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2021 DIGILAW 776 (GUJ)

THAKOR JAGAJI CHENAJI v. STATE OF GUJARAT

2021-09-03

B.N.KARIA

body2021
ORDER : Copies of five different complaints filed by the respondent No.2 are taken on record. 1. Rule in Special Criminal Application No. 64 of 2016 & Criminal Misc. Application No. 22354 of 2015. Mr.Valimohammed Pathan, learned advocate waives service of notice of rule for and on behalf of respondent No.2 and Mr. H.K.Patel, learned APP waives service of notice of rule for and on behalf of the respondent -State in both these applications. 2. These group of three petitions arising from the common criminal complaint lodged before the Mehsana Taluka Police Station being C.R.No.I-268 of 2015 filed by the respondent No.2- Sanjaykumar Jethabhai Parmar against present applicants-accused persons, who have approached this Court under Articles 226 and 227 of the Constitution of India and under Articles 14 and 16 r/w. Section 482 of Code of Criminal Procedure with a request to quash and set aside the impugned complaint. 3. Learned advocate appearing for the respective applicants as well as learned advocate appearing for the respondent No.2 and learned APP for the respondent-State have requested to dispose of these three petitions with common order, as three petitions are arising from the same FIR. Hence, the common order is passed. 4. Heard Mr.Yogendra Thakore, learned advocate for the applicant in Special Criminal Application No. 64 of 2016; Mr. K.S.Kotai, learned advocate for the applicant in Cri. Misc. Application No. 22354 of 2015; Mr.Jigar Gadhavi, learned advocate for the applicant in Cri. Misc. Application No. 2574 of 2017 and Mr.Valimohammed Pathan for respondent No.2 and Mr. H.K.Patel, learned APP for the respondent -State in these petitions. 5. It is submitted by Mr. Yogendra Thakore, learned advocate appearing for the applicant in Special Criminal Application No. 64 of 2016 that completely bogus FIR was filed against the present applicant. It is submitted that the applicant namely Thakore Jagaji Chenaji, on 6th November, 2015, was present in the Court premises of Mehsana District Court and he had also given an application before the learned Judicial Magistrate First Class, Mehsana, pursuant to the notice issued against him being surety of the accused namely Prajapati Gunvantbhai in a criminal case giving assurance that the accused will remain present before the Court. Learned advocate has referred pursis produced at annexure “B” dated 6th November, 2015. It is further submitted that the applicant is falsely implicated in the said incident with malafide intention. Learned advocate has referred pursis produced at annexure “B” dated 6th November, 2015. It is further submitted that the applicant is falsely implicated in the said incident with malafide intention. It is further submitted that in the entire complaint, it is nowhere stated that the applicant was not a member of Schedule Caste or Schedule tribe and he intentionally insulted or with intent to humiliate the complainant. It is further submitted that when the basic ingredients of the offence are missing in the complaint, the continuation of the complaint would totally be unjustified leading to abuse of process of law. It is further submitted that Section 506(2) of the Indian Penal Code would not attract in the present case, as there was no criminal intimidation on the part of the applicant. The essential ingredients to constitute an offence, as has been defined under Section 503 of Indian Penal Code and Section 506 of Indian Penal Code are absent in the complaint itself. It is further submitted that the complainant is a habitual of lodging such type of complaint against members who are not from schedule caste and schedule tribe. He has produced five different complaints registered against different persons by the same complainant under the provisions of Atrocities Act. It is further submitted that respondent No.2 has misused process of law and false case was registered against the applicant. In support of his arguments, he has referred the order passed in Special Criminal Application No. 1785 of 2017 dated 4th August 2021 and requested to quash and set aside the impugned complaint. 6 Learned advocate Mr.Jigar Gadhavi appearing for the applicant in Criminal Misc. Application No. 2574 of 2017 has submitted in his arguments that in the complaint lodged against the present applicant, it is nowhere averred that any offence is made out against the present applicant. It is further submitted that the applicant was not present at the place of offence at the relevant point of time. That, the complainant is indulged in the activities of blackmailing the persons and extorting money out of the said activities. That, respondent No.2 original complainant has registered various FIRs invoking the provisions of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)Act, 1989 against the different persons including the present applicant. That, the complainant is indulged in the activities of blackmailing the persons and extorting money out of the said activities. That, respondent No.2 original complainant has registered various FIRs invoking the provisions of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)Act, 1989 against the different persons including the present applicant. Learned advocate has referred complaint filed by respondent No.2 against another accused persons registered with Visnagar Taluka Police Station being II-CR No.1 of 2011 dated 10th January, 2011 under Section 504, 114 of IPC as well as Section 3(1)(x) of the Atrocity Act. He has further drawn attention of this Court towards settlement of his aforesaid complaint before this Court in Criminal Misc. Application (For quashing & setting aside FIR) No. 1049 of 2013 passed on 14th October, 2013. That, respondent No.2-original complainant in the aforesaid FIR was present before this Court and stated that compromise has been arrived at between the parties and he has no objection if FIR is quashed. That, conduct of the complainant and facts that after registering the false FIR, he has settled the dispute. That, even if the allegations in the FIR are seen, no offence is made out against the present applicant and story shown in the FIR is completely false, vexatious and vague. In support of his arguments, learned advocate appearing for the applicant has relied upon the decision rendered in case of Jivanbhai Devjibhai Bhogayata Vs. Mohanbhai Purshottam Mokariya Brahmin reported in 2015 (0) AIJEL-HC-232377 wherein, it is held as under :- “15. The above takes me to consider whether any case is made out so far as the offence undertion 506(2) of the IPC is concerned. Section 506 reads as under:- "S. 506. 