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2024 DIGILAW 220 (GUJ)

Narharibhai Bhagwanbhai Patel v. State Of Gujarat

2024-01-30

M.K.THAKKER

body2024
JUDGMENT : 1. Present appeal is filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the Atrocities Act’ hereinafter) challenging the judgment and order passed below Exhibit 12 in Atrocity Case No.05 of 2022 by the learned Special Judge (Atrocities) Chhota Udepur at Bodeli, dated 20.09.2023, whereby the application preferred by the present applicant-original accused No.8 seeking discharge was partly rejected. 2. It is the case of the applicant that one FIR came to be lodged with the Sankheda Police Station, District Chhota Udepur being C.R.No. 11184009220776 of 2022, for the offences punishable under Sections 379(A), 143, 323, 147 and 149 of the Indian Penal Code, 1860 and Sections 3(1)(R), 3(2)(Va) of the Atrocities Act. It is alleged in the FIR that 16 accused who were named in the FIR have by creating the unlawful assembly assaulted on the complainant, his wife and son as well as one witness Ajaysinh Raj Solanki and had stolen the chain. 3. On setting criminal law in motion, the investigation was carried out and the FIR was culminated into the chargesheet, which was filed before the Competent Court for the aforesaid sections. 4.On filing the chargesheet, the application under Section 227 of the Code of Criminal Procedure, 1973 was preferred below Exhibit 12 by the present applicant, who is accused No.8 seeking the discharge from the alleged offences. Learned trial Court, has partly allowed the aforesaid application and discharged the applicant from the Sections 3(1)(R) of the Atrocities Act and rejected the application qua the other offences. Being aggrieved and dissatisfied with the aforesaid judgment and order dated 20.09.2023, present appeal is preferred. 5. Heard the learned advocate Mr.A.V.Nair for the appellant, learned APP Ms.Monali Bhatt for respondent No.1State and learned advocate Mr.Vijay Nangesh for the respondent No.2. 6. Learned advocate Mr.Nair submits that there was no any evidence, which is collected showing the involvement of the present applicant. It is the case of the prosecution that the applicant was standing along with the other accused, but that would not attract the provisions of Section 149 of the Code of Criminal Procedure, 1973. Learned advocate Mr.Nair submits that when the complainant reached to the place of offence, the scuffle was already started, therefore, it cannot be said that, with a view to that, unlawful assembly was form with common object. 6.1. Learned advocate Mr.Nair submits that when the complainant reached to the place of offence, the scuffle was already started, therefore, it cannot be said that, with a view to that, unlawful assembly was form with common object. 6.1. Learned advocate Mr.Nair submits that even there is no overt act attributed to the present applicant and only allegation made in the FIR is that he was present along with the other accused and instigated to the other accused by saying “maaro...maaro”. Learned advocate Mr.Nair submits that even the ingredients of the Atrocities Act are also not satisfied as there was no any intention on the part of the applicant to commit an offence with a view that complainant is belonging to the particular caste. 6.2. Learned advocate Mr.Nair has relied on the decisions rendered by the Apex Court in case of Vishnu Kumar Shukla and others vs. State of Uttar Pradsh and other (Criminal Appeal No.3618 of 2018), Shashikant Sharma and ors vs. State of Uttar Pradesh and anr. (Arising from Criminal Appeal No.5323 of 2023), and in the case of Tribhuvan Nath vs. State, (Delhi) rendered by the High Court of Delhi and submits that there was no any iota of evidence collected during investigation showing the active participation of the applicant in the offence. By making the aforesaid submissions, the learned advocate Mr.Nair prays to allow this application and discharge the applicant accused from the charges. 7. Considering the submissions made by the learned advocate Mr.Nair for the applicant and the chargesheet papers which is the part of the compilation, this Court deems it fit to consider allegation made in the FIR, which is as under: 7.1. It is the case of the complainant, namely, Manojbhai @ Manojbhai Nathabhai Solanki, who is the husband of Jyotiben Manojbhai Solanki, Sarpanch of Kavitha Gram Panchayat alleging that at around 05:30p.m. when he was returning after dropping the grandson Yaksh at his house, on the way one Mohansinh Ramsinh Solanki had shouted by calling his name and instructed to stop there and on stopping, it was conveyed that his son came from Vadodara and his son wants to talk with the complainant and therefore, he was asked to reach at the place of offence. When he reached, the family members of Mohansinh were already present there and there was hot altercation which was going between the family members. When he reached, the family members of Mohansinh were already present there and there was hot altercation which was going between the family members. The son of Mohansinh had asked to the complainant that in the process to remove the encroachment, whether the notice was given at the instance of the father, namely, Mohansinh, the complainant had denied the same and conveyed that there was no any connection of Mohansinh with the notice. After replying he was about to left the place, when he reached near the motorcycle one Sardarsinh Fatehsinh RajSolanki instructed all lady members, who were gathered there to start assaulting on the complainant. All the lady members have inflicted the kicks blows to the complainant, on raising the alarm, wife and son of the complainant were reached to the place of offence. Thereafter, all the accused persons, who are named in the FIR including the present applicant has started assaulting to the complainant and his family members and thereby the injuries were caused by the accused, who are named in the FIR. During this offence, the chain which was worn by the applicant was snatched and shirt and the cloths were torn, earrings were also lost during the scuffle which was worn by the wife of the complainant. On intervention of the other village peoples, they were saved and accused had left from the place of offence. 