Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1059 (GUJ)

Kanjibhai Randhirbhai Parmar v. State Of Gujarat

2024-04-30

DIVYESH A.JOSHI

body2024
JUDGMENT : 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. By this application under section 482 of the Code of Criminal Procedure,1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.II-153 OF 2016 registered before the Keshod Police Station, Junagadh for the offence punishable under sections 3(1)(R )(S), 3(2)(v)(a) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 504 of the Indian Penal Code. 3. Learned advocate Mr. Virat Popat appearing for the applicant submits that the applicant is the principal of the N.P. Arts & Commerce College, Keshod. It is alleged in the complaint that on the date of the incident, as the sister of the complainant, namely, Urmilaben Jamnabhai Parmar was not found in the examination hall, somebody from the college phoned the father of the complainant and informed him about the non-availability of his daughter who in turn informed about the same to the complainant. Therefore, with a view to check the veracity of the said information, the complainant went to the said college at around 3:15 p.m. and straightway went to the chamber of the applicant and requested the applicant to show him the C.C.T.V footage of the examination hall as he wanted to know whether his sister was there in the room or not. It is also alleged that thereafter the applicant asked him about his caste whereupon the complainant informed that he belongs to the Scheduled Caste, and upon hearing the same, the applicant got enraged and started abusing the complainant against his caste. Learned advocate Mr. Popat further submits that as soon as the impugned FIR came to be registered against the applicant, he immediately approached this Court by way of filing the present application wherein then Coordinate Bench of this Court while issuing notice, protected the applicant vide order dated 23.11.2018 by directing the investigating officer not to take any coercive steps against the applicant and, therefore, charge-sheet has yet not been filed against the applicant. He also submits that the present applicant has also filed a complaint against the complainant herein wherein the applicant herein has stated that on the date of the incident, the complainant herein was standing in the lobby of the college, and at that point of time, the applicant herein was passing through the lobby and asked the complainant herein as to why he was standing there, upon which, the complainant herein told the applicant that he is being informed that his sister is not found available in the examination hall and, therefore, he has come to the college to check the C.C.T.V. footage of the examination hall whereupon the applicant told him that as the examination is going on, it is not possible for him to show the C.C.T.V. footages of the hall right now, but he would come at 5:00 p.m. However, the complainant did not agree and got angry and started abusing the applicant herein saying that he will not leave the campus, due to which, some scuffle took place between them. He also submits that in the cross-complaint also, charge-sheet has yet not been filed and the matter is still at the stage of investigation. Learned advocate Mr. Popat submits that at the time of filing the impugned FIR, the complainant has not given the name of any independent person who had witnessed the incident. Learned advocate Mr. Popat also submits that sub- clauses (1) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, sub-clause (x) is the only clause where even offending utterances have been made punishable. The legislature required intention as an essential ingredient for the offence of insult, intimidation and humiliation of a member of the Scheduled Castes or Scheduled Tribes in any place within public view. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which surpasses or evades the mischief and advances the object of the Act has to be adopted. He further submits that the ‘public view’ in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. He further submits that the ‘public view’ in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded. 4. Learned advocate Mr. Popat submits that as per the aforesaid principles of law, none of the ingredients to constitute the offence under the provisions of the S.C.S.T Act are made out as the entire incident, as per the case of the prosecution, took place in the chamber of the present applicant and nobody had witnessed the incident in question, which does not fall under the domain of public place. He further submits that there are cross-complaints filed by both the sides which insinuates that something had happened between them, however, it is an admitted position of fact that at the time of incident, the complainant was not known to the applicant and, therefore, by no stretch of imagination, it can be said that the applicant accused was well aware about the caste of the complainant. Learned advocate Mr. Popat submits that the impugned FIR seems to have been filed after legal advise from the expert with regard to as to how charges of atrocities should be made against the applicant and, therefore, the same is nothing but a sheer abuse of process of law filed with a mala fide intention to wreck vengeance against the applicant, and as such, the impugned FIR deserves to be quashed. 5. When the matter was called out in the first sessions, learned advocate Ms. Tejal Shah appearing for the respondent No.2-original complainant was not present and, therefore, with a view to provide an opportunity of hearing to the counsel of the respondent No.2, the matter was kept in the second sessions. However, in the second session also, learned advocate Ms. Shah has not remained present and, therefore, this Court has proceeded to hear the matter in the absence of learned counsel for the respondent No.2. 