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; 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. 16. 16. The essential ingredients -- The offence of criminal intimidation has been defined under Section 503 I.P.C. and Section 506 I.P.C. provides punishment for it. Sec.503 reads as under:- "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 threats, commits criminal intimidation. Explanation: - A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section. An offence under Section 503 has following essentials:- 1. Threatening a person with any injury; (i) to his person, reputation or property; or (ii) to the person, or reputation of any one in whom that person is interested. 2. The threat must be with intent; (i) to cause alarm to that person; or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. 17. A bare perusal of Section 506 of the I.P.C. makes it clear that a part of it relates to a criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. Let me assume for the moment, what has been alleged in the complaint is true, even then, mere threats given by the accused, not with an intention to cause alarm to the complainant, would not constitute an offence of criminal intimidation. 7. That, there is nothing indicate in the FIR that any criminal act is committed by the present applicant, as there is no specific role constituting any offence by the applicant. 7. That, there is nothing indicate in the FIR that any criminal act is committed by the present applicant, as there is no specific role constituting any offence by the applicant. Considering the entire averments made in the complaint, none of the ingredients of the offence under Section 143, 147, 148, 149, 504 and 506(2) of Indian Penal Code and u/s. 3(1)(10) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act as well as u/s. 135 of the Gujarat Police Act is made out. Hence, it was requested by learned advocate for the applicant to quash and set aside the impugned complaint. 8. Learned advocate for the applicant in Criminal Misc. Application No. 22354 of 2014 has also supported the arguments advanced by learned advocate appearing for the applicant in another two connected matters i.e. Special Criminal Application No.64 of 2016 & Criminal Misc. Application No. 2574 of 2017 and submitted that at the time of alleged offence, the applicant was not present at the place of offence. As per the averments made in the FIR, respondent No.2 was working as Sarpanch of the Heduva village and was engaged with the construction work of the road at that time original accused No.4 came and some abuse words were spoken to the respondent No.2 That, from the FIR itself, no allegations are made against the present applicant as he was not present at the time of incident. That, looking to the entire FIR no offence is made out against the present applicant and therefore, it was requested by him to quash and set aside the impugned complaint registered against him. 9. Learned advocate for the respondent No.2 has vehemently opposed the arguments advanced by learned advocate appearing for the applicant and submitted that however, respondent No.2 was expired during the pendency of these petitions, the prayer made by the applicant cannot be allowed by this Court by quashing and setting aside the impugned complaint. That, he tried to bring on record the legal heirs of the respondent No.2 but, he was not succeeded. He has referred the contents of the complaint and argued that at the time of committing an offence, the applicants intentionally insulted, humiliated and harassed the complainant by abusing language and threat him to commit murder. That, he tried to bring on record the legal heirs of the respondent No.2 but, he was not succeeded. He has referred the contents of the complaint and argued that at the time of committing an offence, the applicants intentionally insulted, humiliated and harassed the complainant by abusing language and threat him to commit murder. It is further submitted that police control room was immediately informed and after arrival of the police, sitting in the police vehicle, immediately FIR was lodged by the complainant. That, labourers were working at the place of offence and other members of the gram panchayat namely Vikramsinh Krupaji was also accompanied with the complainant. It is further submitted that prima facie offence is clearly committed by the present applicants as they are arraigned as an accused from the beginning by the complainant in his complaint dated 6th November, 2015. It is further submitted that without investigation and recording evidence of the prosecution witness, this Court may not exercise the powers under Section 482 of Cr.P.C. Hence, it was requested by learned advocate appearing for the respondent No.2 to dismiss the present applications. 10. Learned APP appearing for the respondent No.1-State has supported the arguments advanced by learned advocate for the respondent No.2 and submitted that it was not first incident of committing offence. That, genuine complaint was lodged by the respondent No.2 referring previous incident also of giving threat to the complainant and disturbing him in construction work of the road by the present applicants. Referring Section 8 of the Atrocities Act, it is argued that when number of persons are committing offence under the Atrocity Act, if it is proved that the offence was committed was a sequel to existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. Learned APP has further referred the contents of the complaint filed by the respondent No.2 and submitted that as complainant was engaged in construction work of road, in previous occasion also, he was threatened by the present applicants and therefore, he had also approached SC-ST cell previous in time, That, presumption under Section 8 of the Act requires to be drawn against the present applicants under the Act. It is further submitted that investigation is still required however, complainant is expired. It is further submitted that investigation is still required however, complainant is expired. At this juncture, this Court may not exercise the powers by quashing and setting aside the impugned complaint under Section 482 of Cr.P.C. Hence, it was requested by learned APP for the respondent - State to dismiss the present applications. 