Gujarat High Court
Prakash Himmatlal Bhavsar vs State Of Gujarat on 2 April, 2025
NEUTRAL CITATION
R/CR.MA/17407/2015 ORDER DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17407 of 2015
==========================================================
PRAKASH HIMMATLAL BHAVSAR & ANR.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR. MAULIK NANAVATI FOR NANAVATI & CO.(7105) for the Applicant(s)
No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MR. MANAN S. MAHETA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Maulik Nanavati for the petitioner and learned APP Mr. Manan S. Maheta for the respondent-State. Though served, none appeared for the respondent No.2
2. By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the petitioners seek to quash the impugned FIR bearing C.R.-I-121 of 2015, registered with Katargam Police Station, Surat for offences punishable under Sections 409, 420 and 120-B of the Indian Penal Code (IPC).
3. Brief facts of the case are as under:-
3.1. The petitioners seek the quashing of FIR No. CR-I-121 of Page 1 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined 2015, registered on 01.09.2015 at Katargam Police Station, Surat, for alleged offences under Sections 409, 420, and 120-B of the Indian Penal Code (IPC). They contend that the impugned FIR is a flagrant abuse of the legal process, instituted in collusion with the police authorities, in brazen disregard of prior judicial directives. The complaint suffers from a fatal absence of privity of contract between the complainant and the petitioners, and there exists no credible evidence to suggest any prior dealings or transactions between the parties.
3.2. The police, in manifest excess of their lawful jurisdiction, proceeded with the registration of the FIR without any legally admissible evidence substantiating the purported sale of diamonds.
The investigation, as it stands, is devoid of any incriminating material warranting further proceedings against the petitioners.
3.3. The complainant, a partner in a diamond-cutting unit owned by his father-in-law, routinely engaged in the sale of polished diamonds through an intermediary, Rajesh Kirtilal Shah. Allegedly owing to Rajesh Shah's prior reliability, the complainant entrusted him with additional consignments of diamonds for sale, following which Rajesh Shah defaulted on payments. Upon confrontation, Rajesh Shah unsubstantially claimed that the diamonds had been supplied to the petitioners. Solely on the basis of this unverified assertion, the complainant initiated criminal proceedings against the petitioners, leading to the registration of the FIR.
3.4. Despite the lapse of considerable time, no charge sheet has been filed, underscoring the lack of prosecutable evidence. In light of these circumstances, the present petition has been necessitated to Page 2 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined prevent a gross miscarriage of justice and to secure the quashing of the frivolous and vexatious FIR.
SUBMISSION OF THE PETITIONERS:-
4. Learned counsel for the petitioner, referring to the judgment rendered by the Co-ordinate Bench in Special Criminal Application No. 2525 of 2015, submits that in an identical factual matrix arising from a separate FIR, the Co-ordinate Bench of this Court has quashed the FIR on the ground that no specific role has been attributed to the petitioner in the commission of the alleged offence.
4.1. Drawing attention to the contents of the FIR, learned counsel contends that the alleged transaction, as per the FIR, took place between the complainant and one Mr. Rajesh Shah. He further submits that, according to the FIR, the 'Kaccha Chitti' reflects that Mr. Rajesh Shah purportedly sold the diamonds to an unknown third party. However, upon inquiry, the complainant could not establish that Mr. Rajesh Shah had indeed sold the diamonds to a third party. It was only through an oral statement that the complainant was informed that the diamonds were allegedly sold to the petitioner. Consequently, the FIR came to be registered against the petitioner.
4.2. Learned counsel emphatically argues that there exists no material on record to prima facie implicate the petitioner in the commission of the alleged offence. He places reliance on the recent pronouncement of the Hon'ble Supreme Court in Imran Pratapgadhi v. State of Gujarat & Anr., reported in 2025 SCC Online SC 678, wherein it has been held that if an FIR does not disclose the Page 3 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined commission of a cognizable offence, the same is liable to be quashed at the nascent stage of the investigation. Accordingly, he urges this Hon'ble Court to allow the present petition.
