2020 Supreme(Guj) 492

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
Vinubhai Devshibhai Nakrani – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Misc.Application No. 7510 of 2020 With R/Criminal Misc.Application No. 7981 of 2020
Decided on : 29-06-2020

Point of Law:
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

Headnote:

Criminal Law – Criminal Trial – Criminal Produce Code – Section 482 – Indian Penal Code – Sections 143, 147, 394, 323, 504, 506(2) – Use of filthy language – Seeking quash of FIR – Since both the petitions were ordered to be tagged and placed before this court and both sides have requested this court for having common judgment in both the petitions for quashing, both the petitions were heard together and the order is passed as a common order. For the sake of conveniency, Criminal Miscellaneous Application No.7510 of 2020 is treated as the lead matter – Held, It is not in dispute that the F.I.R. has been registered on 06.11.2017 for the alleged incident occurred on the night of 05.11.2017. Indubitably, the same will be governed by the amended provision of section 3(2)(va) of the Atrocities Act, wherein the expression “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” instead of expression “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe” – It is made clear that pursuant to the police papers also, it transpires that Mr Shaileshbhai Haribhai Parmar is arrested on the basis of the complaint filed against him but since March 2020 till the report by the Investigating Agency Mr. V.D. Nakrani (P1) is absconding and therefore on such ground, as discussed earlier, in fleri this is not a fit case to exercise discretion vested under section 482 to quash both the FIRs. At this stage it will be hazardous to presume that no incidents have occurred – This court is not of the view to set aside the first FIR which is upon Shaileshbhai Haribhai Parmar, wherein Mr. V.D. Nakrani (P1) is the complainant, as well as another FIR which is by Prakashbhai Haribhai Parmar (P2). It is made clear that pursuant to the police papers also, it transpires that Mr Shaileshbhai Haribhai Parmar is arrested on the basis of the complaint filed against him but since March 2020 till the report by the Investigating Agency Mr. V.D. Nakrani (P1) is absconding and therefore on such ground, as discussed earlier, in fleri this is not a fit case to exercise discretion vested under section 482 to quash both the FIRs. At this stage it will be hazardous to presume that no incidents have occurred – Petitions dismissed. (Para 28)

Facts of the case:

Petitioner is Director of Amreli Marketing Yard and is earning his livelihood through agricultural activities and is highly respected resident of Amreli. It is contended in the petition that on 6.3.2020 the petitioner was standing at the entrance/ at the main gate of Amreli District Central Cooperative Bank at about 5:30 PM to 5:54 PM with one (1) Tusharbhai Joshi (2) Ruzulbhai Gondaliya, (3) Chandubhai Ramani (4) Rameshbhai Shingada (5) Rajubhai Khabri and with (6) Rajubhai Gajera and at that juncture Shileshbhai Parmar (Brother of Prakashbhai Parmar) had come and had started using filthy language to the petitioner. It is also contended that, he exhibited threats to the effect that the petitioner would be killed and he had also exhibited threats in presence of the aforesaid persons to the petitioner that he would register FIR for the offences under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the petitioner and he had started using absolutely indecent and filthy words for one another director namely Shri P.P. Sojitra and he had started using very dirty, abusive and filthy language for Shri P.P. Sojitra who is also a director of Amreli Market Yard and as the petitioner had requested him not to use filthy language for P.P. Sojitra, however, Shaileshbhai Haribhai Parmar (Brother of Prakashbhai Haribhai parmar) had lost his patience and had given a severe slap upon the face of the petitioner and had exhibited threats to the petitioner that he would kill the petitioner and would get registered the FIR under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the petitioner and his entire family. At this juncture, many persons had intervened and ultimately Shaileshbhai Haribhai Parmar left the place of incident.

Findings of the court:

it is not in dispute that the F.I.R. has been registered on 06.11.2017 for the alleged incident occurred on the night of 05.11.2017. Indubitably, the same will be governed by the amended provision of section 3(2)(va) of the Atrocities Act, wherein the expression “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” instead of expression “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe”. The Apex Court in the case of Asharfi Versus State of Uttar Pradesh (supra) has held that “Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2) (v) of the SC/ST Prevention of Atrocities Act.” The facts of the present case suggest that the petitioners were having the knowledge that the first informant was a member of the schedule caste and schedule tribe since they were his neighbours and are well acquainted with him and his family members. Hence, the offence punishable under section 3(2) (va) of the Atrocities Act registered against the petitioners does not call for any interference in exercise of the powers under section 482 of the Cr.PC – this court is not of the view to set aside the first FIR which is upon Shaileshbhai Haribhai Parmar, wherein Mr. V.D. Nakrani (P1) is the complainant, as well as another FIR which is by Prakashbhai Haribhai Parmar (P2). It is made clear that pursuant to the police papers also, it transpires that Mr Shaileshbhai Haribhai Parmar is arrested on the basis of the complaint filed against him but since March 2020 till the report by the Investigating Agency Mr. V.D. Nakrani (P1) is absconding and therefore on such ground, as discussed earlier, in fleri this is not a fit case to exercise discretion vested under section 482 to quash both the FIRs. At this stage it will be hazardous to presume that no incidents have occurred.

Result: Petitions dismissed