Scheduled Castes & Scheduled Tribes; Govidbhai Dhanjibhai Makwana Vs. Tarun Amrutlal Sheth [Gujarat High Court, 07-10-2016]

Penal Code, 1860 – Ss. 153, 153 (a), 153 (b) & 505 (2) – Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 – Ss. 3 [1](ix) and 3 [1] (x) – Protection of Civil Rights Act, 1955 – Ss. 7[1](c) & (d) – No prior sanction as envisaged under Section 196 [1](a)CrPC is sought by the petitioner before filing of the complaint under Section 3 [1](c) and (d) of the Civil Rights Act. Nor any of the provisions of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act are attracted in the complaint. Resultantly, present Criminal Application fails.

Scheduled Castes & Scheduled Tribes

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA

7th October 2016

SPECIAL CRIMINAL APPLICATION No. 2851 of 2011

GOVIDBHAI DHANJIBHAI MAKWANA….Applicant(s) Versus TARUN AMRUTLAL SHETH & 1….Respondent(s) Appearance : Mr. JITENDRA MALKAN for Mrs. DHARITA P MALKAN, for Ms. KHUSHBOO V MALKAN, ADVOCATE for the Applicant(s) No. 1 Mr. MB RANA, ADVOCATE for the Respondent(s) No. 1

JUDGMENT

This writ petition, preferred under Articles 226 & 227 of the Constitution of India, calls in question the Order dated 17th September 2011 passed by the learned 3rd Additional Sessions Judge, Banaskantha at Palanpur in Criminal Revision Application No. 61 of 2009, which is impugned herein, whereby the Revision Application preferred by the petitioner against the order dated 11th August 2009 passed in Criminal Case No. 6805 of 2009 by the learned Chief Judicial Magistrate, First Class, Palanpur was rejected.

Succinctly, the facts of the present case are that on 19th December 2008, the respondent no. 1, who is an Editor, Publisher & Owner of “Rakhewal” newspaper, published an article in its daily newspaper, making derogatory remarks against the scheduled castes and scheduled tribes. Being aggrieved and dissatisfied, the petitioner preferred Criminal Case No. 6805 of 2009 before the learned Chief Judicial Magistrate, Palanpur on 11th August 2009, which eventually came to be rejected by the trial Court vide Order dated 11th August 2009. Aggrieved by the order, petitioner preferred Criminal Revision Application No. 61 of 2009 under

Sections 397 & 398 of the Code of Criminal Procedure, 1973

[“CrPC” for short] before the Sessions Court, Banaskantha, which too came to be dismissed vide Order dated 17th September 2011 passed by the learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur, giving rise to filing of present writ petition.

Heard learned advocate Mr. Jitendra Malkan appearing with learned advocate Ms. Khusbhu V. Malkan for the applicant; learned advocate Mr. M.B Rana for the respondent no. 1 and learned APP Mr. Rutvij Oza for the respondent no.2-State of Gujarat.

It was submitted by learned advocate Mr. Jitendra Malkan appearing for the applicant that the learned Chief Judicial Magistrate, Palanpur as well as learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur have committed grave error in rejecting Criminal Case No. 6805 of 2009 by order dated 11th August 2009 and Criminal Revision Application No. 61 of 2009 by order dated 17th September 2011. That, the contents of the article written and published by the respondent no. 1 are unambiguous and derogatory against the castes other than the Brahmins. That, by publishing the article the respondent no. 1 has tried to humiliate the teachers hailing from backward classes. That, the orders passed by both the Courts below are contrary to evidence on record and bad in law. The petitioner has got an extra ordinary prima facie case as the article shows the hatred mind of the respondent no. 1 towards castes other than Brahmin. Hence, it was requested to quash and set-aside the impugned order dated 17th September 2011 passed by the learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur confirming the order dated 11th August 2009 passed by the learned Chief Judicial Magistrate, Palanpur in Criminal Case No. 6805 of 2009.

Per contra, learned advocate Mr. M.B Rana appearing for the respondent no.1 vehemently opposing the submissions made by the learned advocate for the petitioner urged that this petitioner has never approached this Court for violation and or breach of any fundamental rights, but has challenged the orders passed by the Courts below, and therefore, this petition is not maintainable under Article 226 of the Constitution of India. He has further urged that before notice was issued by the petitioner on 13th July 2009, as he is a practicing advocate, for the publication of the alleged article in the daily newspapers “Rakheval” on 19th December 2008. That, the entire proceeding was initiated by the petitioner after passing of seven months from the date of actual publication of the said article. That, the proceedings are pre-planned which shows abuse of process of law, commenced with mala fide intention. He has further submitted that the respondent no. 1 on receipt of the said legal notice on 16th September 2009 has tendered his apology in “Rakheval” newspaper saying that there was no intention by “Rakheval” or by he himself to give a slightest intention to hurt feeling of any body or to insult anybody in any manner. That, he is not the owner of the said article. That, neither he nor “Rakheval” publication agrees with the views of the author of the said article. Further, it is urged that article which was published is provided by an author of book “Sanmarganusari” – publication of Samast Mahajan Prakashan. The said book is compilation of the articles, which are already published in different leading newspapers of the State. That, no ingredients of provisions of Section 153, 153 [a], 153 [b] and Section 505 (2) IPC or Sections 3 [1](ix) and 3 [1] (x) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 or Section 7[1](c) & (d) of the Protection of Civil Rights Act, 1955