SUBMISSION OF THE RESPONDENTS:-
5. Per contra, learned Additional Public Prosecutor (APP) vehemently opposes the petition, contending that the FIR, on the face of it, discloses the commission of a cognizable offence. He submits that, considering the facts and circumstances of the case, the investigation ought to be allowed to reach its logical conclusion. In light of these submissions, he prays for the dismissal of the present petition.
FINDINGS OF THE COURT:-
6. I have heard learned counsel for both parties and perused the record. I have also carefully examined the judgment rendered by the Co-ordinate Bench in Special Criminal Application No. 2525 of 2015, wherein the Co-ordinate Bench quashed the FIR containing identical facts against the petitioner.
6.1. A perusal of the FIR reveals that one Mr. Rajesh Shah, who was acting as an intermediary, procured diamonds worth Rs. 43,000/- from the complainant but failed to remit the corresponding payment. Mr. Rajesh Shah allegedly presented a ' Kaccha Chitti' to the complainant, indicating that he had sold the diamonds to a third party. However, upon inquiry, the complainant was unable to verify the sale of the diamonds to any third party through the said Page 4 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined intermediary. Subsequently, Mr. Rajesh Shah, without any corroborative evidence, orally claimed that he had sold the diamonds to the petitioner. However, such an assertion remains unsubstantiated by any factual foundation or documentary evidence.
6.2. At this stage, prima facie, no incriminating material is available on record to implicate the petitioner in the alleged offence. While it is true that the investigation is at a nascent stage, the FIR itself fails to disclose the commission of any cognizable offence against the petitioner. Moreover, even as per the complainant's own averments, he has no personal knowledge of the petitioner.
6.3. In light of these circumstances, this Court is of the considered view that the continuation of proceedings against the petitioner would amount to an abuse of the process of law. Recently, the Hon'ble Apex Court, in the case of Imran Pratapgadhi (supra), has reiterated this principle, wherein in Para 37 it has been held as under:-
"37. We fail to understand how the High Court concluded that the message was posted in a manner that would certainly disturb social harmony. Thereafter, the High Court gave a reason that the investigation was at a nascent stage. There is no absolute rule that when the investigation is at a nascent stage, the High Court cannot exercise its jurisdiction to quash an offence by exercising its jurisdiction under Article 226 of the Constitution of India or under Section 482 of the CrPC equivalent to Section 528 of the BNSS. When the High Court, in the given case, finds that no offence was made out on the face of it, to prevent abuse of the process of law, it can always interfere even though the investigation is at the nascent stage. It all depends on the facts and Page 5 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined circumstances of each case as well as the nature of the offence. There is no such blanket rule putting an embargo on the powers of the High Court to quash FIR only on the ground that the investigation was at a nascent stage. If such embargo is taken as an absolute rule, it will substantially curtail the powers of the High Court which have been laid down and recognised by this Court in the case of State of Haryana v. Bhajan Lal."
6.4. Even the Co-ordinate Bench, on identical grounds, allowed the petition in favor of the petitioners. This Court also takes cognizance of the order rendered in Special Criminal Application No. 2525 of 2015 by the Co-ordinate Bench, wherein the FIR accommodating same and alike allegation, was quashed and set aside.
7. It would be apposite to refer the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein, in Paragraph 102, it is held as under:
"102. 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 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 Page 6 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined 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 noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec. 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 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."
ORDER:-
8. In view of the above, the present petition deserves to be allowed, and it is accordingly allowed. The FIR, being C.R.-I, 121 of 2015, registered with Katargam Police Station, District: Surat, along Page 7 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025 NEUTRAL CITATION R/CR.MA/17407/2015 ORDER DATED: 02/04/2025 undefined with all subsequent proceedings arising from it, is hereby quashed and set aside qua the petitioners herein.
(J. C. DOSHI,J) MANISH MISHRA Page 8 of 8 Uploaded by MANISH MISHRA(HC01776) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:37:29 IST 2025