code. 9.2 It is further contended that there are sufficient call recordings and sufficient evidence with the petitioner that the respondent No.2 has filed false and fabricated complaint against the petitioner. 9.3 Learned advocate Mr Majmudar has also drawn the attention of this court to the provisions of the Atrocities Act which would be referred to hereinafter at an appropriate place. 9.4 Learned advocate Mr. Majmudar has vehemently argued that either knowledge or intention has to be alleged in the complaint and the same is sine qua non. If the same is not averred in the FIR in that case this is fit case for exercise of discretion vested under section 482 of Criminal Procedure Code. 9.5 Learned advocate Mr Majmudar has heavily placed reliance on various authorities which are as under:- (1) Sandip @ Sanjay @ Tako Chhaganbhai Ughreja v/s. State of Gujarat, 2016 (0) AIJEL-HC 233882. (2) Pramod Suryabhan Pawar v/s. State of Maharashtra, 2019 (0) AIJELSC 64627 = 2019 (9) SCC 608 (3) Kamlesh v/s. State of Rajasthan, 2019 CrLR (SC) 874 (4) Asharfi v/s. State of Uttar Pradesh, 2017 (0) AIJEL –SC 61430. (2) Pramod Suryabhan Pawar v/s. State of Maharashtra, 2019 (0) AIJELSC 64627 = 2019 (9) SCC 608 (3) Kamlesh v/s. State of Rajasthan, 2019 CrLR (SC) 874 (4) Asharfi v/s. State of Uttar Pradesh, 2017 (0) AIJEL –SC 61430. (5) Barot Prashant Narendrabhai v/s. State of Gujarat, 2019 (0) AIJELHC-240673 (6) Parbat Dahyabhai Rabari v/s. State of Gujarat, 2010 (0) AIJEL-HC 224346 (7) Nai Natwarlal Motiram v/s. State of Gujarat, 2019(0) AIJEL-HC-240929 (8) Union of India v/s. State of Maharashtra , AIR 2019 SC 4917 (9) Prithvi Raj Chauhan v/s. Union of India, 2020 (0) AIJEL-SC 65745 (10) Anwar Ahmad Pathan v/s. State of Gujarat, 2019 (3) GLH 515 (11) Khuman Singh v/s. State of Madhya Pradesh, 2019 (0) AIJEL-SC- 64667 (12) Pravinbhai Gordhanbhai Patel v/s. State of Gujarat, 2019 (0) AIJELHC-240972. (13) Criminal Appeal No.590 of 2020 order dated 10.6.2020 (Coram: A.Y. Kogje, J) wherein it was observed at paragraph 13 that the observation made by a coordinate bench was pertaining to only section 438 Cr PC. 9.6 Upon such submissions, learned advocate Mr. Majmudar has heavily submitted that inherent powers are required to be exercised in favour of the petitioner to quash the FIR under section 482 of Cr. PC. 9.7 Lastly, learned advocate Mr. N.K. Majmudar has submitted that the investigating agency is required to make preliminary inquiry in such case under Atrocities Act and thereafter the concerned Investigating Officer is required to submit the report instead of straightway filing it. 10. Per contra, learned advocate Mr. Mrudal Barot for original complainant has vehemently submitted that as per the latest order passed by this court (Coram: A.Y. Kogje, J) especially for anticipatory bail under section 438 of Criminal Procedure Code preferred by the present petitioner and the same was rejected only on the basis of prima facie case as observed by this court. In the said case, this court has also placed reliance upon evidence of the eyewitness and medical certificate. Therefore, FIR is not required to be quashed. 10.1 The second limb of argument of Mr. Mrudul Barot, learned advocate for the complainant is that when the complainant as well as the petitioner both belongs to the same city ie. Amreli and everybody is knowing chairman of the market yard. The chairman is also known to the complainant. Therefore, FIR is not required to be quashed. 10.1 The second limb of argument of Mr. Mrudul Barot, learned advocate for the complainant is that when the complainant as well as the petitioner both belongs to the same city ie. Amreli and everybody is knowing chairman of the market yard. The chairman is also known to the complainant. Therefore there is no question of identification and, therefore, complainant has rightly filed the complaint for the offence under the Atrocities Act. It is further argued that the petitioner was knowing that the complainant belongs to the scheduled caste despite which he has beaten complainant in public place, such fact is supported by medical certificate coupled with eyewitness and therefore, this is not a fit case to quash the FIR. 10.2 Learned advocate Mr. Barot has also placed reliance upon the provisions of section 3(2)(va) of the Atrocities Act . It is also contended that in the present case it is not only the case under the Atrocities Act but also a case under the Indian Penal Code i.e. under section 323 IPC and, therefore, for the offence under section 323 IPC coupled with the offence under the Atrocities Act, prima facie the same is observed in FIR and, therefore the petition deserves to be dismissed. 10.3 Learned advocate Mr. Barot has placed reliance upon the judgment of this court in Snehaben Ishanbhai Gandhi v/s. State of Gujarat reported in 2020 (1) GLR 274 (Coram : A.S. Supehia, J.) wherein the petitioner was knowing that the complainant belongs to the member of Scheduled Caste. Further the offence was also under the Indian Penal Code and, therefore, in the present case also the offence is made out under Indian Penal Code coupled with the injured eyewitness supported by medical evidence. Therefore also, FIR is not required to be quashed. 10.4 Mr. Barot has also placed reliance upon the decision of the Supreme Court in Sanjeet Kumar v/s. State of Bihar reported in 2009 (12) SCC 136 . 10.5 Mr. Barot has also placed reliance upon the Full Bench judgment of the Apex Court in Prithvi Raj Chauhan v/s. Union of India, 2020 AIR SC 1036 wherein Hon’ble Supreme Court has observed that the high court has to balance when the powers under section 482 or under section 438 are required to be exercised sparingly. 10.5 Mr. Barot has also placed reliance upon the Full Bench judgment of the Apex Court in Prithvi Raj Chauhan v/s. Union of India, 2020 AIR SC 1036 wherein Hon’ble Supreme Court has observed that the high court has to balance when the powers under section 482 or under section 438 are required to be exercised sparingly. If it is prima facie case under section 438 then the same is not to be exercised neither in 438 nor in 482. 10.6 Mr. Mridul Barot for the complainant has also placed reliance upon paragraph 11 and 12 of a coordinate bench decision (Coram: A.Y. Kogje, J) wherein it is clearly observed by the Co-ordinate Bench upon petition of present applicant (emphasis supplied) for section 438 of Cr.PC.. It is the case of Atrocities Act coupled with offence under section 323 IPC and, therefore, the petition is not required to be allowed and FIR is not required to be set aside or quashed. 11. Learned APP Mr. Chintan Dave for the State has supported the arguments advanced by Mr Barot for the original complainant. That as per the report of Investigating Agency, there is eyewitness who is independent witness and the complainant is injured for which medical certificate is produced. Therefore, FIR is not required to be quashed. Further the Coordinate Bench (A.Y. Kogje, J) has held that prima facie case of petitioner is made out and therefore also, the petition is required to be dismissed. 