gujarat high court

Gujarat High Court: In a writ petition filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) for quashing a First Information Report (‘FIR’) filed against the petitioner for offences under Section 323 and 506(2) of the Penal Code, 1860 (‘IPC’) and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC and ST Act’), the Single Judge Bench of Sandeep N. Bhatt allowed the petition and quashed the impugned FIR against the petitioner.

Factual Matrix

In the matter at hand, the petitioner and the complainant both are the elected members of the Chotila Nagarpalika on the symbol of BJP. There was an exchange of words between both the petitioner and the complainant as the complainant was going to cast his vote in favour of the Congress Party. The petitioner had humiliated the complainant in front of other elected members, including the women members of the Chotila Nagarpalika. Therefore, an FIR was registered against the petitioner for the offences punishable under Sections 323 and 506(2) of the IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the SC and ST Act. Hence, the present petition was filed by the petitioner to quash the FIR filed against him.

Court’s Decision

Regarding the conduct of the complainant, the Court noted that the complainant approached the police station immediately after the incident, but he did not lodge the complaint at that time, the complaint was lodged 2 days after the incident. The Court said that the complainant waited for the direction of his higher authorities/ representatives and at this juncture, certain questions were required to be considered, such as: Who were the complainant’s higher authorities/representatives; Whose direction the complainant was following; Which was the actual advice; Why the complaint was not lodged on the same day; Was there any motivation to the complainant to lodge the impugned complaint at a belated stage, If yes, what was that motivation; Whether there was any ill-motive?

The Court said that the action of the complainant- that he went to the police station but did not lodge the complaint created a doubt and tilted the balance in petitioner’s favour. The Court also said that the petitioner had complained to the higher authorities of the political party-BJP against the complainant and therefore, the complaint was a counterblast of this action. The Court also perused the relevant provisions of the SC and ST Act and said that the offence must be committed against the person who is a member of the Scheduled Caste or Scheduled Tribe, however in the present case the complainant was indeed a member of the Scheduled Tribe but there was no evidence to show that the offence was committed against the complainant with the intention that he was a member of the Scheduled Tribe. Further, the Court stated that “unless the investigation indicates or reveals the intention of a person not belonging to Scheduled Caste or Schedule Tribe to commit any of the offences under Section 3 of the SC and ST Act, in order to oppress or insult or humiliate or subjugate or ridicule a member of Scheduled Caste or Scheduled Tribe as such person merely belongs to that caste, the offence under Section 3 of the Act cannot be invoked.”

The Court also added that if the motive for the crime is not a casteist attack, the person cannot be dragged for an offence under the SC and ST Act. While the Act is essentially meant for protecting the members of a scheduled caste or scheduled tribe from atrocity or oppression, at the same time, it cannot be allowed to be misused. It is a greater responsibility on the investigating officer to investigate such offence wisely and or very sharply and in a fair manner. Further, the Court said that even if it was accepted for a while that the alleged incident happened at a time when other members of the public were present, the question would still be; whether the petitioner committed the overt act with any intention to insult and intimidate the complainant on the account of he belonged to the scheduled tribe?

Therefore, the Court was of the view that allegations in the impugned FIR did not constitute criminal offence under the SC and ST Act. The Court also considered the conduct vis-à-vis the allegations vis-à-vis the political issues, that the complainant as well as the petitioner belonged to one political party – BJP and both were claiming the post of President of the Nagarpalika. But, since the party leaders chose the petitioner as a President, the complainant kept a grudge and filed the complaint after two days from the alleged incident. It was also noted that except the complainant, no one had lodged the complaint against the petitioner. Therefore, the Court said that under such circumstances, the impugned complaint was required to be quashed and set aside by exercising the powers under Section 482 of the CrPC in favour of the petitioner.

The Court conclusively said that with great pain it is noted that, many a time, the provisions of the SC and ST Act are being misused, some time by the complainant and or some time by the authorities concerned and the present case was one glaring example. Here the place of offence is a public place i.e., the office of the Nagarpalika, there was no concrete material against the petitioner in the entire investigation, which attracts the provisions of the SC and ST Act. The Court said that prima facie, the complaint against the petitioner seemed a politically motivated complaint. In such a situation, the sufferer would be the non-scheduled caste and non-scheduled tribe qua these provisions, by which damage is caused to fabric of social harmony in the society. Therefore, the Court allowed the petition and quashed the impugned FIR.

[Jivanbhai Nagjibhai Makwana v. State of Gujarat, 2023 SCC OnLine Guj 2306, Decided on: 20-07-2023]

Advocates who appeared in this case :

For the petitioner: Advocate Kunal S Shah;

For the respondents: Assistant Public Prosecutor Soaham Joshi, Advocate Dhaval A Parmar.

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