The absence of essential elements, such as public view and caste identification, precludes prosecution under the Atrocities Act.

ORDER :

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed to quash and set aside the FIR being C.R.No.I-73 of 2018 registered with Rajgadh Police Station, District Panchmahal and all the consequential proceedings arising therefrom qua the present applicants.

2. At the outset, learned advocate Mr.Kharadi does not press the present petition insofar as offences punishable under Sections 452, 332, 504, 506(2) and 114 of IPC are concerned, but he press this petition only qua offences punishable under Sections 3(1)(R)(S) and Section 3(2)(5)(a) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”).

3. Referring to the FIR, learned advocate Mr.Kharadi would submit that the alleged offence did not take place within public domain. He would further submit that according to FIR, the incident took place within the residential house and therefore, there is clear bar of Section 3(1)(10) of Atrocities Act are attracted in the present case. He would further submit that on plain reading of FIR, it does not indicate that the first informant has mentioned in FIR that he belongs to a particular caste i.e. Scheduled Caster or Scheduled Tribe and having knowledge of the same, the accused has abused him and insulted him for the caste. Therefore, since ingredients of offence under Section 3(1) (R)(S) and 3(2)(5)(a) of the Atrocities Act are not satisfied, the offence may be quashed. Learned advocate Mr.Kharadi referred to the judgment of coordinate Bench of this Court in case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja vs. State of Gujarat and another, being Criminal Misc. Application No.15188 of 2014. Upon above submissions, he would submit to quash the FIR as far as offence under the Atrocities Act are concerned.

4. On the other hand, learned APP fervently objected to relief claimed by the petitioner on the submission that at the time of offence, offence took place within the domain and it satisfies the ingredients of Section 3(1)(10) of Atrocities Act. Therefore, he would submit to dismiss this petition even qua offences under the Atrocities Act.

5. I have heard learned advocates for both sides.

6. On 18.12.2018, the following order was passed :

“1. According to the petitioners, previous complaint which has been filed, where present petitioner no.1 is one of the accused being IC.R. No. 66 of 2018 on 12.09.2018. The Court has protected the present applicant no.1 and others. Therefore, this another complaint has been filed.

2. This Court has called the Investigating Officer, there appears to be no medical certificate neither from Civil Hospital nor from private hospital.

3. On instructions, learned Additional Public Prosecutor submits that no treatment has been taken by the complainant who happens to be brother-in-law of Madhuben who is first informant of the IC.R. No. 66 of 2018.

4. Issue Rule, returnable on 16th January, 2019. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent no.1 – State.

5. There shall be no coercive steps against the present petitioners. However, the investigation to continue in due course and petitioners shall cooperate with the investigation.

6. To be tagged with Criminal Misc. Application No. 17857 of 2018.

Let the matter appear on 16th January, 2019.”

7. Let me refer the necessary contents of the FIR which reads as under :

“First Informant has alleged that on 9/10/2018 the First Informant had been to the residential premises of one. Babubhai to collect the amount of Rs.2000/-which was earlier owed to said Babubhal, at that time the applicant No.2 Instigated the applicant No.2, 3 and 4 to abuse and thrash first informant. Accordingly the applicant Nos. 2, 3 and 4 abused and gave kicks and fists blows to the First Informant. After the First Informant being saved by the house owner, the applicant Nos. 2 to 4 left the premises by threatening the First Informant of his life.