11.1 Learned APP Mr. Chintan Dave for the State has lastly submitted that investigation is in motion and, therefore let the investigating agency submit the final outcome of the investigation and if the truth is not on record agency may file report accordingly in accordance with the provisions of Criminal Procedure Code and, therefore, at this stage this is not the fit case to exercise the powers under section 482 of Criminal Procedure Code. 12. It appears that both the matters were ordered to be tagged and thereafter placed before this court. The advocates for both the sides have agreed to argue concurrently and, therefore, the order is passed as a common judgment, but both complaints are independent and therefore to that extent, the court has to examine accordingly. 13. Learned advocate Mr. 12. It appears that both the matters were ordered to be tagged and thereafter placed before this court. The advocates for both the sides have agreed to argue concurrently and, therefore, the order is passed as a common judgment, but both complaints are independent and therefore to that extent, the court has to examine accordingly. 13. Learned advocate Mr. Mrudul Barot for the petitioner in Criminal Miscellaneous Application No.7981 of 2020 has vehemently argued that false case is registered upon him since it is not counterblast of the FIR dated 6.3.2020 and since the timing of the incident are as good as same as shown in FIRs dated 6.3.2020 and 7.3.2020 that is 6.00 pm in the first FIR and 6.15 pm in the next. Further since the brother of the complainant was in hospital and, therefore, same is filed on 7.3.2020. Further it is contended by learned advocate Mr. Barot that there is nothing on C.C.T.V. camera as per the allegation levelled in the FIR and, therefore, FIR dated 06.03.2020 is required to be quashed under section 482 of the Criminal Procedure Code, wherein he is representing the petitioner in Criminal Misc. Application No. 7981 of 2020. 14. Learned APP Mr. Chintan Dave has vehemently argued on behalf of the State that as per the report of the investigating agency both the FIRs are true and prima facie both FIRs are neither concocted nor false. Therefore, let the investigation be proceeded and its outcome will say about true or false. Learned APP has, therefore, argued that both the F.I.Rs are not required to be quashed. 15. In Re, learned advocate Mr. N.K. Majmudar submitted in brief that why the complainant immediately went to home and not Hospital or police station. Therefore also, FIR is false and deserves to be quashed. 16. Having heard the arguments advanced by the learned advocates for all the sides both the petitions pertain for quashing under section 482 of the Criminal Procedure Code and, therefore, it is profitable to refer section 482 Cr. PC as it is. Therefore also, FIR is false and deserves to be quashed. 16. Having heard the arguments advanced by the learned advocates for all the sides both the petitions pertain for quashing under section 482 of the Criminal Procedure Code and, therefore, it is profitable to refer section 482 Cr. PC as it is. “482 Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 16.1 Upon plain reading of the section, it starts with the word “Nothing in this Code shall be deemed to limit....”. It means this Court has extraordinary powers where there is no limit under the provisions to exercise for the same. Further, it states “affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code”. It means, again if the powers are exercised under this provision, it shall not effect to the inherent powers of the High Court. Further, legislation has used the word “May”. Therefore, it is purely discretionary power. Further, it reads with the words “to prevent abuse of the process of any Court or otherwise to secure the ends of justice”. It means this Court has to examine; (i) to prevent the abuse of process of the Court; and (ii) or otherwise to secure ends of justice from the facts of cases on hand. Both the objectives are also considered by Hon'ble Supreme Court in case of Narendra Sing v. State of Punjab [ 2014 (6) SCC 466 ]. 16.2 It is true that nowhere in the Code, there is explanation of abuse of process of the court, nowhere it is discussed. Both the objectives are also considered by Hon'ble Supreme Court in case of Narendra Sing v. State of Punjab [ 2014 (6) SCC 466 ]. 16.2 It is true that nowhere in the Code, there is explanation of abuse of process of the court, nowhere it is discussed. Simultaneously, explanation for securing the ends of justice is also not defined and therefore, every case has different facts and circumstances, but simultaneously, to arrive at true conclusion or to exercise the extraordinary powers, I have to rely on landmark decisions of Hon'ble Supreme Court, before I come to the final merits of the petition, for exercising powers under Section 482 of the Code, are as under:- [A] Hon'ble Supreme Court in case of Parbhatbhai Ahir v. State of Gujarat [ 2017 (9) SCC 641 ], following 10 principles have been laid down, which are as under:- “1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. 2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. 4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (a) to secure the ends of justice. (b) to prevent an abuse of the process of any court. 5. 4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (a) to secure the ends of justice. (b) to prevent an abuse of the process of any court. 5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. 6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. 7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. 8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. 9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and. 10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." [B] Further, in the case of State of Haryana v. Bhajan Lal [ AIR 1992 SC 604 ], following 7 categories of cases had been laid down, which are as under:- “1. Where the allegations made in the FIR, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code. 3. Where the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer, unless a Magistrate has issued an order for the same, as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions f the Code or the concerned Act, under which a criminal proceeding is instituted, with regard 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. 7. 7. Where a criminal proceeding is manifestly attended with mala fide intention and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and/or personal grudge.” [C] Further, in case of R.P.Kapur v. State of Punjab [ AIR 1960 SC 260 ], Hon'ble Supreme Court has held that while exercising powers under Section 482 of the Criminal Procedure Code, a criminal proceedings against a person can be quashed if the case belongs to any one of the following classes: “1. Where there is a legal bar against institution or continuance of the criminal proceedings. 