11. Having heard learned advocates appearing for the respective applicants as well as learned advocate for the respondent No.2 and learned APP for the respondent State, it appears that on 1st December, 2015, this Court had issued notice to the respondents with the permission to proceed further investigation. However, it was ordered not to take coercive steps against the present applicants. It appears that on 6th November, 2015, impugned complaint was filed by the respondent No.2 before the Mehsana Taluka Police Station alleging that one Madhubhai Akhani who is serving in ONGC Ltd. was creating hurdles while making road as well as Madhubhai Akhani through some persons also threatened him. It is further alleged that at about 14:10 to 14:30 on 6th November, 2015 Madhubhai Akhani along with one Gordhanbhai came there and asked to stop the construction of road as the said land belongs to their ownership. Pursuant to the said issue, the complainant had informed Madhubhai Akhani to bring stay with regard to the same issue. At the same time, the applicants along with Kanjibhai Mavjibhai Desai who was also one of the applicants sent 7-8 persons with stick for beating complainant. As per averments made in the complaint that those persons had abused the complainant by caste and in this manner, the aforesaid complaint came to be filed against the present applicants. From the bare reading of the complaint lodged by the respondent No.2, it appears that another applicants had talked with the complainant at about 14:10 to 14:30 on 6th November, 2015. From the bare reading of the complaint, prima facie, it appears that none of the applicants were present at the time of committing the alleged offence. As per say of the complainant in his complaint, under the instructions of Madhubhai Akhani and Kanjibhai Mavjibhai Desai as well as Chenaji Thakore, 7-8 unknown persons were sent to assault the complainant with wooden stick and they abused the complainant and gave threat to commit murder. As per say of the complainant in his complaint, under the instructions of Madhubhai Akhani and Kanjibhai Mavjibhai Desai as well as Chenaji Thakore, 7-8 unknown persons were sent to assault the complainant with wooden stick and they abused the complainant and gave threat to commit murder. It appears that present complainant has never alleged in the complaint that any of the applicants have insulted or humiliated with intent to commit an offence as alleged by the prosecution. Complainant had immediately rushed to his house and informed the control room. It further appears that police has reached at the house of the complainant and complainant himself went to police station by sitting in police vehicle. If we consider Section 3(1)(x) of the Act, which provides as under :- {x} intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view is absolutely necessary. 12. If we consider the entire complaint, there is no iota in the avements made by the complainant that any words were used by the applicants intentionally insulting him or intimidated him with intent to humiliate having knowledge that complainant was member of a Scheduled Caste or a Scheduled Tribe in any place. It is no where stated in the complaint that the applicants were not member of SC/ST community and complainant was intentionally insulted or intimidated by the accused persons with intent to humiliate him in any place within public view. Here, also to attract the provision of Section 3(1)(x) of the Atrocities Act, it should be specifically incorporated by the complainant in his complaint that the applicants had insulted and intimidated him with an intent to humiliate being member of SC/ST in any place within public view. He must incorporate in his complaint that the applicants abused as he being member of SC/ST but, here, the complaint is completely silent to attract Section 3(1)(x) of the Atrocities Act. As there is no allegations made in the complaint that any of the applicants intentionally insulted or intimidated with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, at this juncture, this Court would like to refer the judgement rendered in case of Hitesh Verma Vs. State of Uttarakhand and Anr. reported in (2020) 10 SCC 710 wherein, is observed as under:- “22. State of Uttarakhand and Anr. reported in (2020) 10 SCC 710 wherein, is observed as under:- “22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law. 23. This Court in a judgment reported as Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr. held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under: “9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.” 24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the chargesheet to that extent is quashed. The appeal is disposed of in the above terms. 13. The same view was taken in similar matter by this Court in Special Criminal Application No. 1785 of 2017 vide order dated 4.8.2021. Further it appears from the different complaint lodged by respondent No.2 under the provision of Atrocities Act, that complainant is in habit of lodging such type of complaints against different persons. After registering the complaint under the provisions of Act, he is settling his disputes with the accused persons which transpires from the order passed in Criminal Misc. Application [For quashing & set aside FIR/ORDER] No. 15049 of 2013 dated 24th October, 2013 wherein, the same provision of Section 3(1)(x) of the Atrocities Act was applied by him as well as Section 504 and 114 of IPC and thereafter, he settled the disputes with the accused persons and complaint was quashed by this Court. 14. Hence, these applications are allowed. The impugned complaint i.e CR No.I-268 of 2015 registered with Mehsana Taluka Police Station for the offence punishable under Sections 143, 147, 148, 149, 504, 506(2) of Indian Penal Code as well as Section 3(1)(x) of the Atrocities Act and Section 135 of the G.P.Act and consequential proceedings thereof are hereby quashed and set aside qua the present applicants. Rule is made absolute to the aforesaid extent.