Meenaben W/O Ashokbhai Jethanand ... vs State Of Gujarat

                                                                                           NEUTRAL CITATION




     R/CR.MA/19699/2021                                  ORDER DATED: 11/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 19699 of 2021

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             MEENABEN W/O ASHOKBHAI JETHANAND ASUDANI
                               Versus
                         STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1,2
MR PV PATADIYA(5924) for the Applicant(s) No. 1,2
MR YASH K DAVE(10269) for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 11/09/2023

                                    ORAL ORDER

1. Present petition is filed with a prayer to quash and set aside the impugned FIR No.11191040203571 of 2020 registered with Sardarnagar Police Station, Ahmedabad, and charge sheet, which has culminated into Criminal Case No.42332 of 2021 pending before learned 17 th Additional Chief Metropolitan Magistrate, Ahmedabad, and all further proceedings pursuant thereto.

2. The brief facts of the case are that the petitioners herein are residing at the given address since last 15 years.

It is alleged that since son of petitioner no.1 was in need of money, respondent no.2 had lent him money. Thereafter, on 4.9.2020, when accused no.1 met the complainant in market, Page 1 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined he told him to forget that amount and started quarreling.

Thereafter, petitioner no.1 also reached there and started quarrel with the complainant. It is also alleged that on 18.10.2020, when the complainant was offering food to the dogs, present petitioners and accused no.1 came there and asked the complainant to withdraw the proceedings filed by him and started abusing him. They have also threatened to implicate him in a false case. For this incident of 18.10.2020, complaint was filed on 21.10.2020.

2.1 It is also stated by the petitioners that even looking to the charge sheet papers, it is clear that statements of independent witnesses have not been recorded and no other material is produced.

2.1 It is also stated that petitioner no.1 has given complaint for harassment against respondent no.2, however, as nothing had happened, the petitioner had approached Police Commissioner and, thereafter, on 20.10.2020, his complaint was registered against respondent no.2. Accordingly, a cross complaint is also filed in the present case.

3. I have heard learned advocate, Mr.Patadiya for the petitioners and learned APP, Mr.Chintan Dave for the respondent-State.

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4. Mr.Patadiya, learned advocate for the petitioners has drawn my attention to the complaint filed by the petitioner on 20.10.2020. In that complaint, date of the incident is mentioned as 4.9.2020 to 20.10.2020. He has also drawn my attention towards the impugned complaint dated 21.10.2020 filed by respondent no.2, wherein also date of incident is stated to be from 4.9.2020 to 18.10.2020. He has, therefore, submitted that present complaint is filed subsequent to the complaint filed by petitioner no.1 and it is nothing but an abuse of process of law. He has further submitted that on bare reading of the complaint, no offence is made out and, merely filing of charge sheet does not suggest implication of the present petitioners, more particularly, when no specific allegations are made against present petitioners. He has further submitted that no specific role of present petitioners has been mentioned in the complaint and, therefore, he has submitted that in view of settled legal position and considering the facts of present case, it appears that present complaint is filed with a view to exert undue pressure on the present petitioners by launching criminal prosecution.

Therefore, he has prayed that in view of the judgment in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, present petition may be allowed.

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5. Though name of learned advocate, Mr.Vishal Anandjiwala is shown in the cause list as learned advocate for respondent no.2, and as per order dated 1.3.2023 also, Mr.Anandjiwala has waived service of notice for respondent no.2, today, he has shown unwillingness to argue the matter on the ground that he has not received papers. However, learned advocate for the petitioners has submitted that he has supplied entire set of papers twice to him. Learned advocate, Mr.Anandjiwala has left hearing on this ground.

The Court has taken note of it.

6. Learned APP, Mr.Chintan Dave, for the respondent-State has drawn my attention to the averments made in the FIR and also charge-sheet, wherein name of present petitioners is also mentioned by alleging specific role. It is alleged that petitioner no.2 has also threatened the complainant by mentioning that he will be implicated in a false case. He also submitted that considering the fact that cross complaint is filed, it shows that some incident has taken place, and, therefore, after investigating into complaint, charge sheet is filed and the trial has also commenced. He has submitted that prima facie case is made out against present petitioners and they can raise their defence during trial. He has also submitted that in view of catena of decision of Honourable Apex Court, the powers under Section 482 of Criminal Page 4 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined Procedure Code should be exercised very sparingly, more particularly, when no prima facie case for quashing is made out. In support of his submissions, he has relied upon decision in the case of Neeharika Infrastructure Pvt. Ltd.

versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315. In view of this, he prays to dismiss present petition.

7. I have considered rival submissions made by the parties. I have also considered the tenor of the complaint filed by the complainant and considered the decisions cited at bar. Before proceeding further, this Court may refer to the observations of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has illustrated the cases wherein inherent powers under Section 482 of the Criminal Procedure Code could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice and observed 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 Page 5 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined 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 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.

NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined (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 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."

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8. Considering the facts of the case, charge sheet is filed against present petitioners after due investigation as prima facie there is material against present petitioners. Even if the contention of the petitioners that the complaint is filed as a counter-blast to the complaint filed by the petitioners is believed, it helps the case of the prosecution because both the complaints indicate same time period of occurrence of incident and the nature of allegations is also by and large same. Considering the allegations made in the complaint, it is required to be decided at the time of trial, which has already commenced. Therefore, since prima case is made out against present petitioners and charge sheet is also filed, no case is made out to exercise powers of this Court under Section 482 of the Criminal Procedure Code. The petitioners can raise all the contentions during their defence at the time of trial. In the case of Neeharika Infrastructure Pvt. Ltd.

versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, the Hon'ble Apex Court has held 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 Page 8 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined pendency of the quashing petition under Section 482 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;

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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 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;

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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 encyclopedia 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;

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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;

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 Page 12 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined 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 broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India Page 13 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined 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."

9. The powers under Section 482 of the Criminal Procedure Code are to be exercised very sparingly. The Court has to remain cautious while exercising such power with a view to prevent the abuse of process of law. Upon bare reading of FIR, it cannot be said that no offence is made out or that such FIR is filed with mala fide intention and with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge and continuation of proceedings of FIR will amount to abuse of process of law. In the present case, prima facie, Page 14 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023 NEUTRAL CITATION R/CR.MA/19699/2021 ORDER DATED: 11/09/2023 undefined offence is made out on the bare reading of FIR. Not only that charge sheet is filed and trial has also commenced in present case. In view of the aforesaid decisions, I am of the view that this is not a case to entertain present petition for quashing of complaint. Accordingly, present petition is dismissed. Rule is discharged.

(SANDEEP N. BHATT,J) R.S. MALEK Page 15 of 15 Downloaded on : Sat Sep 16 16:47:59 IST 2023