6. Learned APP Mr. Hardik Soni has vehemently opposed the present application and submits that a bare perusal of the first information report clearly shows that the applicant is actively involved in the commission of the crime. Learned APP Mr. 6. Learned APP Mr. Hardik Soni has vehemently opposed the present application and submits that a bare perusal of the first information report clearly shows that the applicant is actively involved in the commission of the crime. Learned APP Mr. Soni further submits that immediately after the registration of the FIR, the applicant approached this Court, and then Coordinate Bench of this Court protected the applicant but the investigating was ordered to be carried out, and during the course of investigation, statements of certain witnesses who were present at the place of occurrences were recorded which have also been produced on record by the learned APP wherein they have stated that some scuffle took place in the chamber of the principal, but they did not hear any abusive or derogatory language being used by the applicant. Learned AAPP Mr. Soni also submits that the proceedings are at the pre- mature stage and prima facie involvement of the applicant is clearly found out from the papers available on record. Therefore, the present application filed by the applicant may not be entertained and deserves to be dismissed. 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should quash the complaint. 8. I am conscious of the restrictions to be exercised by the Court of Law while considering the petition under Section 482 of the Code of Criminal Procedure. However, in the matter on hand, I find that it is a clear cut case of abuse of process of law. The records prima facie reveal that it all started when the sister of the complainant was found absent in the examination hall of the college. Therefore, somebody from the college informed the complainant about the same and, therefore, the complainant immediately rushed to the college. It also appears from the record that there are cross complaints filed by both the sides. Be that as it may, The allegations levelled by the complainant against the applicant-accused are under the provisions of the Atrocities Act. It is alleged that when the complainant asked the applicant-accused to show the C.C.T.V footage of the examination hall, the applicant got enraged and asked the complainant about his caste and after knowing that the complainant belongs to Scheduled Caste, the applicant-accused started hurling abuses against his caste. It is alleged that when the complainant asked the applicant-accused to show the C.C.T.V footage of the examination hall, the applicant got enraged and asked the complainant about his caste and after knowing that the complainant belongs to Scheduled Caste, the applicant-accused started hurling abuses against his caste. It is an admitted position of fact that the entire incident in question took place in the chamber of the applicant-accuse, and as per the settled proposition of law, to constitute an offence under the provisions of the Atrocities Act, the abusive utterance must be at a ‘public place’ and that too witnessed by some independent persons. Here in the case on hand, there is no independent witness cited by the complainant in the entire body of the complaint in support of his claim. Further, as per the case put up by the learned APP, statement of some independents witnesses have been recorded, however, they have not stated anything as regards any derogatory words being used by the applicant against the caste of the complainant. They have stated that in their statements that some altercation took place in the chamber of the applicant, but have remained completely silent about any atrocity being meted out to the complainant by the applicant. It is a trite law and has been reiterated time and again by the various High Courts as well as the Supreme Court that the basic ingredient to make out a case under the provisions of the Atrocities Act is the utterance, if any, made by the applicant “in any place within public view”, which is missing the present case. The other allegations are under the provisions of Section 504 of the IPC. 9. In the aforesaid context, I may quote, with profit, the observations made by the Hon’ble Apex Court in the case of Ramesh Chandra Vaishya vs. State of Uttar Pradesh & Anr., reported in 2023 Live Law (SC) 469, which are as follows; “14. We have heard the parties and perused the judgment and order of the High Court together with the materials on record. 15. Section 3(1)(x) of the SC/ST Act, prior to its amendment notified vide S.O. 152(E) dated 18th January, 2016, read as follows: “3. Punishments for offences of atrocities. We have heard the parties and perused the judgment and order of the High Court together with the materials on record. 15. Section 3(1)(x) of the SC/ST Act, prior to its amendment notified vide S.O. 152(E) dated 18th January, 2016, read as follows: “3. Punishments for offences of atrocities. — (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, — *** (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; ***** 16. The first F.I.R., registered at the instance of the complainant, is silent about the place of occurrence and who, being a member of the public, was present when the appellant is alleged to have hurled caste related abuses at the complainant. However, on a reading of the second F.I.R. registered at the behest of the appellant, it appears that the incident took place at the house of the appellant. 