SCR.A/913/2008 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 913 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================== PARIMAL HASMUKHBHAI TRIVEDI - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================== Appearance : MR SI NANAVATI, SR. ADVOCATE with MR.VIJAY NAIR with MRS VD NANAVATI for the petitioner MRS ML SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1-2-3 Respondent(s) : 4 – Present in person ========================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 19/06/2008 ORAL JUDGMENT 1. By this application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal SCR.A/913/2008 2/19 JUDGMENT Procedure, 1973 (the Code), the petitioner has prayed for the following substantive reliefs : “[A] Your Lordships would be pleased to quash and set aside the F.I.R. No.3042/08 dated 03/05/2008 registered with the Gujarat University Police Station, Navrangpura, Ahmedabad for the offences under Section 3(1)(x) of the Schedule Caste and the Schedule Tribes (Prevention of Atrocities) Act, 1989. [B] Your Lordships would be pleased to restrain the Respondent No.2 and 3 from proceeding with investigation in connection with the F.I.R. No.3042/08 dated 03/05/2008 registered with the Gujarat University Police Station, Navrangpura, Ahmedabad.” 2. The facts of the case stated briefly are that the petitioner herein is the Vice Chancellor of the Gujarat University and the respondent No.4 herein is the original complainant, who is a Professor in the L & C Arts College and is also Member of the Gujarat University Senate. The respondent No.4 herein (hereinafter referred to as “the complainant”) had lodged a complaint before the Gujarat University Police Station, which came to be registered as a First Information Report vide II – C.R. No.3042/2008 alleging commission of the offence under Section 3(1)(x) of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act). It is the aforesaid First Information Report of which quashment is sought for by way of the present petition. 3. This matter had come up for hearing initially on 12th May, 2008, whereupon the complainant who was present before the Court had prayed for time to file his reply in SCR.A/913/2008 3/19 JUDGMENT response to the petition. Hence, the matter was adjourned, however, the petitioner was granted some interim protection by directing that, in the meanwhile, the petitioner shall cooperate with the investigating agency, however, no coercive action shall be taken against him. Thereafter, the matter was adjourned from time to time, and on 21st May, 2008, notice was issued which was made returnable on 17th June, 2008. All throughout the protection given by order dated 12th May, 2008 continued. The matter has now come up for admission and hearing on the question of interim relief. 4. Heard Mr.S.I.Nanavati, learned Senior Advocate with Mr.Vijay Nair, learned advocate for the petitioner, Mrs.Manisha Lavkumar Shah, learned Additional Public Prosecutor for respondents No.1, 2 and 3 and the respondent No.4 – Shri Pankaj Maganlal Shrimali, who has appeared in person. 5. Mr.S.I.Nanavati, learned Senior Advocate has drawn the attention of the Court to the communication dated 3rd May, 2008 addressed by the complainant to the petitioner herein to point out that, in the said application, it has been stated that the complainant, along with Dean of the Arts Faculty Shri P.P.Prajapati and Ex-Senate Member Shri Bhavin Rathod, were present, at the time the petitioner came out into the lobby and uttered objectionable words against the complainant. It is further pointed out that the complainant had stated therein that the petitioner had been passing remarks pertaining to his caste for the last two years, and that, a complaint had been lodged before SCR.A/913/2008 4/19 JUDGMENT the S. C. Commission, wherein the petitioner had given a false reply. That thereafter, though the complainant had been elected as a Member of the Senate, the petitioner had not appointed him to any of the Committees, which is more serious. It is, accordingly, submitted that the complainant already had some grievances against the petitioner, which has resulted into filing of the complaint in question. Referring to the communication dated 2nd April, 2008 addressed by Dr.Pradip Prajapati to the petitioner, the learned Senior Advocate has submitted that he too had several grievances against the petitioner which is reflected in the said order. Attention is drawn to the last paragraph of the said letter, whereby the petitioner has been put to notice that in view of his conduct, Shri Prajapati may lodge a complaint under the Atrocities Act, for which the petitioner shall be wholly responsible. It is submitted that said Mr.Prajapati has been cited as a witness to the incident in question, and that both the complainant as well as the said witness had got grievances against him, which gives rise to a belief that the complaint is motivated and filed with the malicious intent to wreak vengeance against the petitioner with a view to spite him due to private and personal grudge. The learned Senior Advocate has also drawn the attention of the Court to the fact that, in the communication dated 3rd May, 2008, the complainant has stated that Shri Bhavin Rathod was present with him, whereas there is no mention of his presence in the First Information Report. It is, accordingly, submitted that there are basic contradictions in the First Information Report and in the communication addressed by the SCR.A/913/2008 5/19 JUDGMENT complainant to the petitioner. 