Ashokbhai Thagiyabhai Vasava vs State Of Gujarat

Gujarat High Court

Ashokbhai Thagiyabhai Vasava vs State Of Gujarat on 19 February, 2025

                                                                                                            NEUTRAL CITATION




                           R/CR.MA/13724/2018                                  ORDER DATED: 19/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                          FIR/ORDER) NO. 13724 of 2018

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                                                ASHOKBHAI THAGIYABHAI VASAVA
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
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                      Appearance:
                      MR RUSHABH R SHAH(5314) for the Applicant(s) No. 1
                      NOTICE SERVED THRU CONCERNED POLICE STATION for the
                      Respondent(s) No. 2
                      MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
                      No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 19/02/2025

                                                            ORAL ORDER

1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside FIR being C.R.No.I - 67 of 2018 registered with Mandvi Police Station, Surat for the offences punishable under Sections 224, 225(A)(b) of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

2. That the complainant is working as a Clerk at Mamlatdar office at Mandvi and has also having extra charge of Jailor at Mandvi Sub-Jail. The complainant states that there are four accused in judicial custody out of which three were male members and one is female.

NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined 2.1 It is further case of the complainant that, on 08/07/2018, somewhere 8.00 in the morning, the complainant recebed a call stating that one of the accused, who was in judicial custody at Mandvi Sub- jail has fled from the jail. The said accused was under trial prisoner for an offence registered with Mandvi Police Station vide CR.No.48/2018.

2.2 The complainant states another accused who is in judicial custody from whom it was inquired and the complainant came to know that somewhere around 4.00 in the morning the said accused saw rods broken. At that t, the said accused raised hue and cried and the present applicant came there, who was a one Incharge of the Mandvi sub-jail. Based upon the above, the present FIR came to be registered.

3. Learned advocate Mr. Rushabh Shah for the petitioner would submit that the accused did not escape from the judicial custody of Sub Jail, Mandvi due to negligence of the petitioner. He would further submit that Sub Jail, Mandvi was become dilapidated and there was no proper guards and iron fence kept in the Sub Jail, Mandvi. Referring to various communications and information received from the RTI Act, learned advocate Mr. Shah would submit that it is admitted by the concerned authority that the condition of the Sub Jail, Mandvi was improper and no proper iron bar fencing was kept in Sub Jail, Mandvi , which has helped the accused to run away from the judicial custody. Referring to the Manual, he would submit that in view of provisions of the Manual, at least four security guards are to be kept on the bit for guarding the Sub Jail, Mandvi. He Page 2 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined would further submit that since there was no negligence on the part of the petitioner to help the accused Ashwinbhai to escape from the judicial custody, the charge levelled aginst the accused does not prove and the FIR lacks essential ingredients and thus, allowing the FIR to proceed further would abuse of process of law. He would further submit that at the most it is a case of dereliction of duty and that can be tried during departmental proceedings. Upon such submission, learned advocate Mr. Shah prays to allow this petition.

4. Per contra, learned APP would submit that insufficient police guards were deployed at the Sub Jail, Mandvi can be tested during the trial, but that cannot be the ground for scuttling the FIR at the initial stage. He would further submit that the CCTV footage has been called for during the investigation and the same has been sent to the FSL, which indicates that though the petitioner was deployed on the duty to guard the judicial custody of the accused, he helped and permitted the accused to escape from the judicial custody of the Sub Jail, Mandvi and therefore, prima facie, essential ingredients of the offences are made out against the accused. Upon such submission, he prays to dismiss the petition.

5. I have heard learned advocates for both the sides and also perused the contents of the FIR minutely.

6. It is not in dispute that when the petitioner was on duty at Sub Jail, Mandvi, the accused Ashwinbhai escaped from the judicial custody of Sub Jail, Mandvi. Admittedly, the accused escaped from the Sub Jail, Mandvi after removing the iron bar Page 3 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined fencing of Sub Jail, Mandvi. The FIR also indicates that lower part of the iron bar fencing has been removed by the accused and then, he escaped from the judicial custody. It is also revealed from the FIR that the petitioner checked the Sub Jail around 3 o'clock and then went to sleep. The statement of the accused from the judicial custody was recorded by the investigating officer on 25.7.2018, which indicates that the accused has broken the iron fence fitted with the iron bar and escaped from the custody and at that time, the petitioner was sleeping. Hence, the argument of the learned advocate for the petitioner that the jail became dilapidated and it helped the accused in escaping from the sub jail does not survive. If the jail is dilapidated, then besides accused Ashwinbhai, other three accused might have escaped from the judicial custody.

