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2025 DIGILAW 247 (GUJ)

Nayankumar Kanubhai Patel v. State of Gujarat

2025-03-10

J.C.DOSHI

body2025
JUDGMENT : J. C. DOSHI, J. By way of this petition, under Section 482 of the Code of Criminal Procedure (for short “the Code”), the petitioner seeks to challenge the order passed by the learned Special Atrocity Judge, Gandhinagar dated 31/03/2017 below Exh.21 in Atrocity Case No.29 of 2013 seeking discharge from the offence punishable under Section 3(1)(x) of the Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989. 2. The facts leading to the filing of the present petition emerging from the pleadings are that first informant owns lands of about 65 bighas in the sim of village Pethapur (Fatepura). It is alleged that on 21.10.2012 at about 15.00 hours, the petitioner and the other co-accused started abusing first informant near the land bearing Revenue Survey No. 2957. It is also alleged that first informant was threatened to vacate said land and handover possession of the lands in question to the petitioner and other co-accused and was also threatened that first informant would be done to death. It is alleged that petitioner and other co-accused abused the first informant by using derogatory words and have also spoken words against the community of the first informant. It is further alleged that accused have started beating the first informant with sticks and, therefore, FIR was lodged. In the said FIR it is alleged that land bearing Revenue Survey No. 2957/p was purchased by the grand father of the first informant named Narvarlal Kalidas Leuva and his elder brother Snehalbhai for a consideration of Rs. 87,125/- by a registered sale deed bearing no. 3955 from Dhulaji Jivaji Thakore; his nephew Rajuji Vihaji Thakore; Shakraji Jivaji Thakore; Harkhaben Jivaji Thakore. It is further alleged that in respect of very same survey number, land admeasuring 02 hectare was purchased by the grant father of the first informant Natvarlal Kalidas and others from the aforestated Agriculturists on 10.03.1997 by way of a registered sale deed bearing no. 890. It is alleged that aforesaid land which have been purchased by the grant father of the first informant are situated adjoining to the land owned by the first informant and they are cultivating said land. It is also alleged that both the pieces of land are in possession of the first informant. It is further alleged that petitioner has got executed Banakhat on 05.04.2012 in respect of the very same land. It is also alleged that both the pieces of land are in possession of the first informant. It is further alleged that petitioner has got executed Banakhat on 05.04.2012 in respect of the very same land. It is further alleged that first informant has learnt that Power of Attorney of the land in dispute was given in favour of Maulik Rameshchandra Prajapati, a dispute case is also pending before the Prant Officer in respect of the aforesaid facts. It is further alleged that on 21.10.2012, the first informant wanted to sell land bearing Revenue Survey No. 2952 to 2956 and, therefore, had gone to show said land to one Kunjanbhai Shukla and Mayur Makwana. At that time the petitioner, Maulik Prajapati; Rajuji Vihaji; Kanaji Thakore came near their there and started abusing him by using derogatory words and also threatened to vacate said piece of land. It is further alleged that on 22.10.2012 at 06.30 p.m. when the first informant was returned to his home, the petitioner and other co- accused met him and accused started abusing him by using derogatory words and also threatened that he would be done to death. Therefore, FIR was lodged. 3. Pursuant to lodgment of the FIR, the petitioner preferred application seeking quashment of the FIR being CR.MA No.20302 of 2013 which came to be disposed of as withdrawn as per order dated 10/03/2014 passed by co-ordinate Bench of this Court. 4. Thereafter, the petitioner preferred application under Section 227 of the Code seeking discharge before the learned Sessions Judge at Gandhinagar which came to be rejected as stated in paragraph 1 of this judgment. 4.1 In essence, the petitioner prayed for quashment of the impugned order whereby the learned trial Court declined to discharge the accused. 5. Assailing the impugned order, learned advocate Mr.Mangukiya for the petitioners while referring to the decision in case of Dhiren Prafulchai Shah vs. State of Gujarat [2016 eGLR_10006021] would submit that even if the allegations levelled in the FIR and later on stated in the charge-sheet is taken as gospel truth, the offence under Section 3(1) (x) of the Atrocities Act is not made out. He would further submit that trial Court has failed to exercise the jurisdiction under Section 227 of the Code to discharge the accused. He would further submit that trial Court has failed to exercise the jurisdiction under Section 227 of the Code to discharge the accused. 