17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge-sheet dated 21st January, 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ ST Act. These three witnesses are none other than the complainant, his wife and their son. Neither the first F.I.R. nor the charge-sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any, made by the appellant were not “in any place within public view”, the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present. 18. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present. 18. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to bring it within the ambit of section 3(1)(x) of the SC/ST Act. We have noted from the first F.I.R. as well as the charge- sheet that the same makes no reference to the utterances of the appellant during the course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Since section 18 of the SC/ST Act bars invocation of the court’s jurisdiction under section 438, Cr.PC and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the F.I.R. (which is not required to be an encyclopaedia of all facts and events), but at least in the charge-sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge sheet makes out a case of an offence under the SC/ST Act having been committed for forming a proper opinion in the conspectus of the situation before it, prior to taking cognisance of the offence. Even for the limited test that has to be applied in a case of the present nature, the charge-sheet dated 21st January, 2016 does not make out any case of an offence having been committed by the appellant under section 3(1)(x) warranting him to stand a trial. 19. Paragraphs 15 and 16 of the decision in Hitesh Verma (supra) cited by Ms. Shukla can be pressed in aid to support the view that we have taken above. 20. The second question that would engage our attention is, whether the criminal proceedings against the appellant should be allowed to be taken further in view of the appellant facing accusation of offences punishable under sections 323 and 504, IPC. ***** 22. What remains is section 504, IPC. In Fiona Shrikhande and Anr. vs. State of Maharashtra, (2013) 14 SCC 44 , this Court had the occasion to hold that: “13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.” 23. Based on the facts and circumstances of the case, we have little hesitation in holding that even though the appellant might have abused the complainant but such abuse by itself and without anything more does not warrant subjecting the appellant to face a trial, particularly in the clear absence of the ingredient of intentional insult of such a degree that it could provoke a person to break public peace or commit any other offence . 24. We record that the High Court misdirected itself in failing to appreciate the challenge to the criminal proceedings including the charge-sheet in the proper perspective and occasioned a grave failure of justice in rejecting such challenge. 25. For the reasons aforesaid, we unhesitatingly hold that it would be an abuse of the process of law to allow continuation of Criminal Case No.376 of 2016. While setting aside the impugned judgment and order of the High Court, we also quash Criminal Case No.376 of 2016. 26. Consequently, this appeal succeeds. Parties shall, however, bear their own costs” 10. For the reasons aforesaid, we unhesitatingly hold that it would be an abuse of the process of law to allow continuation of Criminal Case No.376 of 2016. While setting aside the impugned judgment and order of the High Court, we also quash Criminal Case No.376 of 2016. 26. Consequently, this appeal succeeds. Parties shall, however, bear their own costs” 10. At this stage, I would also like to refer to and rely upon the very recent pronouncement of the Hon’ble Supreme Court in the case of Mahmood Ali vs. State of U.P. & Ors., wherein speaking for the Bench, His Lordship (J.B. Pardiwala, J.) elaborated on the types of materials the High Court can assess to quash an FIR. The Court held:- “10. We are of the view that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed. 11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604 . The parameters are:- “(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 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 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. (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. (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.” We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra). 12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. 13. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522 , a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:- “5. …Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6) (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death….. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death….. (Emphasis supplied)” 11. In view of the principles laid down by the Hon’ble Apex Court in the aforesaid judgments, I am of the opinion that the FIR does not make out any case of an offence having been committed by the applicant either under the provisions of the Atrocities Act or the Indian Penal Code and, therefore, now no fruitful purpose would be served to ask the applicant-accused to face the trial. 12. In the result, this application succeeds and is hereby allowed. The first information report being C.R. No.II-153 OF 2016 registered before the Keshod Police Station, Junagadh is hereby ordered to be quashed. All consequential proceedings arising from the same also stands terminated. Rule is made absolute. Direct service is permitted.