6. In support of his submissions, the learned Senior Advocate has placed reliance upon a decision of this Court in the case of A.K.Chaudhary v. State of Gujarat, 2005(3) GLH 444, and more particularly to the contents of paragraph 36 thereof, where there is a reference to the decision of the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal, AIR 1992 SC 604, to submit that this case is squarely covered by Illustration (7) of the categories of cases enumerated therein, whereby it has been held that the Court can exercise its extraordinary powers under Article 226 of the Constitution of India or its inherent powers under Section 482 of the Code, where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 7. It is submitted that, in the alternative, if the Court is not inclined to grant the main relief prayed for in the application, the petitioner may be protected by directing the investigating agency not to take coercive action against him. Reliance is placed upon an order dated 3rd November, 2008 passed by this Court in the case of A.K.Chaudhary v. The State of Gujarat, Special Criminal Application No.1176 of 2004, wherein the Court had inter alia granted the following relief. “[6] During the course of investigation, if the SCR.A/913/2008 6/19 JUDGMENT Investigating Agency reaches to the conclusion that any of the petitioners is required to be arrested for any offence punishable under Indian Penal Code or Atrocities Act, then the Investigating Officer shall intimate the concerned petitioner/s in advance before 10 (ten) clear days before inflicting formal arrest, so that the petitioners can approach appropriate forum including this Court for any appropriate further relief. Failure to cooperate with the Investigating Agency shall bring this protection to an end.” It is, accordingly, submitted that similar relief may be granted in favour of the petitioner. 8. The learned Senior Advocate has also placed reliance upon a decision of the Supreme Court in the case of Som Mittal v. Government of Karnataka, AIR 2008 SC 1126 and more particularly to paragraph 42 thereof, to submit that before arresting a person, there must be a reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified and that, except in heinous offences, an arrest must be avoided. 9. In conclusion, it is submitted that the complaint is vitiated as the same is filed with a malicious intent and with an ulterior motive for wreaking vengeance on the petitioner with a view to spite him due to private and personal grudge, as pointed out herein before. It is, accordingly, urged that the First Information Report in question is required to be quashed or that in the alternative, the petitioner is entitled to the protection, as prayed for hereinabove. SCR.A/913/2008 7/19 JUDGMENT 10.The respondent No.4 – original complainant has addressed the Court in person. It is submitted that the present petition has been filed merely with a view to circumvent the bar under Section 18 of the Act, which provides that Section 438 of the Code shall not apply to persons committing an offence under the Act. Referring to the letter addressed by Shri P.P.Prajapati to the petitioner, it is submitted that the same is written in a totally different context and has no relevance to the facts of the present case. In respect of both the letters addressed by the complainant as well as Shri Prajapati, it is submitted that the said letters are issued only for administrative purposes and should not be read out of context. Attention is also drawn to the complaint lodged by Bhavin Rathod against Shri P.P.Prajapati, to point out that a perusal of the said complaint shows that the allegations made therein are highly improbable and that the said complaint has been filed at the instance of the petitioner. It is submitted that the petitioner was habituated to using objectionable language and insulting the complainant and other members belonging to the scheduled castes and scheduled tribes, and that, the complainant had not thought it fit to file any complaint earlier as considering the stringent provisions of the Act, in his opinion, the same should not be resorted lightly as frequent resort to the same would dilute its efficacy. It is submitted that on the face of the allegations made in the complaint, the offence alleged against the petitioner is clearly made out. Hence, no case is made out for intervention by this Court in exercise of its powers under SCR.A/913/2008 8/19 JUDGMENT Article 226 of the Constitution of India or under Section 482 of the Code. In support of his submissions, Shri Shrimali has placed reliance upon the following decisions: [a] A decision of the Supreme Court in the case of State of M.P. v. Bhooraji, (2001)7 SCC 679. [b] A decision of the Supreme Court in the case of Ram Narain v. Murat and others, (2002)9 SCC 705. [c] A decision of this Court in the case of Harivallabh Parikh v. State of Gujarat, 1997(1) GLR 638. [d] A decision of this Court in the case of Gordhanbhai Shankerbhai Thaker v. State of Gujarat, 1993(1) GLR 516. 