2. Where the allegations in the FIR do not constitute an offence, even if taken at face value and in their entirety. 3. Where the allegations made constitute an offence, but there is no evidence which can prove them.” 17. Having heard the arguments advanced by all the sides, once again it is made clear that these are not directly the cross cases but both the FIRs i.e. first FIR by the present petitioner i.e. V.D. Nakrani dated 6.3.2020 and the second FIR by Prakashbhai Haribhai Parmar dated 7.3.2020 both are independent and both the petitions are for quashing of the said FIRs under section 482 Cr.PC. and, therefore, the settled principles of law for the extraordinary jurisdiction under section 482 is common in both the FIRs whether to exercise or not and whether there is abuse of process of court or not, and whether by not invoking the extraordinary powers, ends of justice would be met or not, these are the questions which are required to be considered by this court. FACTUAL ASPECTS: 18. Pursuant to the so-called First Information Report dated 6.3.2020 which is given by Mr. V.D. Nakrani, as per the allegation, the place of occurrence of offence as shown in the said FIR is Opp. Gate of Amreli District Central Cooperative Bank, Amreli, Dist. Amreli and timing of the offence is 6.00 p.m. wherein Mr. V.D. Nakrani (hereinafter referred to as ‘P1’) was standing near the gate of Amreli District Central Cooperative Bank Ltd. with his friends, at that time, the accused (Shailesh Haribhai Parmar) uttered abusive words for Mr. P.P. Sojitra, ex Chairman of the marketing yard. Amreli and timing of the offence is 6.00 p.m. wherein Mr. V.D. Nakrani (hereinafter referred to as ‘P1’) was standing near the gate of Amreli District Central Cooperative Bank Ltd. with his friends, at that time, the accused (Shailesh Haribhai Parmar) uttered abusive words for Mr. P.P. Sojitra, ex Chairman of the marketing yard. At that time, the accused got provoked and slapped P1 and also gave threat to the P1 to kill him and to get register false FIR under the Atrocities Act. Therefore, he has registered complaint under sections 323, 504, 506(2) of IPC. 19. Simultaneously, on the next day i.e. on 7.3.2020, it appears that a First Information Report is filed by brother of Shaileshbhai Parmar i.e. Prakashbhai Haribhai Parmar (hereinafter referred to as ‘P2”’) against P1 of village Magvapad, Amreli, Dist. Amreli wherein the place of occurrence is shown as Opp. Om Pan House, Town Hall, Marketing Yard Road, Amreli, Dist. Amreli. In the second FIR, it is alleged that the complainant had gone to one pan shop at 6:00 PM on 6.3.2020 and at that juncture the accused i.e. V.D. Nakrani (P1) was standing there and he had informed the complainant as to why he has made representation against Shri P.P. Sojitra and if anybody will go against Mr. P.P. Sojitra he would kill him and by saying so the accused (P1) had inflicted kick and fist blows to the complainant and committed the offence. Hence, the complaint was registered under sections 323, 506(2) IPC and section 3(2)(va) of the Atrocities Act. LEGAL ASPECTS: 20. Learned advocate Mr. N.K. Majmudar has vehemently argued in his first limb of contentions that nowhere in the F.I.R. the ingredients of the provisions of the Atrocities Act are observed neither in the recital of F.I.R. nor mentioned in any papers and the same is condition precedent prima facie, to bring home the accused for the alleged offences. Learned advocate Mr. N.K. Majmudar has vehemently argued in his first limb of contentions that nowhere in the F.I.R. the ingredients of the provisions of the Atrocities Act are observed neither in the recital of F.I.R. nor mentioned in any papers and the same is condition precedent prima facie, to bring home the accused for the alleged offences. Therefore, this court would like to refer section 3(2)(va) of the Atrocities Act which is as under:- “Section 3 : Punishment for offences of atrocities (1) xxx xxx (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) to (v) xxx xxx (va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine.” FINDINGS: 21. In limine, as per the plain reading of section 3(2)(va) of the Atrocities Act, knowledge of accused is sufficient that complainant/victim is a member of Scheduled Caste or Scheduled Tribe. In the present case, pursuant to the FIR though it is not mentioned that accused person was knowing that the complainant is a member of Scheduled Caste or Scheduled Tribe but pursuant to the report of the Investigating Officer who is in the cadre of Dy. S.P. both the FIRs are not false, on the contrary, incident has occurred as per the submission in the report. Further, this court has gone through the statement of independent witness Anilbhai @Amitbhai Jivrajbhai Parmar, resident of Amreli Chital Road, Opp. Gayatri Temple, District Amreli, who has prima facie supported the complaint of P2 – Prakashbhai Haribhai Parmar. Not only that same is supported by medical certificate dated 6.3.2020 which shows that P2 has taken treatment on 6.3.2020 at 9.36 pm in General Hospital, Amreli wherein name of assaulter is shown as V. D. Nakrani (P1) and that is prima facie natural. Further, pursuant to the police report dated 02.06.2020, of Mr. R.D. Oza, Dy.SP. (SC/ST Cell, Amreli) P2 has taken treatment. Further, pursuant to the police report dated 02.06.2020, of Mr. R.D. Oza, Dy.SP. (SC/ST Cell, Amreli) P2 has taken treatment. The Investigating Officer has also taken statements of eyewitness and others and thereafter he has made report that even pursuant to CCTV footage it is not true that both the cases/offences have not been occurred. In short Dy. S.P. i.e. Investigating Officer has made prima facie clear cut case that offences have occurred. Further, it is undisputed fact that both complainant (P2) and the accused(P1) are residing in the same District Amreli. Further prima facie it appears that P2 is doing the work of contractor/out sourcing or house keeping (Safai Kamdar). Therefore, his bills were pending he would have made representation to the concerned person. Therefore, as per the case of P1 in First FIR dated 06.03.2020, brother of complainant has used abusive language and given threat to file false atrocity case. It appears that as per independent witness Anilbhai @Amitbhai Jivrajbhai Parmar when he returned from his office at 6.00 pm P1 had attacked P2 on account of protest of Mr. P.P. Sojitra Sir thereafter independent witness and P2 have gone to the residence. There was pain in the body of P2. Therefore he was admitted in the General Hospital, Amreli. 