5.1 Learned advocate Mr.Mangukiya would further submit that land in question is owned by the petitioners and first informant and other persons have illegally encroached upon the land. The petitioners being the owner of the land in question asked the complainant to clear the encroachment and to vacate the illegal possession over the disputed land. Under this circumstances, it is wrongfully alleged that petitioner have beaten the first informant and other persons by using filthy language derogating them on caste of the complainant. He would submit that looking to the facts of the case petitioner has failed to establish that any such words are alleged to have used to lower the complainant on his caste within public view. 5.2 While stressing upon the words ‘within public view’ as stated in Section 3(1)(x) of the Atrocities Act, learned advocate Mr.Mangukiya would submit that third party should be present at the time of intimidating the first informant on his caste; however in the present case prosecution has failed to point out any third party being present and thus essential ingredients of Section 3(1)(x) of the Atrocities Act are missing. 5.3 Learned advocate Mr.Mangukiya would submit that despite the aforesaid fact, the trial Court committed serious error in rejecting the application seeking discharge. 5.4 By making above submissions, learned advocate for the petitioner Mr.Mangukiya would submit to allow this application and to quash and set aside the order passed by the trial Court and to discharge the petitioners from the charges levelled against them. 6. Learned Advocate Mr.Dewal appearing for the first informant while taking this Court through the order rendered in CR.MA No.20302 of 2013 whereby said petition preferred by the petitioner was disposed of as withdrawn as per order dated 10/03/2014 passed by co-ordinate Bench of this Court and submitted that said petition was withdrawn without reserving any liberty. He would further submit that thereafter the investigation was carried out and ultimately the charge-sheet was laid. He would further submit that during the investigation, the IO recorded the statement of witnesses viz., Mr.Mayur Makwana and Mr.Kunjanbhai Shukla who were present at the spot of incident and they have supported the case of prosecution. He would further submit that thereafter the investigation was carried out and ultimately the charge-sheet was laid. He would further submit that during the investigation, the IO recorded the statement of witnesses viz., Mr.Mayur Makwana and Mr.Kunjanbhai Shukla who were present at the spot of incident and they have supported the case of prosecution. In their statements, they have specifically stated that derogatory and intimidating words were spoken to the first informant. Thus, in their statement, the prima facie alleged offence is established and trial Court has rightly not exercised the discretion in favour of the petitioners. 6.1 By making above submissions, learned advocate Mr.Dewal would submit to dismiss the present petition. 7. Learned APP Mr.Manan Mehta for the respondent – State while supporting the arguments made by learned advocate for the first informant would submit that beside petition has no merits, another question would arise that petitioner instead of filing the revision challenging the impugned order by preferring the quashing petition and called the Court to exercise the inherent jurisdiction under Section 482 of the Code. He would submit that when the alternative efficacious remedy is available to the petitioners to challenge the impugned order, the petitioner is not legally entitled to seek any relief by invoking inherent jurisdiction under Section 482 of the Code. He would therefore submit to dismiss the present petition on this count also. 8. Having heard the learned advocates appearing for the respective parties vis-a-vis examined the impugned order, what could be noticed at the outset that though petitioner preferred quashing proceedings before this Court being CR.MA No.20302 of 2013 whereby said petition was disposed of as withdrawn as per order dated 10/03/2014 passed by co- ordinate Bench of this Court; without reserving any liberty to the petitioner to initiate appropriate proceedings available under the law. Question therefore would arise that without reserving liberty whether petitioner could prefer another petition identical to previous petition. Be that as it may, the petitioner after filing of the charge-sheet, seeks to prefer discharge application for the offence punishable under Section 3(1) (x) of the Atrocities Act which came to be rejected by the trial Court by holding that prima facie case is made out against the accused and it appears that accused had insulted the caste of the complainant within public view. The learned trial Court also observed that considering the allegations levelled by the first informant under the Atrocities Act, decision on issue cannot be taken without recording the evidence and considering the papers of charge-sheet, there are sufficient evidence to frame the charge against the accused. The trial Court also observed that allegations made by org. accused no.1 in the application can be subject matter of evidence and at this stage it cannot be believed that first informant has filed the wrong complaint. Thus, the trial Court considering the prima facie case under the Atrocities Act and having found sufficient evidence to frame the charge rejected the application seeking discharge by the accused. 9. Now, in background of the above, if the contention canvassed by learned advocate Mr.Mangukiya is examined, as per his submissions; the accused have not spoken any filthy language within public view and therefore the offence under Section 3(1)(x) of the Atrocities Act is not attracted. Section 3(1)(x) of the Atrocities Act reads thus: “Section 3(1)(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." 