The court held that the FIR did not satisfy the necessary elements for offences under the Atrocities Act, as the incident occurred in a private setting and lacked evidence of caste-based insult.

JUDGMENT :

(J.C. DOSHI, J.)

1. Rule returnable forthwith. Learned APP waives service of rule for respondent No.1 – State and learned advocate Mr.Rushabh Shah waives service of rule for respondent No.2.

2. At the outset, learned advocate Mr.Tirmizi does not press the present petition insofar as offences punishable under Sections 323, 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.Tirmizi 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 office of the accused Ishwarbhai Desai 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.Tirmizi 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 advocate Mr.Rushabh Shah appearing for the first informant fervently objected to relief claimed by the petitioner on the submission that the complainant as well as Mr.Kadarbhai were present in the office and therefore, since more than one persons are present at the time of offence, it can be said that offence took place within the domain and it satisfies the ingredients of Section 3(1)(10) of Atrocities Act. Upon above submissions, he would submit to dismiss this petition even qua offences under the Atrocities Act.

5. Learned APP Mr.Soham Joshi appearing for the respondent State adopts the arguments of learned advocate Mr.Rushabh Shah.

6. I have heard learned advocates for both sides.

7. On 18.08.2017, the following order was passed :

“Notice returnable on 13.9.2017. Learned Public Prosecutor waives service of notice on behalf of respondent No.1 – State. Till the next date of hearing, no coercive steps shall be taken against the present applicants. The Investigating Officer may proceed further with the investigation.”

8. On 22.07.2019, the following order was passed :

“1. By the order dated 18.08.2017, this Court had directed the Investigating Officer to proceed further with the investigation.

2. Learned Additional Public Prosecutor Ms.Bhatt on the instructions of the Investigating Officer, Ashok Desai, Head Constable, B.No.773 from the office of Dy.SP. (SC/ ST) Cell, Gandhinagar, has submitted that the investigation is already over and necessary report / draft chargesheet shall be produced before this Court for perusal.

3. On the request of learned Additional Public Prosecutor Ms.Bhatt, the matter is kept on 23rd August,