11.Mrs.Manisha Lavkumar, learned Additional Public Prosecutor has submitted that a bare perusal of the First Information Report in question itself makes out a case against the petitioner and as such, keeping in view the settled legal position, no case is made out for intervention by this Court. It is further submitted that the allegations of malafides against the complainant cannot be gone into at this stage, and that, the same are of no consequence while considering an application for quashing of the proceedings. In support of her contention, the learned Additional Public Prosecutor has placed reliance upon a decision of the Supreme Court in the case of State of Karnataka v. M.Devendrappa & Anr., JT 2002(1) SC 213. SCR.A/913/2008 9/19 JUDGMENT 12.The learned Additional Public Prosecutor has also placed reliance upon a decision of the Supreme Court in the case of Jagdish Ram v. State of Rajasthan and another, (2004)4 SCC 432, wherein it has been held that the plea that the complaint was filed as a result of vindictiveness of the complainant is not relevant at this stage. The appellant would have adequate opportunity to raise all pleas available to him in law before the trial court at an appropriate stage. Reliance is also placed upon a decision of the Supreme Court in the case of S.M.Datta v. State of Gujarat, 2001 AIR SCW 3133 for the proposition that the First Information Report has to be read as a whole and should be indicative of the offence broadly and not with mathematical accuracy and nicety. In conclusion, the learned Additional Public Prosecutor has submitted that there being no merit in the petition, the same deserves to be dismissed. 13.This Court has considered the submissions advanced by the learned advocates for the parties as well as by the respondent No.4 – complainant. This Court has also perused the record of the case. 14.The basic principles that are required to be kept in mind while deciding an application for quashing an First Information Report/complaint, either under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, 1973 have been delineated by the Supreme Court in the case of State of Haryana v. Bhajan Lal (supra), wherein the Court has given the SCR.A/913/2008 10/19 JUDGMENT following categories of cases by way of illustrations wherein the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 of the Code could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice : “1.Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2.Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R., do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3.Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4.Where the allegations in the F.I.R., do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5.Where the allegations made in the F.I.R., or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6.Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned SCR.A/913/2008 11/19 JUDGMENT Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7.Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15.These principles have been reiterated from time to time by subsequent decisions of the Supreme Court. The present case also has to be examined keeping in mind the aforesaid principles. 16.Of the aforesaid illustrations, the first illustration lays down the basic requirements for sustaining a First Information Report/complaint. If the said requirement is not fulfilled, the same calls for quashing of the said First Information Report/complaint. Therefore, the First Information Report in question is firstly required to be examined in the light of the first illustration, to find out whether the basic requirements are fulfilled. 17.The facts leading to the incident as are borne out from the complaint are that the University had appointed Shri Pradip Prajapati as a Coordinator in connection with the M.A., M.Phil, B.P.Ed. Examinations of the year 2004. The said Shri Prajapati appointed the complainant as Co- Coordinator. However, the petitioner had cancelled the said appointment, hence Shri Prajapati had met the SCR.A/913/2008 12/19 JUDGMENT petitioner and sought his explanation in connection with the cancellation of the appointment of the complainant, whereupon the petitioner had uttered objectionable casteist words against the complainant which led to Shri Prajapati expressing his inability to work as a Coordinator. It appears that the said incident had taken place on 30th April, 2008 which is borne out from the communication dated 1st May, 2008 addressed to Shri Prajapati by the University, Annexure “B” to the application. It is the case of the complainant that he had, therefore, tried to make several attempts to meet the petitioner to ask his explanation regarding the treatment meted out to the complainant. On the day of the incident, the complainant and Dr.Prajapati went to meet the petitioner and waited for hours to meet him, but were told that the petitioner would not meet them. Thereafter, they went away and when they returned after completing some tasks at the University, the petitioner was leaving his chamber, at which point of time, in the lobby, the complainant had asked him the reason as to why he was not granting him an appointment to meet him, whereupon the petitioner had uttered objectionable words against the complainant regarding his caste. The exact words which were uttered by the petitioner are re-produced in the complaint. It is clarified in the First Information Report itself that the complainant was reluctant to use such ungentlemanly words in his letter addressed to the