Gujarat High Court
Suresh Haturam Nandwani vs State Of Gujarat on 13 December, 2023
NEUTRAL CITATION
R/CR.MA/22760/2021 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 22760 of 2021
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SURESH HATURAM NANDWANI
Versus
STATE OF GUJARAT
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Appearance:
MR. NITESH G JAIN(7178) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/12/2023
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of notice of Rule on behalf of respondent - State.
2. The present application is filed for seeking the following the main reliefs:
"(A) YOUR LORDSHIPS be pleased to call for the records and proceedings of FIR being C.R. No. 1-
11210055211552/2021 registered with Salabatpura Police Station, Surat, for the offences punishable under Section 354 A and 509 of Indian Penal Code in the interest of justice; and after perusing the same be pleased to quash the impugned FIR and proceedings Page 1 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined pursuant thereto, in the interest of justice; (B) YOUR LORDSHIPS be pleased to stay the further proceedings of FIR being 1-11210055211552/2021 registered with Salabatpura Police Station, Surat, and after perusing the same be pleased to Stay the impugned FIR and all proceedings pursuant thereto Ahmedabad pending the admission, hearing and final disposal of this application;"
3. Brief facts of the case as per the case of the applicant in this application are as such that on 10/09/2021 and on 11/09/2021, the present complainant and other officers came to detain the applicant herein. It is further the case of the applicant in this application that the present applicant was not cooperating with police officers and was also misbehaving with them and the people around. He did not sign the arrest memo, when head constable came to arrest applicant in another FIR. The applicant was then taken to the hospital for RTPCR test before producing into court and even there he started shouting and misbehaving, the female constable tried to calm him but in response, he removed off his clothes to embarrass her. Hence, the FIR is Page 2 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined lodged. It is further the case of the applicant in this application that he is social activist and he has complained against salabatpura Police station on social media platform so only to take revenge from him, this present FIR is lodged arraigning present applicant.
4. Heard Mr. Nitesh G. Jain, the learned counsel for the applicant and Mr. Soaham Joshi, the Additional Public Prosecutor (APP) for the respondent No.1 - State of Gujarat.
5. The learned counsel for the applicant has drawn my attention towards the averments made in the impugned F.I.R. as well as some news items published in the newspaper. He has submitted that since the applicant, being a journalist, has raised voice against the police authority, the applicant is falsely implicated in the incident. Furthermore, he has submitted that as such, no incident has taken place, but with a view to pressurize the applicant, such false complaint is lodged against the applicant herein. Furthermore, he has submitted that on bare reading of the impugned F.I.R., no ingredients of Sections 354A & 509 of the Indian Penal Code are Page 3 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined satisfied. Therefore, he has prayed that the present be allowed by quashing the impugned F.I.R. and proceedings pursuant thereto, as the F.I.R. is lodged with malafide intention and, therefore, he has submitted that in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana v/s Bhajan Lal reported in AIR 1992 SC 604, this Court should exercise the powers under Section 482 of the Cr.P.C. by allowing the prayers made in the present application to prevent the abuse of process of law.
6. Per contra, the Assistant Public Prosecutor (APP) representing respondent No.1 has contended that charge- sheet has already been filed in the matter after due investigation. The present complaint was initiated by one constable, who alleged that, on a particular day, the accused exposed himself by removing his clothes in front of a lady constable and made obscene gestures. Furthermore, the learned APP has stated that the charge-sheet has been filed, charges have been framed, and as per the online status, the matter is lastly listed before the trial court on 8.11.2023, which is at the stage of framing charges. Consequently, he has contended that Page 4 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined considering the seriousness of the allegations, taking into account the completion of the investigation, and the filing of the charge-sheet, prima facie case has been established against the applicant. The learned APP has contended that, now that the criminal case is registered and in progress, specifically at the stage of framing of charges, the Court should refrain from exercising its powers under Section 482 of the Cr.P.C. and allow the accused person to face the trial proceedings. Moreover, the learned APP has disputed the applicant's submission regarding pressurization and victimization for his raising voice against the government, which resulted into filing of such F.I.R., asserting that such claims lack a factual basis and no material has been placed on record, which remotely supports the case of the applicant. Additionally, he has contended that during the investigation of prior offence registered at the Salabatpura Police Station, Surat, under C.R. No.11210055211549 of 2021 (Section 186 of the I.P.C.) and another F.I.R. being C.R. No.11210055211551 of 2021 (Sections 323, 504, 506(2) of the I.P.C.), the accused created disturbance by undressing in front of a lady constable. Hence, the learned APP has argued that this conduct of the applicant demonstrates Page 5 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined the accused's highhanded conduct and disturbed as well as ill-mental state. Consequently, he prays for the Court not to exercise its powers under Section 482 of the Criminal Procedure Code.
7.1 I have considered the rival submissions made at the bar by the respective parties. I have also considered the material available on the record. Additionally, I have taken into account the earlier report dated 3.10.2023 tendered by the concerned Police Station, wherein it is specifically stated that the incident has taken place during the investigation of the earlier two offences registered at the Salabatpura Police Station, Surat, being C.R. No.11210055211549 of 2021 (under Section 186 of the I.P.C.) and another F.I.R. being C.R. No.11210055211551 of 2021 (under Sections 323, 504, 506(2) of the I.P.C.). At that time, the present applicant
- accused began behaving in an unusual manner by removing his clothes in front of a on duty lady constable and also exhibited some obscene gestures. This, prima facie, constitutes an offence under Section 354A & 509 of the Indian Penal Code, as follows:
Page 6 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023
NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined "Section 354A in The Indian Penal Code:-
354A. Sexual harassment and punishment for sexual harassment.--(1) Aman committing any of the following acts--
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 509 in The Indian Penal Code:-
509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that Page 7 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
7.2 Considering the fact that now the ingredients of the offences of abovementioned sections are attracted in view of the allegations made in the F.I.R. It is also relevant to note that now the charge-sheet has already been filed, and the criminal case is also registered and the proceeding of trial is at the state of framing of charge.
7.3 Further, in the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/ or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Page 8 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been Page 9 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage Page 10 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;Page 11 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023
NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with Page 12 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and Page 13 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
7.4 It is required to refer the judgment of the Hon'ble Apex Court in the case of Iqbal Alias Bala & Others versus State of Uttar Pradesh reported in (2023) 8 SCC 734, more specifically, paragraphs 6, 7 & 8 are relevant, as under:
"6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether we should quash the FIR?
7. It is relevant to note that the victim has not furnished any information in regard to the date and time of the commission of the alleged offence. At the same time, we also take notice of the fact that the Page 14 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined investigation has been completed and charge sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the Trial Court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge sheet is ready to be filed before the competent court. In such circumstances, the Trial Court should be allowed to look into the materials which the investigation officer might have collected forming part of the charge sheet. If any such discharge application is filed, the Trial Court shall look into the materials and take a call whether any case for discharge is made out or not.
8. At this stage, we express no final opinion as regards the truthfulness of the allegations levelled in the FIR."
7.5 In light of the aforementioned discussions, this is a fit case where the Court should not exercise its discretion in favor of the applicant. More particularly, when prima facie, it transpires that the applicant is not acting and showing normal behaviour and is allegedly Page 15 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023 NEUTRAL CITATION R/CR.MA/22760/2021 ORDER DATED: 13/12/2023 undefined indulging in activities that create a disturbance of law and order. Therefore, no case is made out to exercise my power under Section 482 of the Criminal Procedure Code.
8. Accordingly, the present application is dismissed with no order as to costs. Rule stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 16 of 16 Downloaded on : Mon Dec 18 20:36:06 IST 2023