10. In Dhiren Prafulbhai Shah (supra) the co-ordinate Bench of this Court has observed in paragraph 25 to 27 as under: “25. The expression "public" is a polimorphus word, which assumes different colours in different context. Judges and jurists have so far not found it possible to work out a complete logical definition of the words "public" universally applicable to all situations. Corpus Juris (page 844) defines "public" as under: "PUBLIC AS A NOUN does not have a fixed or definite meaning; it is a convertible term. In one sense, the "public" is everybody; and accordingly "public" has been defined or employed as meaning the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or country; the people; the whole body politic; or all the citizens of the state. In another sense the word does not mean all the people, or most of the people, nor many of the people of a place, but so many of them as contradistinguished them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighbourhood. 'B'. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place, the people of the neighbourhood. 'B'. As an adjective 1. In General. It is said to be very difficult, if not impossible to frame a definition for the word "public" that HC-NIC Page 9 of 21 Created On Wed Feb 03 00:51:54 IST 2016 R/CR.MA/9976/2015 JUDGMENT is simpler or clearer than the word itself; a convertible term, used variously, depending for its meaning upon the subjects to which it is applied. It has two proper meanings." 26. The SC/ST Act was enacted as the laws like the Protection of Civil Rights Act, 1955 and provisions of the Indian Penal Code was found inadequate to arrest the commission of atrocities against members of Scheduled Castes and Scheduled Tribes. A specific legislation to check and deter crimes committed by the nonScheduled Castes and Scheduled Tribe members thus became necessary. The statement of objects and reasons of the Act reads: "Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded forced labour, the vested interests try to cow them down and terrorize them. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on the mass, killing of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes. 27. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Subclauses (I) to (xv) of Section 3(1) of the Act enumerated various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub- clause(x) is the only clause where even offending "utterances" have been made punishable. The Legislature required intention as an essential ingredient for the offence of "insult", "intimidation" and "humiliation" of a member of the Scheduled Castes or Scheduled Tribe in any place within "public view". Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded.” 11. It is essentially that to make out an offence under Section 3(1)(x) of the Atrocities Act, the presence of petitioner and first informant are insufficient. There must be presence of third party or independent person in whose presence derogatory or intimidating words are said to have been spoken. It is essentially that to make out an offence under Section 3(1)(x) of the Atrocities Act, the presence of petitioner and first informant are insufficient. There must be presence of third party or independent person in whose presence derogatory or intimidating words are said to have been spoken. Learned advocate for the petitioner though argued that no third party was present when alleged derogatory remarks were made; perhaps forgot to read the statement of the two witnesses Mr.Mayur Makwana and Mr.Kunjanbhai Shukla; both of them in their statement recorded during the investigation; in unequivocal terms stated that petitioners have spoken the words to humiliate and derogate the first informant on his caste or he being a member of SC and ST. These two persons are third party and therefore, it cannot be said that particular derogatory words were not spoken in public view and therefore contention of learned advocate Mr.Mangukiya to discharge the accused from the charge of Atrocities Act cannot be countenanced. 12. The above finding takes this Court to address the second contention that despite the alternative efficacious remedy is available to the petitioner to file revision under Section 397 r/w 401 of the Code, can the petitioner invokes inherent jurisdiction of this Court under Section 482 of the Code to challenge the impugned order. 13. Let refer to Section 482 of the Code: "482. Saving of inherent powers of High Court. - 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.” 14. Section 482 of the Code envisage circumstances under which inherent jurisdiction may be exercised viz., (i) to give effect to an order under this Code and (ii) to prevent abuse of the process of any Court and (iii) or otherwise to secure the ends of justice. Interference under this Code can be sought on fulfilling three conditions viz., (i) alleged injustice would be of a grave, and not trivial character; (ii) it is palpable, clear and doubtful; and (iii) there exits no other provisions of law by which the party aggrieved could have sought relief. Interference under this Code can be sought on fulfilling three conditions viz., (i) alleged injustice would be of a grave, and not trivial character; (ii) it is palpable, clear and doubtful; and (iii) there exits no other provisions of law by which the party aggrieved could have sought relief. Needless to state the jurisdiction vested under this Code has to