Priyankaben Bhupendrabhai Pandya vs State Of Gujarat

Gujarat High Court

Priyankaben Bhupendrabhai Pandya vs State Of Gujarat on 10 February, 2025

                                                                                                                      NEUTRAL CITATION




                            R/SCR.A/2312/2024                                           ORDER DATED: 10/02/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2312 of 2024

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                                          PRIYANKABEN BHUPENDRABHAI PANDYA
                                                         Versus
                                                STATE OF GUJARAT & ORS.
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                      Appearance:
                      MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1
                      MR RAHUL K DAVE(3978) for the Applicant(s) No. 1
                      MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 10/02/2025

                                                              ORAL ORDER

1. The present petition is filed for seeking the following reliefs:

"a. Your Lordships be pleased to admit this petition.

b. Your Lordships be pleased issue writ of mandamus or any other appropriate writ direction or order to quash and set aside the FIR filed before Aanand Town Police Station being I CR No. 11215002240146 of 2024 u/s. 406 and 420 of the IP Code along with all the prior and subsequent proceedings there to qua the applicant.

c. Your Lordships be pleased to stay the further proceeding and investigation of the FIR filed before Aanand Town Police Station being I CR No. 11215002240146 of 2024 u/s.

NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 406 and 420 of the IP Codepending the admission and final hearing of this petition qua the applicant.

d. Your Lordships be pleased to grant any such other and further relief/s as deemed just and proper in the interest of justice"

2. Heard Mr. Kirtidev Dave, learned advocate for the petitioner and Mr. Chintan Dave, learned APP for the respondent - State.

3. Mr. Kirtidev Dave, learned advocate for the petitioner has referred towards paragraph No.7 of the present petition and has submitted that the complainant after making several attempts to file complaint before Petlad Rural Police Station, Lotiya Bhagole Police Station, Anand Town Police Station and LCB Police Station, and ultimately, the present FIR is registered by the Anand Town Police Station under Sections 406 and 420 of the Indian Penal Code. He has further submitted that essentially, there is some transaction by way of mortgage entered into by the wife of the present complainant with the present petitioner and thereafter, the present complaint has been filed with the view to Page 2 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined pressurizing the present petitioner by the complainant and, therefore, the same will amount to abuse of process of law. He has further submitted that FIR is registered after a long delay, which indicates that there is some fishy in the matter. He has further submitted that as narrated in the FIR that though Kiritbhai Patel, who is living in USA belongs to his village and he has helped him to meet with visa consultant and as the complainant is in need of money as she has filed application for visa through one Hetalbhai, she has taken money from the applicant and given property in the mortgage and, therefore, he has submitted that continuation of the proceeding pursuant to the complaint will amount to abuse of process of law.

4. Mr. Chintan Dave, learned APP for the respondent

- State has tendered the copy of the report received from concerned Police Station and has submitted that now, charge sheet is filed after proper investigation carried out by the investigating agency. He has submitted that from the papers of charge-sheet, it clearly transpires that prima facie, offence is made out and there is sufficient material available on the record, which Page 3 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined indicates that petitioner has committed offence by defrauding the complainant regarding the process of Visa.

He has therefore submitted that all the issues raised by the petitioner at the best can be considered at the time of trial, and no powers can be exercised at this stage.

5.1 I have considered the rival submissions made at the bar. Considering the tenor of the complaint, it transpires that there is complaint filed by one Arpitaben Vipulbhai Suthar against the present petitioner by alleging that the petitioner has demanded Rs.1,50,000/- by check and Rs.8,50,000/- in cash from Vipulbhai Suthar, who happens to be the relative of the complainant and thereafter, the visa is not granted and therefore, the amount which is taken towards granting of visa is also duped. Moreover, it is alleged in the FIR that petitioner has asked the husband of the complainant to create mortgage of some property and accordingly, the mortgage is also created for the property to complete the work, which is not completed by the present petitioner. I have considered the nature of such offences. It is fruitful to refer the provisions which are involved in the FIR under Sections 406 and 420 of the I.P.C., which reads as follows:

NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined "Section 406 in The Indian Penal Code, 1860:-

406. Punishment for criminal breach of trust.--

Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

420 in The Indian Penal Code, 1860:-

Cheating and dishonestly inducing delivery of property:-

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

5.2 Prima facie, on bare reading of the FIR, offence is made out. Considering the fact that after thorough investigation, charge-sheet is also filed, which prima facie established the case of the complainant and the Court is aware that the Court should exercise powers if the proceedings are found to be initiated without malicious intention or on bare reading of the FIR, no offence is disclosed or continuation of the proceeding will create undue hardship and amount to abuse of process of law.

NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined Considering the nature of the allegations and considering the offence involved in the present matter and considering the fact that now charge-sheet is also filed, I am of the view that no cause is made out for quashing of the impugned FIR as prima facie, the FIR satisfies the ingredients of the alleged offence and the section as alleged of the I.P.C.

5.3 Furthermore, 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 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 Page 6 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 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 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 Page 7 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 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 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;

NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined

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;

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 Page 9 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 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 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 Page 10 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 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 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 Page 11 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined 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."

5.4 At this stage, it would be fruitful to refer to the recent decision of the Hon'ble Apex Court in the case of Somjeet Mallick versus State of Jharkhand and others reported in (2024) 10 SCC 527, more particularly Paras :

15, 17and 18 thereof, which read as under :

" 15. Before we proceed to test the correctness of the impugned order, we must bear in mind that at the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry, as the case may be, are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, as the case may be, is made out.

NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined The correctness of the allegations is not to be tested at this stage.

17. It is trite law that FIR is not an encyclopaedia of all imputations. Therefore, to test whether an FIR discloses commission of a cognizable offence what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed or not. At this stage, the Court is not required to ascertain as to which specific offence has been committed.

18. It is only after investigation, at the time of framing charge, when materials collected during investigation are before the Court, the Court has to draw an opinion as to for commission of which offence the accused should be tried. Prior to that, if satisfied, the Court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by Page 13 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025 NEUTRAL CITATION R/SCR.A/2312/2024 ORDER DATED: 10/02/2025 undefined quashing the FIR."

6. In view of above observations as well as facts and and circumstances of the case, this Court does not find any merit at this stage to quash the impugned FIR.

This petition, therefore, needs to be dismissed and is dismissed accordingly.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 14 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:31:56 IST 2025