are satisfied for any offence under the said provisions are attributed. The petitioner has tried to abuse the process of law as he is also the owner, author and publisher of the fortnightly newspaper “Police Mitra”. That, another Criminal case has been registered against the respondent no. 1 at Ahmedabad, being M. Case No. 1 of 2010 with Madhupura Police Station for the same allegations and offence, as in the present petition. That, two different complaints on the same cause of action would not be maintainable. That, initially the proceedings by the petitioner is just to settle the account, being a rival publication house. That, no previous sanction as envisaged under Section 196 [1] (a) of the Code of Criminal Procedure, 1973 of the State Government or Central Government; as the case may be, was sought by the petitioner before filing of the complaint. That, no Court of law can take cognizance for the offence punishable under Section 153 (1) & 505 IPC without prior sanction from the State Government. Ultimately, it was requested by him to dismiss the present writ petition.

Learned APP Mr. Rutvij Oza appearing for the respondent no.1-State extended support to the arguments advanced for and on behalf of the respondent no.2- complainant by adding that the petitioner herein is prima facie involved in the offence, as he had published the objectionable article in daily newspaper “Rakheval” which prima facie constitute an offence, and therefore, it was requested by learned APP to dismiss the present Application.

Having heard learned advocates appearing for the respective sides and considering the submissions made as well as documents placed on the record, it appears that the disputed article as attached and annexed to this petition as “R3” is part of the book “Sanmarganusari” published by Samast Mahajan Prakashan and the said book is compilation of various articles. Prima facie, the respondent no.1 is not author of the said book, as it appears from the record. However, the respondent no. 1 on receiving a legal notice from the petitioner herein on 16th September 2009, has tendered his unconditional apology by publishing it in “Rakheval” newspapers. It appears from the above apology tendered by the respondent no.1 that there was no intention of “Rakheval” newspaper or of the respondent no. 1 to hurt the feeling of anybody or to insult any one in any manner; even though the said article was just published in the newspaper. It is further declared by the respondent no. 1 that neither the deponent nor the “Rakheval” publication agree with any of the views of the author of the said article. Here, it will be necessary to refer to a petition preferred by the Criminal Misc. Application No. 6227 of 2011 preferred by the Trust, one of the Trustees, Author, Copyright Holder and distributors of the book “Sanmarganusari” for quashment of the complaint, being C.R No. I-170 of 2011 registered with Ellisbridge Police Station, Ahmedabad dated 20th April 2011 by the respondent no. 2 therein for the offence punishable under Sections 3 [1] (ix); 3 [1] (x) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 and under Section 7 [1] (c) of the Protection of Civil Rights, 1955 read with Section 153 [A], 500, 505 [1] (3) & 120-B of the Indian Penal Code, which this Court partly allowed by quashing the complaint qua applicants nos. 2, 4, 5 & 6 therein. Further, the statement of the petitioner that on the same cause of action, as a part of strategy, another criminal case was registered against the respondent no.1 at Ahmedabad, being M. Case No. 1 of 2010 with Madhupura Police Station, Ahmedabad containing the same allegation, as have been raised in the present case, is not denied or challenged by the petitioner. It also appears from the documentary evidence produced on record that the present petitioner is also a partner of S.K Jadav Associates, a Law Office and owner, editor and publisher of a fortnightly newspaper “Police Mitra”. Being a partner of the said associate, he has initiated legal proceedings against the respondent no. 1 which prima facie appears that is abuse of process of law. The said fortnightly newsletter “Police Mitra” is also published from Banaskantha district. It also transpires that on 15th August 2009, publication was given by way of an advertisement in “Police Mitra” newspaper to plan out further strategy of legal action against the respondent no.

1. It is impressed that the entire legal proceedings initiated against the respondent no. 1 is pupating and initiated to settle the account, being a rival publication house. Further, it also transpires that before filing of the complaint; as aforestated, no previous sanction of the State Government or Central Government is taken by the petitioner, as envisaged under Section 196 [1] (a) of the Code. It also appears that on this ground and others so pleaded, the learned trial Judge of the Courts below have not considered the arguments advanced for and on behalf of the learned advocate to initiate legal proceedings against the respondent no. 1 or to take cognizance; as requested.

The Apex Court in case of