be exercised sparingly and with the circumspection judicially and it should be satisfied that an order passed under the Code would be render ineffective or the process of any Court would be abused or the ends of justice would not be secured. The inherent power of High Court is undefinable. The word “to make such order as may be necessary” reflects the mandate of the legislators that unless there is absolute necessity, the High Court shall not take recourse to Section 482; necessity which giving rise to exercise of the jurisdiction under Section 482 is already been discussed. In paramateria section in a Criminal P.C. (1898), in paragraph 12 of the judgment in case of Talab Haji Hussain vs. Madhukar Purshottam Mondkar & Anr., [AIR 1958 SC 376] , it has been held as under: “12. We must accordingly hold that the view taken by the Bombay High Court about its inherent power to act in this case under s. 561 A is right and must be confirmed. It is hardly necessary to add that the inherent power conferred on High Courts under s. 561A has to be exercised sparingly., carefully and with caution and only where such exercise is justified "by the tests specifically laid down in the section itself. After all, procedure, whether criminal or civil, must serve the higher purpose of justice; and it is only when the ends of justice are put in jeopardy by the conduct of the accused that the inherent power can and should be exercised in cases like the present. The result is that the appeal fails and must be dismissed. Appeal dismissed.” 15. Reiterating the aforesaid view in Kurukshetra University And Anr. vs State Of Haryana And Anr [AIR 1977 SC 2219] , the Apex Court has observed as under: “It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. Appeal dismissed.” 15. Reiterating the aforesaid view in Kurukshetra University And Anr. vs State Of Haryana And Anr [AIR 1977 SC 2219] , the Apex Court has observed as under: “It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” 16. Again in case of Divine Retreat Centre vs State Of Kerala & Ors (2008) 3 SCC 2219 ; the Apex Court has held and observed as under: “22. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.” 17. In the case on hand, the petitioner seeks to quash and set aside the order passed by the learned Sessions Court declining to discharge the petitioner from the accusation levelled in charge-sheet invoking the power under Section 482 of the code. In the opinion of this Court, such relief can be prayed for under Section 397 r/w 401 of the Code by preferring the revision application. 18. Apt to note that power under Section 482 of the Code are discretionary in nature though there may not be total ban on exercise such power to interfere in order which is revisable under Section 397 r/w 401 of Cr.PC. Issue arise whether any such situation warrant; at the same time, there are limitation or self-restrain recognized and followed by Court in exercise of jurisdiction. In such limitation where the petitioner has alternative efficacious remedy and did not avail it and file the petition under Section 482 of the Code to overcome the said situation, the petition ought to have been refused. In such limitation where the petitioner has alternative efficacious remedy and did not avail it and file the petition under Section 482 of the Code to overcome the said situation, the petition ought to have been refused. In Prabhu Chawla vs State Of Rajasthan & Anr [ 2016 (16) SCC 30 ] , the Hon’ble Apex Court quoted Madhu Limaye vs The State Of Maharashtra [ 1977 4 SCC 551 ] where it has been held that though availability of an alternative efficacious remedy of revision under Section 397 of the Code does not affect the inherent power under Section 482 of the Code which the High Court possess; at the same time to show inherent power is not to be allowed except under the compelled circumstances; it should not invade areas set apart for specific power under the same Code. It was held that while it is true that Section 482 of the Code pervasive; it should not subvert legal interdicts written into the same Code. 19. By catena of decisions, it has been held that powers under Section 482 of the Code is to be exercised sparingly and only when it is necessary to ensure justice or to prevent misuse of judicial process. The person seeking action under Section 482 of the Code avoiding to avail the remedy of revision has to satisfy that there was exceptional circumstances permitting him to invoke Section 482 and it was imperative despite availability of alternative remedy. In the present case, learned advocate Mr.Mangukiya for the petitioner specifically confronted with that why petitioner has not availed remedy of revision to challenge the impugned order? It was answered that since two different remedies are available with the petitioner, the petitioner has opted to seek relief of quashment of the impugned order invoking Section 482 of the Code. Only on availability of two remedies, invocation of Section 482 is permitted. In presence of alternative efficacious remedy, invocation of Section 482 is permissible in compelling circumstances. Learned advocate Mr.Mangukiya failed to point out any compelling circumstances to subvert alternative efficacious remedy and to invoke inherent jurisdiction of this Court under Section 482 of the Code. 20. For the foregoing reasons, the petition fails and is accordingly dismissed. IR if any shall stand vacated.