7. In Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra reported in 2021(19) SCC 401, the Hon'ble Apex Court, after reviewing serious of judgments, reached to the following conclusion:-

"23. 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 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 Page 4 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

33.1 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;

33.2 Courts would not thwart any investigation into the cognizable offences;

33.3 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;

33.4 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).

33.5 hile 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;

33.6 Criminal proceedings ought not to be scuttled at the initial stage;

33.7 Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

33.8 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;

33.9 The functions of the judiciary and the police are complementary, not overlapping;

33.10 Save in exceptional cases where non-

interference would result in miscarriage of justice, the Court and the judicial process should not interfere at Page 5 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined the stage of investigation of offences;

33.11 Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

33.12 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;

33.13 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;

33.14 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;

33.15 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 Page 6 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined investigate the allegations in the FIR;

33.16 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.

33.17 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.

33.18 Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within Page 7 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined 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. In this factual situation, learned advocate Mr. Shah failed to prove the innocence of the petitioner, as prima facie case is made out against the petitioner that due to negligence of the petitioner, the accused escaped from the judicial custody of Sub Jail, Mandvi.

9. This Court is quite conscious that power u/s 482 of the Code of Criminal Procedure, 1973 is extraordinary power and should be used sparingly, as the exercise of such power would scuttle the FIR at the threshold.

10. As far as submission of learned advocate Mr. Shah regarding duty of number of guards to be employed in Sub Jail, Mandvi is concerned, the same can be the issue of defence and cannot be helpful to the petitioner.

11. So far as submission of learned advocate Mr. Shah for the petitioner has submitted that at the most it is a case of dereliction of duty and that can be tried during departmental proceedings. Since in criminal case the evidence has to be proved beyond reasonable doubt and in departmental proceedings it is a case of preponderance of probability and therefore, both the proceedings can be held simultaneously even if the petitioner is exonerated from departmental inquiry. Thus, this submission does not survive.

NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined

12. In State of U.P. Vs. O.P. Sharma, (1996) 7 SCC 705, the Hon'ble Apex Court in para 11 to 14 held as under:-

"11. The question then is: whether the High Court is right in its exercise of inherent power u/s. 482 of the Criminal Procedure Code - This Court in State of Himachal Pradesh V/s. Pirthi Chand (Crl. A. 1752 of 1995) decided on 30.11.1995 held as under :

"It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge- sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception. It first has to get into the grip of the matter whether the allegation constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognisable offence. After the investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded u/s. 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provision which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is Page 9 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025 NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined availed of in laying a complaint or FIR itself does not disclose at all any cognisable offence the Court may embark upon the consideration thereof and exercise the power.

When the remedy u/s. 482 is available, the High Court would be loath and circumspect to exercise its extraordinary owner under Art. 226 since efficacious remedy u/s. 482 of the Code is available. When the Court exercises its inherent power u/s. 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilises the economy and causes grave incursion on the economic planning of the State. When the legislature entrusts the power to the police officer to prevent organised commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk. The accused will have field day in destabilizing the economy of the State regulated under the relevant provisions.

12. In State of Bihar V/s. Rajendra Agrawalla (Crl A. No. 66 of 1966) decided on 18.01.1996, this Court observed as under :

NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined "It has been held by this Court in several cases that the inherent power of the Court u/s. 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the Court comes to the conclusions that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the Court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out".

13. In Mushtaq Ahmad V/s. Mohd. Habibur Rehaman Faizi, 1996 1 JT 656, this Court held as under :

"... ..According to the complaint, the respondents had thereby committed breach of trust of Government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. In spite of the fact that the complaint and the documents annexed thereto clearly made out a prima facie, case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondent given out in their petition filed u/s. 482 of the Criminal Procedure Code vis-a-vis that of the appellant had entered into the debatable area of deciding which of the version was true, - a course wholly impermissible....".

14. We accordingly hold that the High Court has committed grave error of law in quashing the F.I.R. The High Court should be loathe to interfere at the threshold to thwart the prosecution exercising its inherent power u/s. 487 of the Criminal Procedure Code or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course."

NEUTRAL CITATION R/CR.MA/13724/2018 ORDER DATED: 19/02/2025 undefined

13. In the result, the petition fails and stands dismissed. Notice discharged. Interim relief, if any, granted earlier stands vacated.

(J. C. DOSHI,J) SHEKHAR P. BARVE Page 12 of 12 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:35:07 IST 2025