22. Here, learned advocate Mr. Majmudar vehemently submitted that when P2 was beaten in that case why he has preferred to go home. But in humble view of this court, ordinarily, a man of prudence can very well say that in minor injuries or even at times in serious injuries a person would prefer firstly to go at his home. Here it is a case of simple injury not only that as per the medical jurisprudence, prima facie mudhh gha i.e. superficial blow will start causing pain after some time. Initially, the body will try to tolerate the pain which may raise subsequently. When P2 who is member of scheduled caste was admitted to hospital at 9.36 pm though incident occurred at 6.00 pm it does not mean that it is a concocted story. Medical certificate discloses the name of V. D. Nakrani, who had assaulted the complainant (P2). Initially, the body will try to tolerate the pain which may raise subsequently. When P2 who is member of scheduled caste was admitted to hospital at 9.36 pm though incident occurred at 6.00 pm it does not mean that it is a concocted story. Medical certificate discloses the name of V. D. Nakrani, who had assaulted the complainant (P2). Though, this Court is neither on the verge of trial of the matter nor seating in appeal, but when the learned advocate has heavily submitted on such aspect it is the duty of this Court to respond to the same and render the verdict on the same lines. On the basis of both FIRs as well as the report of the Investigating Officer, Medical certificate and the statement of the independent witness, prima facie case of incident has been made upon P2 i.e. good case for trial, if chargesheet is filed on the lines while deciding question of fact whether Mr. V.D. Nakrani has knowingly inflicted blow (kick and fist) (Mudhh gha) upon Prakash Parmar (P2) who is member of Scheduled Caste, in public place, therefore, prima facie attract the provisions of offence under section 3(2)(va) of the Atrocities Act and therefore, if investigation is proceeded towards allegations in FIR, it appears there is no abuse of process of law. Simultaneously, if extra ordinary powers under Section 482 are not exercised then also one cannot say that ends of justice would not meet. In short, after the amendment in the Atrocities Act, in January 2016, mere knowledge of accused is sufficient. Here pursuant to the nature of both the FIRs and Police Papers, it transpires that complainant of the first FIR was knowing the complainant of the second FIR. Further, it is made clear that on perusal of recitals of FIR as well as police papers, it transpires that P1 has also moved to the Dy. S.P. also on the grievance that in fact incident occurred between 5.30 pm to 6.36 pm but the time is mentioned as 6.00 pm so it is the mistake of the concerned PSO. He has made certain allegations also. Not only that pursuant to the cumulative reading of the papers prima facie it is a fit case for investigation in detail and this Court at this juncture is in full agreement with the learned APP Mr. He has made certain allegations also. Not only that pursuant to the cumulative reading of the papers prima facie it is a fit case for investigation in detail and this Court at this juncture is in full agreement with the learned APP Mr. Chintan Dave that investigation should go on and let the outcome speak about the commission of offences, instead of straightway quashing FIRs. 23. Learned advocate Mr. N.K. Majmudar has heavily placed reliance on different authorities as under: (1) Sandip @ Sanjay @ Tako Chhaganbhai Ughreja v/s. State of Gujarat, 2016 (0) AIJEL-HC 233882. In this case the Court has clearly held that before invoking the offence under the Atrocities Act, the averments to that extent in the FIR is sine qua non. Relevant paragraphs are 5, 6, 7, 10, 11 and 12. Ratio: Held, to attract the provisions of Section 3(2)(v) of the Atrocities Act, sine qua non is that the victim should be a person who belongs to a Scheduled caste or a Scheduled tribe and that the offence under the Indian Penal Code is committed against such victim on the basis that such a person belongs to a scheduled caste or a scheduled tribe – in the absence of such ingredient, no offence u/s. 3(2)(v) of the Act arises. With respect, this Court is in full agreement with the law laid down by this Court. However, the facts and circumstances of the present case are totally different than of the facts of the judgment relied upon. As discussed earlier, the accused person was knowing the brother of the complainant as well as the complainant and as per the allegation, the incident occurred. Therefore, this judgment is not helpful to the petitioner. (2) Pramod Suryabhan Pawar v/s. State of Maharashtra, 2019 (0) AIJELSC 64627 = 2019 (9) SCC 608 for the proposition that the averments made in the FIR must suggest the knowledge and intention of accused to commit the offence on the day of incident. Relevant paragraphs 8, 19, 20 and 22. Therefore, this judgment is not helpful to the petitioner. (2) Pramod Suryabhan Pawar v/s. State of Maharashtra, 2019 (0) AIJELSC 64627 = 2019 (9) SCC 608 for the proposition that the averments made in the FIR must suggest the knowledge and intention of accused to commit the offence on the day of incident. Relevant paragraphs 8, 19, 20 and 22. Ratio: Held, allegations in FIR do not on their face indicate that promise by appellant was false, or that complainant engaged in sexual relations on basis of this promise – there is no allegation in FIR that when appellant promised to marry complainant, it was done in bad faith or with intention to deceive her – appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean promise itself was false – allegations in FIR indicate that complainant was aware that there existed obstacles to marrying appellant since 2008 – even thereafter, complainant travelled to visit and reside with appellant at his postings and allowed him to spend his weekends at her residence – allegations in FIR belie case that she was deceived by appellant’s promise of marriage – therefore, even if facts set out in complainant’s statements are accepted in totality, no offence under section 375 of IPC has occurred – as far as offence under SC/ST Act is concerned, apparent that none of the offences set out are made out – whatsapp messages were not in public view, no assault occurred, nor was appellant in such position so as to dominate will of complainant –judgment of High Court set aside- appeal allowed. With respect, this court is in full agreement with the law laid down by the Hon’ble Supreme court but in that case whatsapp messages were not in public view, no assault occurred, nor was appellant in such position so as to dominate will of complainant. In the present case, “prima facie” the offence has occurred in public place and supported by independent witness and also by medical certificate and, therefore, this judgment is also not helpful to the petitioner. In the present case, “prima facie” the offence has occurred in