R/CR.MA/5057/2023 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5057 of 2023
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MANOJBHAI KANUBHAI PATEL @ MANOJRAI ISHWARLAL THAKAR
Versus
STATE OF GUJARAT
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Appearance:
DEVANSHI P MALKAN(9307) for the Applicant(s) No. 1
VISMAY V MALKAN(9284) for the Applicant(s) No. 1
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 27/03/2023
ORAL ORDER
1. By way of this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, "the Cr.P.C."), the petitioner has prayed to quash and set aside the complaint being FIR No.11196036200456 of 2020 registered with Harni Police Station, District: Vadodara for the offences punishable u/s. 406, 420, 465, 468, 472, 120B, 196, 197, 188 of the Indian Penal Code and all other consequential proceedings.
2. Learned advocate appearing for the petitioner Page 1 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 submitted that complaint lodged the FIR against one Narayandas Bechardas Patel (Sadhu) for the alleged offences in the impugned FIR. It is alleged in the FIR that land bearing Survey No.757/15/1 admeasuring 3-86-48 sq. mtrs., situated in the sim of village Harni, Vadodara city was recorded in the name of one Vitthalbhai Ramdashbhai patel, who expired on 22.01.1975 leaving behind no heir and the said land came to the share of heirs of his real brothers. Thereafter, the complainant came to know that the above stated land has been recorded in the name of Narayandas Bechardas Patel. It is alleged in the complaint that said Narayandas and his associates forged and fabricated documents as such election card, pedigree and panchkyas and submitted them before the Revenue authorities and got the land transferred in his name. He therefore submitted that name of the petitioner came on record for the first time when the Investigating Officer Page 2 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 filed a charge-sheet and the Investigating Officer has made merely vague allegation that the petitioner helped Narayandas Bechardas Patel in forging the documents and therefore, there is no evidence to prove the allegation. He also submitted that the petitioner is falsely implicated in the present offence and he has nothing to do with the land in question or the parties interested therein and he has no association with the main accused Narayandas Bechardas Patel. He also submitted that there is nothing on record to show that the petitioner is involved or has played any role in the commission of the alleged offence. He submitted that therefore also, this is a fit case where discretion deserves to be exercised in favour of the applicants.
3. Learned APP for the respondent-State has resisted this on the ground that the powers under section 482 of Cr.P.C., are to be exercised by the Court sparingly and in an Page 3 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 appropriate case at an appropriate time.
Presently, the investigation in this case is going on and it is at a crucial stage, and therefore, the complaint may not be quashed.
4. Having heard learned advocate for the petitioners and learned APP for the respondent State, this Court notices that this request is made for exercise of inherent powers under section 482 of the Cr.P.C., which are very wide amplitude. These inherent powers can be exercised either to sure the ends of justice or to prevent the abuse of process of law.
However, it would dependent on the facts and circumstances of each case and no category is prescribed by the Court for the same. What is required to be considered is the nature and gravity of the offence. Heinous and serious offences, such offence of rape or dacoity or murder or the offence leading to serious injuries etc. may not be considered for the purpose of exercise of inherent powers. Page 4 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023
5. Ordinarily, it is expected that the category of commercial offences or disputes of mercantile and of civil nature or matrimonial disputes or disputes of partnership firms etc., the Court may consider to exercise these powers, when the parties have chosen to settle the disputes. The Court also need to record, whether the continuation of the criminal prosecution would cause extreme prejudice to the accused or would cause him injustice, if not allowed the quashment, even after the parties have settled all their disputes. These powers are required to be exercised sparingly, as stated above. Since, the offence against the society, it cannot be said to be a private FIR between the parties.
6. It appears from the allegations made in the impugned FIR that land bearing Survey No.757/15/1 admeasuring 3-86-48 sq. mtrs.,
situated in the sim of village Harni, Vadodara Page 5 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 city was recorded in the name of one Vitthalbhai Ramdashbhai Patel, who expired on 22.01.1975 leaving behind no heir and the said land came to the share of heirs of his real brothers. Thereafter, the complainant came to know that the above said land has been recorded in the name of Narayandas Bechardas Patel. It appears that said Narayandas and his associates forged and fabricated documents as such election card, pedigree and panchkyas and submitted them before the Revenue authorities and got the land transferred in his name. It also appears from the charge-sheet that the present petitioner helped Narayandas Bechardas Patel in getting the land in question transferred in his name by producing forged and fabricated documents before the Revenue Authority for their monetary benefits. It is not a matter of dispute that the investigation is till going on and it is at present at a crucial stage. Since, the investigation is Page 6 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 going on, it would be too premature for this Court to opine on any of the submissions made with regard to lopsided investigation. The Investigation Officer has also not submitted his final report, therefore, any of his comment on the same would be in the opinion of this Court is at a premature stage.
7. At this stage, in a recent decision of the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and Ors., reported in 2021 (19) SCC 401, is required to be referred to. After taking into consideration the earlier decision on exercising the powers under Section 482 of the Code of Criminal Procedure including the decision of State of Haryana V. Bhanaj Lal, reported in 1992 Supp (1) SCC 335 and others. The Hon'ble Surpreme Court has observed in Para 37 and 80, which are as under:
"37. Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in Page 7 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 detail the scope of the High Court powers under section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:
"102.(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 FIR 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 FIR 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 FIR 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
Page 8 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 (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."
In the above decision, the Apex Court came to the conclusion that, "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 of Cr.P.C and/or under 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 of Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C. and/or under section 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 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 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 Page 9 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 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 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 of 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;
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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 of 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 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 Page 11 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023 R/CR.MA/5057/2023 ORDER DATED: 27/03/2023 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 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."
8. Considering the allegations made in the impugned FIR, prima facie, the involvement of the petitioner in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. could be exercised in favour of the petitioner.
9. For the foregoing reasons, the petition is dismissed.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 12 of 12 Downloaded on : Tue Mar 28 20:46:14 IST 2023