7.2. The aforesaid FIR was lodged on the very day of the incident i.e. on 06.08.2022 against 16 persons. The investigation was started, the Investigating Officer had recorded the statements. The witnesses namely Jyotiben, who is the wife of the Manojbhai complainant, Ajaybhai Manojbhai Solankison of the complainant, Priyankaben Ajaybhai Solanki daughterinlaw of the complainant, Adeysinh Bharatsinh Raj Solanki, who are the neighbors and injured witnesses of the offence, and the village peoples, namely, Dharmendrasinh Adeysinh Solanki, whose father was injured, Taraben Dharmendrasinh Solanki, Ranguben Prabhatbhai Vajir, Maheshbhai Rameshbhai Naik, Daljibhai Prabhabhai Vajir, Vishalbhai Bhupatbhai Naik, Sukhdevbhai Vechatbhai Naik, recorded who have also narrated the incident mentioned in the Fir. 7.3. Addition of this, one witness namely Dharmendrasinh Adeysinh Solanki has also stated in his statement that when he went to save his father, whose cloths were torn by the respondent accused, the present applicant was present and instigating to the remaining accused by saying “maaro… maaro…”. 7.3. Addition of this, one witness namely Dharmendrasinh Adeysinh Solanki has also stated in his statement that when he went to save his father, whose cloths were torn by the respondent accused, the present applicant was present and instigating to the remaining accused by saying “maaro… maaro…”. From the evidence of this witness, prima facie, it can gather that the present applicant was the member of unlawful assembly and has instigated to the other accused for assaulting on the complainant and the witnesses. 8. The judgments which were relied by the learned advocate Mr.Nair are the settled principle of law wherein the Apex Court in clear terms had laid down the principles for considering the application under Section 227 of the Code of Criminal Procedure, 1973, the following principles are reproduced hereinbelow: “(1) That the Judge while considering the question of framing the charges under Section2 27 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By an large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 9. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 9. Considering the provisions i.e. Section 227 of the Code of Criminal Procedure, 1973 at the stage of deciding the application of discharge only prima facie case is to be seen whether the case is beyond reasonable doubt is not to be seen at this stage, if Court comes to the conclusion that the commission of an offence is a probable consequences, a case for framing of charge exists at that stage probative values of materials on record cannot be gone into. At the time of framing of the charge, it is not necessary for the prosecution to establish beyond all reasonable doubts that the accusation which they are bringing against the accused person is bound to be brought home against him. The purpose of Sections 227 and 228 of the Code of Criminal Procedure, 1973 is to ensure that the Court should satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him. The evidence has yet to be taken and the aspect which accused terms vulnerable can be very well clarified by the evidence when the prosecution has its opportunity of placing case through the witness in the Court. 10. Submission of learned advocate Mr.Nair is that there was no reason to remain present when the family members were gathered and scuffle was taken place and the genesis of the FIR is that the notice which was issued for removing the encroachment was not against the applicant, cannot be examined at this stage. 11. It is submitted that as the present applicant is the father of the lady, who contested the election against the wife of the complainant, he was falsely implicated in the FIR, would be the defence of accused, this can be considered as a ground to be the part of unlawful assembly. This case is instituted on the police report and therefore, the Court is required at the time of framing of charge to confine its attention to the documents referred to under Section 173 of the Code of Criminal Procedure, 1973 only. Authenticity and veracity of the evidence is yet to be gone into during the trial. This case is instituted on the police report and therefore, the Court is required at the time of framing of charge to confine its attention to the documents referred to under Section 173 of the Code of Criminal Procedure, 1973 only. Authenticity and veracity of the evidence is yet to be gone into during the trial. Therefore, at the stage of framing of charges, the defence of the accused that because of political rivalry, he was falsely implicated is not required to be considered. 