Chhabaria Bharat Dhanrajmal vs State Of Gujarat

                                                                                              NEUTRAL CITATION




      R/CR.MA/14857/2021                                         ORDER DATED: 08/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 14857 of 2021

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                           CHHABARIA BHARAT DHANRAJMAL
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 08/11/2023

                                      ORAL ORDER

1. The present application is filed for the following reliefs:

"8(A) Be pleased to admit and allow this Criminal Misc.Application;

(B) Your Lordships may be pleased to quash and set aside the impugned FIR being C.R.No.I-01/2017 Kalupur Police Station, Dist.Ahmedabad for the offences u/s 406, 452, 467, 468, 114 of the Indian Penal Code, registered on 05/01/2017 in the interest of justice.

(C) Pending admission hearing and final disposal of this petition Your Lordships may be pleased to stay the further proceedings of the impugned FIR being C.R.No.I-01/2017 Kalupur Police Station, Dist.Ahmedabad for the offences u/s 406, 452, 467, 468, 114 of the Indian Penal Code, registered Page 1 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined on 05/01/2017;

(D) Pending hearing and final disposal of this application, police may be restrained from filing of the chargesheet qua the accused no.1 (present petitioner); (E) xxxx"

2. The brief facts leading to filing of this application are such that the impugned complaint came to be filed against the applicant and other accused by the respondent no.2-complainant alleging that the first informant purchased the Shop No.205 of Mahavir Complex admeasuring 174 sq.ft.situated at Kalupur Ward No.1, Survey No.4099-K against the consideration of Rs.5 lacs from the real brother of present petitioner, who is accused no.1 and she got the possession of the shop on 26.4.2016. It is further alleged in the complaint that the present petitioner is original accused no.2 executed the General Power of Attorney in favour of accused no.1 and on basis of that Power of Attorney, the accused no.1 sold out the shop by executing agreement to sale to the first informant. It is further alleged that on 17.9.2016, the complainant was called by the present petitioner at the shop no.205 and he informed that he has not executed any Power of Attorney in favour of the accused no.1. It is further alleged that police has not taken any action for the shop opened by the accused no.2 and thus, Page 2 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined present petitioner encroached upon the so called purchaser. It is this FIR which is prayed to be quashed by way of this application.

3. Heard learned advocate for the applicant, learned APP Mr.Dave respondent no.1-state. Though served, none appears for respondent no.2 to object the prayers prayed for in this application. Therefore, this application is decided finally today.

4. Learned advocate Mr.Joshi for the applicant submitted that prima facie, no case is made out against the present applicant who is shown as accused no.2 under the provisions of u/s 406, 420, 452, 467, 468, 114 of the Indian Penal Code; that from the plain reading of the FIR, for reasons best known to the complainant, the present applicant is roped into the complaint as an accused; that since the applicant has purchased the shop in the year 2013 by way of registered sale deed and paid the consideration by Account Payee Cheque to the original owner, the offence could not be registered for encroachment when the present applicant is in possession since 2013 and only because he is residing in Pune, Maharashtra and with a view to snatch away the valuable property, such complaint is filed.

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5. He has further submitted that the FIR is filed in the year 2017 and accused no.1 is absconding and his whereabouts are not found by the investigating agency and considering the fact that the applicant has not indulging in any activity as well as in the FIR, the proceedings should be quashed qua him.

6. He has further submitted that he has also given his specimen signature of his handwriting to the investigating agency but till this application is filed, no report from the FSL is obtained and now by passage of time, the report is received from the FSL by the investigating agency, which clearly indicates that the applicant is not involved in the alleged offence. Considering the same, he prays to quash the impugned FIR qua the applicant as no ingredients of the sections invoked are made out and no involvement of the applicant can be found from the above stated facts.

7. He relied on the judgment in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, a nd prayed to allow this application.

8. Learned APP Mr.Dave for respondent no.1-state has submitted that prima facie the applicant is made accused in the FIR and from bare reading of the FIR, the allegation Page 4 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined against the applicant is to the extent that he has signed the said document which is in dispute, but from the report of the FSL which is received during the course of investigation, the impugned document which is sent for the verification with the admitted signature of the applicant, it transpires that the applicant has not signed the document in question and therefore prima facie, at present there is no material against the present applicant, which can clearly establish his involvement in the said offence and more particularly no offence is made out under Sections 406 and 420 of the Indian Penal Code. He, therefore, prays that considering the material available on the record, appropriate order may be passed qua the present applicant only as original accused no.1 is absconding and is not available with the investigating agency.

9. I have considered the rival submissions made at the bar, also considered the provisions of the sections invoked in the impugned FIR and also perused the contents of the FIR. Essentially, the allegation against the present applicant who is made accused no.2 is about said bogus power of attorney whereby from the report received from the FSL, it clearly transpires that from the admitted signature of the applicant, it could not be established that the said document is signed by the present applicant before the Page 5 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined Notary.

10. Considering the material available on the record , that essentially the allegation is against accused no.1, that the complainant is not present before this Court to contest the prayers of the present application and considering the totality of facts and circumstances of the present application, and the judgment of the Hon'ble Apex Court in the case of Mahmood Ali and Others V/s State of U.P, and others, reported in 2023 SCC Online SC 950, paragraphs 13 and 14 of which reads as under:

"13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he Page 6 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

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14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--

"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

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6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.

NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."

(Emphasis supplied) And in the case of Bhajanlal (supra), wherein it is held as under:

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the Page 10 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 Page 11 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined without an order of a Magistrate as contemplated under sec.156(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 concerned 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." ,

11. I am of the opinion that this is a fit case to exercise inherent jurisdiction under Section 482 of the Code.

Accordingly, this application is allowed. The impugned FIR being C.R.No.I-01/2017 Kalupur Police Station, Dist.Ahmedabad as well as subsequent proceedings, if any, arising out of the Page 12 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023 NEUTRAL CITATION R/CR.MA/14857/2021 ORDER DATED: 08/11/2023 undefined same FIR are hereby quashed and set aside qua the applicant only. Direct service is permitted.

(SANDEEP N. BHATT,J) SRILATHA Page 13 of 13 Downloaded on : Thu Nov 09 20:44:44 IST 2023