public place and supported by independent witness and also by medical certificate and, therefore, this judgment is also not helpful to the petitioner. (3) Kamlesh v/s. State of Rajasthan, 2019 CrLR (SC) 874 wherein the Hon’ble Supreme Court has held that the parameters of provisions under section 438 as well as parameters under section 482 of Cr PC are totally different and the application for anticipatory bail cannot be rejected merely on the ground that petition under section 482 Cr.PC has been rejected. The learned advocate Mr . Majmudar has submitted that despite the anticipatory bail application under section 438 of Cr PC is rejected by a coordinate bench, the petitioner is entitled to get relief under section 482 of Cr PC since both jurisdictions are different. Again, this court is in fully agreement with the law laid down by the Hon’ble Supreme Court. In the present case, the fact and circumstances are different. On the contrary, the bail application of the petitioner under section 438 is rejected by co-ordinate bench of present petitioner (P1) and learned advocate Mr. Mrudul Barot has placed heavy reliance upon that order. Not only that, this court has independently assessed the case of the petitioner and found that this is not a fit case to exercise discretion under section 482 Cr PC. Therefore, this authority is also not helpful to the petitioner. This court is in full agreement with the argument advanced by learned advocate Mr. N.K. Majmudar that both the jurisdictions are different i.e. the jurisdiction under section 482 of Cr. PC as well as jurisdiction under section 438 of Cr.PC. This court (Coram: A.Y. Kogje, J.) has dealt with the case of Mr. V.D. Nakrani (P1) wherein he was accused by the complainant P2 and the petition was not allowed. prima facie, in the last paragraph of the judgment it is also held that as per the request of the learned advocate, observations made in that order are only for that petition and, therefore, this court has independently assessed the complaint filed by P2 (Prakashbhai Haribhai Parmar). (4) Asharfi v/s. State of Uttar Pradesh, 2017 (0) AIJEL –SC 61430. Relevant paragraphs 5 to 8. (4) Asharfi v/s. State of Uttar Pradesh, 2017 (0) AIJEL –SC 61430. Relevant paragraphs 5 to 8. “Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – S.3(2)(v) – offence of atrocities – conviction –occurrence took place prior to amendment of provisions of S.3(2)(v) – after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge u/s.3(2)(v) of the Atrocities Act – in present case, evidence and materials on record do not show that appellant had committed rape on victim on ground that she belonged to Scheduled Caste – S.3(2)(v) of the Atrocities Act can be pressed into service only if it is proved that rape has been committed on ground that PW-3 belonged to Scheduled Caste community- in absence of evidence proving intention of appellant in committing offence upon PW-3 only because she belongs to Scheduled Caste community, conviction of appellant u/s.3(2)(v) of the Atrocities Act cannot be sustained – appeal partly allowed.: With respect, this court is in full agreement with the law laid down by the Hon’ble Supreme Court in this judgment. This was a case where conviction under section 3(2)(v) of the Atrocities Act was challenged and the appeal was partly allowed. Here, in the present case this court is travelling at pre trail stage for quashing of FIR under section 482 Cr. PC and, therefore, this authority is not helpful to the petitioner. (5) Barot Prashant Narendrabhai v/s. State of Gujarat, 2019 (0) AIJELHC-240673 (Coram: A.P. Thaker, J.) wherein the FIR was quashed. Ratio: Held on bare reading of FIR, it appears that role of present applicant is regarding calling the complainant and driving the car – it also reveals from history given by complainant before Doctor that she has not attributed any role of commission of rape by present applicant – complaint is filed at the instance of father of complainant, who is a retired ASI – this allegation has not been controverted or denied by complainant by filing any affidavit-in-reply – as per FSL report, no video clipping of commission of rape available and report is negative – present FIR filed with ulterior motive to settle the dispute regarding money transaction and it is a misuse of process of law – impugned FIR quashed and set aside – application allowed. The facts and circumstances are different in the above judgment since FIR was filed with ulterior motive to settle the dispute regarding money transaction and it is an abuse of process of law, whereas in the present case as discussed earlier, there is prima facie case and there is no abuse of the process of law. Therefore, this authority is not helpful to the petitioner. (6) Parbat Dahyabhai Rabari v/s. State of Gujarat, 2010 (0) AIJEL-HC 224346 (Coram : M.R. Shah, J. the then, now Hon’ble Judge of the Apex Court) wherein on plain reading of FIR, knowledge was not coming out, FIR was quashed. In this authority, there were no allegations against the petitioner. Further, with respect, the judgment is of the year 2010 and thereafter the Atrocities Act is amended in the year 2016. Subsequently, “knowledge” is sufficient and that on the basis of prima facie case is believed and therefore, the facts and circumstances are different than the present case. Hence, this authority is also not helpful to the petitioner. (7) Nai Natwarlal Motiram v/s. State of Gujarat, 2019(0) AIJEL-HC- 240929 (Coram: A.P. Thaker, J.) wherein the impugned order was quashed. Ratio: no any prima facie ingredients of offence under Atrocity Act – present appellant has not used any weapon in commission of offence – from medical certificate it is clear that present appellant is unable to walk without walker and physically handicapped due to traumatic para paresis – when there is no prima facie case under the Atrocity Act then powers u/s. 438 of Cr PC is available to Court – impugned order quashed and set aside – bail granted subject to conditions. In that case, this court ( Coram: A.P. Thaker, J.) has observed that there is no prima facie case and therefore, powers under section 438 Cr PC was exercised and bail was granted subject to conditions. In the present case, this court is travelling under section 482 Cr.PC. Further, the anticipatory bail of the present petitioner is already disallowed by this court on the basis of prima facie case (Coram: A. Y. Kogje, J.), therefore also, this authority is not helpful to petitioner. (8) In Union of India v/s. State of Maharashtra , AIR 2019 SC 4917 it was held that quashing is appropriate remedy despite rejection of section 438 application. (8) In Union of India v/s. State of Maharashtra , AIR 2019 SC 4917 it was held that quashing is appropriate remedy despite rejection of section 438 application. With respect, this court is in full agreement with the law laid down in