12. Learned advocate Mr.Nair relies on the medical certificate which was produced wherein during the examination of the injured, namely, Ajaybhai Manojbhai Solanki, he narrated the names of fourfive persons, wherein the name of the present applicant was not referred. The other injured witness, namely, Manojbhai Solanki has stated in his history that opposite party had assaulted, same was the certificate wherein the history was recorded of Jyotiben Manojbhai Solanki. 13. Learned advocate submits that though the name of fourfive persons were mentioned in the medical certificate of Ajaybhai injured witness, 16 persons accused were implicated in the FIR. 14. This Court is of the view that it would be hazardous to act on the discrepancies in the names mentioned in the medical certificates as at the stage of framing of charge the Court has to see that whether there is a sufficient ground for presuming that the accused has committed an offence and if the answer is in affirmative then the order of discharge cannot be passed and the accused has to face the trial. Only the prima facie case is to be seen, no strict standard of proof while evaluating the material to ascertain whether there is a prima facie case against the accused is not to be applied. 15. That charge for which the accused present applicant, was claimed to be tried is under Section 379A, 143, 323, 147 and 149 of the Indian Penal Code and Sections 3(2)(Va) of the Atrocities Act. As the another charge under the Atrocities Act i.e. Section 3(1) (R), the learned trial Court has allowed the discharge application and same was not challenged by any party. Therefore, so far as Section 3(1)(R) of the Atrocities Act is concerned, the same is not required to be considered at this stage. As the another charge under the Atrocities Act i.e. Section 3(1) (R), the learned trial Court has allowed the discharge application and same was not challenged by any party. Therefore, so far as Section 3(1)(R) of the Atrocities Act is concerned, the same is not required to be considered at this stage. For the charge of unlawful assembly first Sections 141 and 149 of the Indian Penal Code are required to be looked into, which are reproduced hereinbelow: “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— 1. To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or 2. To resist the execution of any law, or of any legal process; or 3. To commit any mischief or criminal trespass, or other offence; or 4. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or 5. By means of criminal force, or show Explanation.— An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.— An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 16. The submissions of the learned advocate Mr.Nair is that there was no any overt act on the part of the respondent-accused is not to be considered at this stage and it cannot be stated as general preposition of law that unless an overt act is proven against the person, who is alleged to be a member of unlawful assembly, it cannot be held that he is a member of assembly. What is really required to be seen is that member of unlawful assembly should have understood that assembly was unlawful and was likely to commit any act, which fall within the purview of Section 141 of the Indian Penal Code. The core of the offence is word “object” which means the purpose or design and in order to make it common, it should be shared by all. When certain accused persons were gathered of an assembly, the unlawful object of which develop on the spot of occurrence then also they can continue as its member and they are also liable for the act of the one of the member. 17. In the FIR as well as the statement, the allegation against the present applicant is that he was present there. He had assaulted to the complainant and other witnesses along with the other accused and instigated the other accused by saying “maaro…maaro…”. Considering this, this Court finds that prima facie case is made out against the present applicant for framing the charges. 18. Another charge of the Atrocities Act under Section 3(2)(Va) for which the prosecution has claimed to try to the accused which is reproduced hereinbelow: “3. Punishments for offences of atrocities. *** (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 for such offences and shall also be liable to fine.” The scheduled which is provided under the Act wherein the Sections 141, 142, 144, 147 and 323 of the Indian Penal Code are covered. Therefore, this Court comes to the conclusion that prima facie case is made out by the prosecution to frame the charge. 19. Therefore, this Court comes to the conclusion that prima facie case is made out by the prosecution to frame the charge. 19. In view thereof, this Court is of the view that the material collected during the investigation suggests that offence alleged against the present applicant is made out and therefore, the application which is rejected by the learned trial Court is just and proper and there is no any illegality, impropriety and perversity found in the impugned order. 20. Hence, this appeal is dismissed and judgment and order passed below Exhibit 12 in Atrocity Case No.05 of 2022 by the learned Special Judge (Atrocities) Chhota Udepur at Bodeli, dated 20.09.2023 is confirmed. ORDER IN CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023 In R/CRIMINAL APPEAL NO. 2557 of 2023 In view of the judgment passed in Criminal Appeal No.2557 of 2023, Criminal Misc. Application (For Stay) No.1 of 2023 stands disposed of accordingly.