University, hence, he used the more polite expression “Harijan” instead. Thus, looking to the allegations made in the First Information Report, it is the specific case of the complainant that the petitioner had used insulting words against his caste in SCR.A/913/2008 13/19 JUDGMENT the lobby outside the petitioner's chamber in public view. In the circumstances, it cannot be said that the provisions of Clause (x) of Section 3 of the Act are not attracted. In the circumstances, the present case does not fall within the first illustration laid down in Bhajan Lal's case. 18.It would next have to be ascertained as to whether the case of the petitioner falls within any of the other categories enumerated in Bhajan Lal's case. 19.It is settled law that while considering a petition under Section 482 of the Code, this Court is not required to go into the merits of the allegations made in the complaint. It would, of course, be open to the Court to examine other relevant supporting documents annexed with the application if existence or contents of such documents are not disputed by the other side. 20.The learned Senior Advocate for the petitioner has placed strong reliance upon the letter dated 3rd May, 2008 addressed by the complainant to the University and the letter dated 2nd April, 2008 addressed to the petitioner by Dr.Pradip Prajapati, to contend that in view of the contents of the said letters, it is apparent that the First Information Report would be covered by illustration 7 of Bhajan Lal's case viz., “where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” On a conjoint reading of the communication dated 3rd SCR.A/913/2008 14/19 JUDGMENT May, 2008 and the First Information Report, it appears that it is the case of the complainant that the petitioner herein had right from the inception displayed a disparaging attitude towards the staff belonging to the scheduled castes and scheduled tribes. That despite the aforesaid position, they had so far not thought it fit to resort to the provisions of the Act, which according to the complainant, were in the nature of a “Brahmastra” which should not be used lightly. It is only when the insults went beyond the limits of tolerance, that the complainant had resorted to lodging the First Information Report in question. A perusal of the letter dated 2nd April, 2008, also does not lead one to believe that the First Information Report in question is motivated by malice. In the circumstances, upon perusal of the supporting documents placed on record by the parties, there is no reason for this Court to prima facie come to the conclusion that the complaint in question is malicious or motivated, as is sought to be contended on behalf of the petitioner. 21.Besides, as rightly pointed out by the learned Additional Public Prosecutor, when an information is lodged at the police station and an offence is registered, then the malafides of the informant would be of a secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. In the circumstances, the plea that the complaint was filed as a SCR.A/913/2008 15/19 JUDGMENT result of vindictiveness of the complainant is not relevant at this stage. The petitioner would have adequate opportunity to raise all pleas available to him under law before the trial Court at an appropriate stage. Hence, no case has been made out to quash the First Information Report in question. 22.As regards the alternative prayer made on behalf of the petitioner, no such relief has been claimed in the petition. Nevertheless, this Court has examined as to whether the petitioner is entitled to the alternative prayer. The learned Senior Advocate has submitted that similar relief as is granted in the case of A.K.Chaudhary v. The State of Gujarat (supra) vide order dated 3rd November, 2004, which has been reproduced hereinabove, be granted to the petitioner. In this connection, it would be relevant to examine the provisions of Section 18 of the Act. Section 18 of the Act provides that, nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. In the circumstances, granting any relief directing the investigating agency not to take any coercive action or not to arrest the petitioner would amount to circumventing the provisions of Section 18 of the Act. When the Legislature in its wisdom while enacting the statute has thought it fit not to make the provisions of Section 438 of the Code applicable to persons against whom an offence under the Act is alleged, this Court in exercise of extraordinary powers under Section 226 of the Constitution of India or inherent powers under Section SCR.A/913/2008 16/19 JUDGMENT 482 of the Code, would ordinarily not grant any relief which would be contrary to the provisions of the statute. Besides, if it is open to the petitioner to approach the appropriate forum for appropriate further relief, he can avail of the said remedy at any point of time, it is not necessary for the petitioner to wait for an intimation from the investigating officer regarding his intention to arrest him before resorting to any such remedy, if available. Hence, the request to grant similar relief as granted vide order dated 3.11.2004 in the case of A.K.Chaudhary v. The State of Gujarat (supra), does not merit acceptance. 23.Besides, it may be noticed that while enacting the stringent provisions like Section 18 of the Act, whereby the Legislature has thought it fit to place