this authority but the facts and circumstances in both the cases are different since in that case arrest of public servant under Atrocities Act can only be after approval of appointing authority, which is not the case here. Hence, this authority is also not helpful to the petitioner. (9) In Prithvi Raj Chauhan v/s. Union of India, 2020 (0) AIJEL-SC 65745, relevant paragraphs 10, 11 and 12. Ratio : Held provisions of anticipatory bail shall not apply to the cases under Act of 1989. With respect, this court is in full agreement with the law laid down by the Hon’ble Supreme Court but the same is with regard to applicability of section 18A of the Atrocities Act with special reference to section 438 Cr. PC, whereas in the present case, this court is travelling under section 482 of Cr.PC. Therefore, this authority is not helpful to the petitioner. (10) Anwar Ahmad Pathan v/s. State of Gujarat, 2019 (3) GLH 515 (Coram : A.S. Supehia, J), it was held that no allegation in the FIR, no injury sustained and no allegation of member of SC, ST. Therefore, the FIR was quashed. Ratio : impugned FIR is bereft of allegation that petitioner was not a member of SC or ST and complainant was intentionally insulted or intimidated by accused with intent to humiliate in a place within a public view – impugned FIR registered for offence under Atrocities Act quashed and set aside. With respect, this court is in agreement with the law laid down by this court but the facts and circumstances are different. Since in that case there was no independent witness on the contrary as discussed earlier, there is an independent witness supported by medical certificate of the victim in the present case. Therefore, this authority is not helpful to the petitioner. (11) Khuman Singh v/s. State of Madhya Pradesh, 2019 (0) AIJEL-SC- 64667 In this case, after full trial the conviction was not sustained under section 3(2)(v) of the Atrocities Act. In the present case, the facts and circumstances are different as investigation is yet to be concluded. Therefore, this authority is not helpful to the petitioner. (11) Khuman Singh v/s. State of Madhya Pradesh, 2019 (0) AIJEL-SC- 64667 In this case, after full trial the conviction was not sustained under section 3(2)(v) of the Atrocities Act. In the present case, the facts and circumstances are different as investigation is yet to be concluded. Therefore, this judgment is not helpful to the petitioner. (12). In Pravinbhai Gordhanbhai Patel v/s. State of Gujarat, 2019 (0) AIJEL-HC-240972. In that case the FIR has been lodged with oblique motive and hence is quashed and set aside. In the present case the facts and circumstances are different since the court has observed that FIR dated 7.3.2020 of P2 was not a counterblast of FIR filed by P1 and, therefore, with respect this authority is not helpful to the petitioner. (13) Criminal Appeal No.590 of 2020 order dated 10.6.2020 (Coram: A.Y. Kogje, J) wherein it was observed at paragraph 13 that the observation made by a coordinate bench was pertaining to only section 438 Cr PC. Here also as discussed earlier, this Court has assessed F.I.Rs independently. 24. As per the latest decision of Hon’ble Supreme Court in the case of D. Devaraja v/s. Owais Sabeer Hussain, Criminal Appeal No.458 of 2020 (Arising out of SLP (Crl. No.1882 of 2018) that is on 18.6.2020, it was held that where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court. In the present case, with respect, there is nothing on record to show that criminal proceedings, i.e. to say both the FIRs are prompted by malafides and instituted with ulterior motive and therefore, the powers under section 482 of Cr.PC cannot be exercised, in both F.I.Rs. 25. Per contra, learned advocate Mr. Mrudul Barot for the original complainant (P2) has placed reliance upon the order passed by this court (Coram: A.Y. Kogje, J.) in Vinubhai Devshibhai Nakrani @ V.D. Nakrani v/s. State of Gujarat in Criminal Appeal No.590 of 2020 dated 10.6.2020 wherein the learned advocate has heavily placed reliance upon paragraphs 9 and 10 which read as under:- “9. Mrudul Barot for the original complainant (P2) has placed reliance upon the order passed by this court (Coram: A.Y. Kogje, J.) in Vinubhai Devshibhai Nakrani @ V.D. Nakrani v/s. State of Gujarat in Criminal Appeal No.590 of 2020 dated 10.6.2020 wherein the learned advocate has heavily placed reliance upon paragraphs 9 and 10 which read as under:- “9. Having considered the rival submissions of the learned advocates for the respective parties and having perused the documents on record, the FIR indicates that the applicant had assaulted the complainant in public view and that there is an eyewitness, who has supported the version of the complainant. The requirement of Section 3(2) (v)(a) of the Atrocities Act is commission of offence under the Indian Penal Code which is mentioned in the schedule and the knowledge of belonging to Schedule Caste/Scheduled Tribe. In the instant case, Section 323 of the Indian Penal Code is attracted which is part of the schedule of Atrocities Act. Moreover, from the record, in the FIR registered by the applicant being C.R.III93003200293 Dated 06.03.2020, which is filed against one Shailesh Haribhai Parmar, brother of the respondent no.2 herein, the allegations leveled in the FIR are prior in point of time and the allegations made in the FIR clearly indicates that the threats issued by the Shailesh Haribhai Parmar of filing of Atrocity case against the applicant. 10. In the opinion of this Court, the eyewitness, medical certificate and the FIR filed by the applicant himself indicates the existence of offence under Section 323 of the Indian Penal Code and knowledge that the complainant is belonging to the Scheduled Caste can be prima facie arrived at.” 25.1 This court is fully in agreement with the observations made by the coordinate bench but, with respect, in last paragraph No.13, this court has held that the observations are only for application under section 438 Cr PC and, therefore, to that extent this court has not referred to the observations made by the coordinate bench and this court has independently assessed both the complaints (F.I.Rs). 26. Learned advocate Mr. Mrudul Barot has also placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Sanjeet Kumar v/s. State of Bihar reported in 2009 (0) AIJEL-SC-43797 wherein it was held at paragraphs 6, 7 and 8 as under:- “6. 26. Learned advocate Mr. Mrudul Barot has also placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Sanjeet Kumar v/s. State of Bihar reported in 2009 (0) AIJEL-SC-43797 wherein it was held at paragraphs 6, 7 and 8 as under:- “6. We find that the High Court has only referred to the respective stand of the parties and has come to an abrupt conclusion that since the complaint case was filed after filing of the police case by the present respondent no.2, it was filed with ulterior and oblique motive. That certainly is not the way to deal with an application under Section 482 of the Code. 7. The parameters where exercise of inherent power under Section 482 of the Code can be exercised either on proof of abuse of process of any Court or otherwise to secure the ends of justice have been highlighted in several cases. In State of Haryana and Ors. V. Bhajan Lal and Ors. (1992 Supp. (1) SCC 335), it was held that though it will not be possible to lay down any precise, clearly defined sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised, certain illustrative cases were indicated. They are as follows: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizabe offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (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. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. A note of caution was indicated in the following words: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 26.1 I agree with the observations made by the Hon’ble Supreme Court. In the present case also, merely within 15 minutes time gap in the so-called alleged occurrence of both the FIRs, prima facie it cannot be said that the same is a counterblast and therefore, to that extent this authority is helpful to Mr. Mrudul Barot for P2 in the first case i.e. the first quashing petition. 27. In the present case also, merely within 15 minutes time gap in the so-called alleged occurrence of both the FIRs, prima facie it cannot be said that the same is a counterblast and therefore, to that extent this authority is helpful to Mr. Mrudul Barot for P2 in the first case i.e. the first quashing petition. 27. Learned advocate Mr Barot has also placed reliance upon the judgment of this court in Snehaben Ishanbhai Gandhi v. State of Gujarat, 2019(0) AIJEL-HC-240039 wherein the petitioners were having the knowledge that the complainant was the member of Scheduled Caste and Scheduled Tribe and they were neighbours and well acquainted with him. The court held that it was not a fit case to exercise inherent jurisdiction under section 482 and dismissed the application and has observed in Paragraphs No. 10 to 15 as under: “(10) The learned Advocate for the petitioners has premised his submissions on the judgment dated 23.11.2018 in the case of (Yunus Suleman Mansuri) (supra) and the order dated 13.12.2018 in the case of (Jayantibhai Babubhai Mali) (supra) for the offence registered under section 3(2)(va) of the Atrocities Act. Section 3(2)(va) of the Atrocities Act, as substituted after the amendment dated 26.01.2016, reads as under: “3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—[(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;] ” (11) In the considered opinion of this Court, for the reasons as set out hereinafter, the view expressed in the judgment dated 23.11.2018 passed by this court in Criminal Misc. Application No.21130 of 2017 (in the case of Yunus Suleman Mansuri Suleman Mansuri) and the order dated 13.12.2018 passed by this court in Criminal Misc. Application No.27489 of 2017 (in the case of Jayantibhai Babubhai Mali), cannot be said to be a good law as far as the quashing of the offence under section 3(2)(va) of the Atrocities Act is concerned. Application No.27489 of 2017 (in the case of Jayantibhai Babubhai Mali), cannot be said to be a good law as far as the quashing of the offence under section 3(2)(va) of the Atrocities Act is concerned. (a) In both the aforesaid writ applications, the FIRs were registered in the year 2017 for the offences punishable under the IPC and Section 3(2)(va) of the Atrocities Act i.e. after the amendment in the provisions of the Atrocities Act w.e.f. 26.1.2016. (b) A perusal of the judgment dated 23.11.2018 in Criminal Misc. Application No.21130 of 2017 will clarify that the same proceeds on the basis of unamended provisions of section 3(2)(v) and section 3(2)(va) of the Atrocities Act, though the offence is alleged to have been committed in the year 2017 after the amendment in sections. Section 3(2)(v) and section 3(2)(va) of the Atrocities Act were amended w.e.f. 26.01.2016 and the expression “on the ground” was substituted to “knowing that such person”. The aforesaid judgment and the order are passed by placing reliance on the judgment dated 06.01.2016 passed by the Coordinate Bench of this Court rendered in Criminal Misc. Application No.15188 of 2014 which, in the opinion of this court, is ill-founded. In fact the Coordinate Bench has examined the unamended provisions of section 3(2)(v) and 3(2)(va) of the Atrocities Act as the offence, for which the F.I.R. was registered, was of the year 2014. (c) The Supreme Court in the case of Asharfi Versus State of Uttar Pradesh, 2018 (1) S.C.C. 742 has observed thus: “Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2) (v) of the SC/ST Prevention of Atrocities Act.” (d) The opinion in both the order and the judgment are based on the expression “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” instead of expression “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe.” Thus, the judgment dated 23.11.2018 in Criminal Misc. Application No.21130 of 2017 and order dated 13.12.2018 passed in Criminal Misc. Application No.27489 of 2017 are passed in ignorance of the amended provisions of section 3(2)(va) of the Atrocities Act, which is contrary to the observations of the judgment of the Apex Court and the amended provisions of section 3(2)(va) of the Atrocities Act. The Court was required to examine the offence under the Atrocities Act on the issue that “whether the accused was having the knowledge that the first informant was a member of Scheduled caste or Scheduled tribe”. Instead the opinion proceeds on the foundation that “whether the offence is committed on the ground that the first informant was a member of Schedule Caste and Schedule Tribe” (e) In both the aforesaid writ applications, the learned Advocates for the respective parties did not press the petition for quashing for the offences under the IPC. (f) Section 3(2)(va) of the Atrocities Act stipulates that any person whoever, not being a member of a Scheduled Caste or a Scheduled Tribe commits any offence specified in the Schedule, against a person or property, “knowing” that such person is a member of a Scheduled Caste or a Scheduled Tribe shall be punishable with such punishment as specified under the IPC for such offences and shall also be liable to fine (g) The offences under the IPC which were not pressed fell in the schedule to section 3(2) (va) of the Atrocities Act. Thus, if the offence under the IPC, which figures in the Schedule is renounced, the resultant effect of section 3(2)(va) of the Atrocities Act will come into play. The quashing of offence punishable under the IPC is sine qua non for setting aside the offence under section 3(2) (va) of the Atrocities Act. Thus, if the offence under the IPC, which figures in the Schedule is renounced, the resultant effect of section 3(2)(va) of the Atrocities Act will come into play. The quashing of offence punishable under the IPC is sine qua non for setting aside the offence under section 3(2) (va) of the Atrocities Act. Non-pressing of the quashing petition for the offences prescribed in the schedule will not dilute the effect of the offence under section 3(2) (va) of the Atrocities Act (12) The Supreme Court in the case of M.P.Rural Road Development Authority Vs. L.G. Chaudhary Engineers And Cont., 2012 (3) S.C.C. 495 while considering the principle of per incuriam has observed thus: The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young V/s. Bristol Aeroplane Company, Limited reported in 1944 (1) K.B. 718. 33. Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered `per incuriam'. The principles are: "Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam." 34 xxx xxx xxx 35 xxx xxx xxx 36 xxx xxx xxx 37 The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. V/s. Wakeling & another [(1955) 2 QB 379 at page 406]. Cases of this description are examples of decisions given per incuriam." 34 xxx xxx xxx 35 xxx xxx xxx 36 xxx xxx xxx 37 The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. V/s. Wakeling & another [(1955) 2 QB 379 at page 406]. The principle has been stated as followed: "...As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong......." 38 xxx xxx xxx 39 In the case of Municipal Corporation of Delhi V/s. Gurnam Kaur reported in (1989) 1 SCC 101 , a three Judge Bench of this Court explained this principle of per incuriam very elaborately in paragraph 11 at page 110 of the report and in explaining the principle of per incuriam the learned Judges held: "......A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute...... " (13) Thus, both the decisions vide judgment dated 23.11.2018 in the case of (Yunus Suleman Mansuri) (supra) and the order dated 13.12.2018 in the case of (Jayantibhai Babubhai Mali) (supra) are given per incuriam and cannot be said to be a good law with reference to the quashing of the offence punishable under section 3(2)(va) of the Atrocities Act since the amended provisions of sections 3(2)(v) and 3(2) (va) of the Atrocities Act was not pointed out to the Court and the decisions are premised on the unamended provisions of the sections of the Atrocities Act. (14) In the present case, it is not in dispute that the F.I.R. has been registered on 06.11.2017 for the alleged incident occurred on the night of 05.11.2017. Indubitably, the same will be governed by the amended provision of section 3(2)(va) of the Atrocities Act, wherein the expression “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” instead of expression “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe”. Indubitably, the same will be governed by the amended provision of section 3(2)(va) of the Atrocities Act, wherein the expression “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” instead of expression “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe”. The Apex Court in the case of Asharfi Versus State of Uttar Pradesh (supra) has held that “Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2) (v) of the SC/ST Prevention of Atrocities Act.” The facts of the present case suggest that the petitioners were having the knowledge that the first informant was a member of the schedule caste and schedule tribe since they were his neighbours and are well acquainted with him and his family members. Hence, the offence punishable under section 3(2) (va) of the Atrocities Act registered against the petitioners does not call for any interference in exercise of the powers under section 482 of the Cr.PC. (15) Emphasis has also been laid down by the petitioners that no offence punishable under sections 143, 147, 394, 323, 504, 506(2) of the IPC are established against the petitioners. prima facie the contents of the impugned F.I.R. expose the occurrence of the incident. There are cross-FIR filed by petitioner No.1. Further investigation also substantiates the alleged incident. At this stage, it will be hazardous to presume that no incident has occurred.” 27.1 With respect, I am in full agreement with the judgment. In the present case also, on the basis of police papers and other documents, prima facie, it transpires that the complainant and the accused person were knowing each other and the case of IPC was also made out on the basis of eyewitness and medical certificate. Therefore, this is not a fit case to exercise the inherent jurisdiction under section 482 of Cr.PC. 28. Learned advocate Mr. Mrudul Barot has vehemently submitted that Mr. V.D. Nakrani (P1) has falsely filed the complaint against Mr. Prakash Haribhai Parmar, therefore, it is required to be quashed. This court has discussed both the FIRs at the initial stage of reasoning of this order. The Investigating Officer who is in the rank of Dy. 28. Learned advocate Mr. Mrudul Barot has vehemently submitted that Mr. V.D. Nakrani (P1) has falsely filed the complaint against Mr. Prakash Haribhai Parmar, therefore, it is required to be quashed. This court has discussed both the FIRs at the initial stage of reasoning of this order. The Investigating Officer who is in the rank of Dy. SP Class-I Officer has made a preliminary inquiry and submitted the report that there is no evidence in the CCTV footage to show that both the FIRs are false. Therefore, in the humble view of this court the first FIR dated 6.3.2020, at this juncture, also cannot be said to be false and the investigation must be carried out. Therefore, this court is not of the view to set aside the first FIR which is upon Shaileshbhai Haribhai Parmar, wherein Mr. V.D. Nakrani (P1) is the complainant, as well as another FIR which is by Prakashbhai Haribhai Parmar (P2). It is made clear that pursuant to the police papers also, it transpires that Mr Shaileshbhai Haribhai Parmar is arrested on the basis of the complaint filed against him but since March 2020 till the report by the Investigating Agency Mr. V.D. Nakrani (P1) is absconding and therefore on such ground, as discussed earlier, in fleri this is not a fit case to exercise discretion vested under section 482 to quash both the FIRs. At this stage it will be hazardous to presume that no incidents have occurred. Therefore, both the petitions are devoid of merits and resultantly both the petitions are dismissed. Notice is discharged. 29. After pronouncement of the judgment, learned APP has requested that as both the petitions have been dismissed, the investigation in both the petitions may proceed in accordance with law. 30. Request of the learned APP is granted. The Investigating Officer shall investigate both the matters in accordance with law. 31. Registry is directed to keep the copy of this judgment in Criminal Miscellaneous Application No.7981 of 2020.