Gujarat High Court
Hiral @ Hiren Dhirubhai Korat vs State Of Gujarat on 16 January, 2025
NEUTRAL CITATION
R/SCR.A/190/2025 ORDER DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 190 of 2025
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HIRAL @ HIREN DHIRUBHAI KORAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HITESH B PRAJAPATI(13805) for the Applicant(s) No. 1
MR. SUMIT K PRAJAPATI(8867) for the Applicant(s) No. 1
MS. C.M. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/01/2025
ORAL ORDER
1. The present petition is filed for seeking the following main reliefs:
"(A) xxx.
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, quashing and setting aside the FIR being C.R. No. 11214020241125 of 2024 registered with Kamrej Police Station, Dist.: Surat Rural qua the petitioner; (C) YOUR LORDSHIPS pending hearing, admission and final disposal of this petition, may be pleased to stay the further proceedings of FIR being C.R. No. 11214020241125 of 2024 registered with Kamrej Police Station, Dist.: Surat Rural qua the petitioner;
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NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined (D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as are deemed fit by this Hon'ble Court, in the interest of justice;"
2. Brief facts of the case as per the case of the present petitioner are as such that the first informant states that the first informant is residing at the address mentioned in the FIR and is having business of artificial flower at ABC One Mall, Varachha, Surat. It is alleged in the FIR that on 2.5.2024 at around 9:00 a.m., when the first informant was returning from his shop, at that time, two unknown person near Patti Road came on motorcycle and stopped him and assaulted with iron pipe. It is also alleged in the FIR that then after 4-5 unknown people came on two motor cycle and they also started assaulting the first informant. It is also alleged in the FIR that one accused person struck him on the head and one other accused person gave blows on his left elbow and knee. It is also alleged in the FIR that one of the accused persons who was having revolver in his hand, snatched gold chain of first informant and threatened him and warned him to stay away from the case of Hiren Dhiru Korat and Himmat Popatbhai Savaj. Page 2 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025
NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined It is also alleged in the FIR that the said accused person also threatened to the first informant that if the first informant doesn't stay back from the case, he will be done to death. It is also stated in the FIR that then after the accused persons run away from the spot and subsequently, the first informant had taken to the hospital for treatment. It is also stated in the FIR that the first informant is a witness in one of the case filed by the Bhupendra Patel against the present applicant and, therefore, the said attack was carried out to pressurize the first informant to prevent from attending court and therefore the FIR was registered. 2.1 Furthermore, pursuant to the registration of the FIR, the present applicant apprehends his arrest, had preferred an application for anticipatory bail before the Court of Ld. District and Sessions Court, Surat being Criminal Misc. Application No. 5179 of 2024, the said bail application however the same was rejected by the concerned trail court, Surat vide order dated 26.07.2024. The applicant had then preferred an application for anticipatory bail before this Court being Criminal Misc. Application No. 15777 of 2024. The said anticipatory bail Page 3 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined however was withdrawn vide order dated 30.09.2024. Hence, this petition.
3. Heard Mr. R.R. Marshal, learned senior advocate with Mr. Sumit Prajapati, learned advocate for the petitioner, Mr. Dipak patel, learned advocate for the respondent No.2 - complainant and Ms. C.M. Shah, learned APP for the respondent - State.
4. Mr. R.R. Marshal, learned senior advocate with Mr. Sumit Prajapati, learned advocate for the petitioner has drawn my attention towards the allegations made in the FIR whereby the role of the present petitioner as well as one Himmatbhai Popatbhai Savaj is identical as, as per the allegation in the FIR, both of them have sent six unidentified persons to attack on the complainant, and thereby, they attacked the complainant with Spade and with Iron Rod and one of the accused has shown revolver to the complainant and has threatened the complainant by saying not to interfere in the case between the present petitioner Hiren Dhiru Korat and Himmat Popatbhai Savaj, otherwise, you will face consequences. Thereafter, those six unidentified persons Page 4 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined have looted golden chain and thereafter, the complainant has been taken to the hospital by 108 Ambulance and thereafter, the complaint has been filed. He has further submitted that on bare reading of the complaint, it does not inspire any confidence as presence of the present petitioner is neither found on the place of incident nor any other accused mentioned in the FIR as six unidentified persons are caught by the police during the course of investigation of the complaint, which is filed on 03.05.2024. He has also submitted that as such, the Co- ordinate Bench of this Court has, vide order dated 12.06.2024 in Special Criminal Application No.6395 of 2024, allowed the consent quashing petition filed by the co-accused - Himmat Popatbhai Savaj. Therefore also, there is no reason to continue the proceeding qua the present petitioner. He has further submitted that on bear reading of the FIR, the police has also unable to find out the accused, who has actually committed such loot and assaulted to the complainant and in absence of that, the proceeding against the present petitioner will amount to abuse of process of law and, therefore, he has submitted that continuation of the present proceeding would amount to abuse of process of law as the Page 5 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined complainant cannot use this complaint as armed twisting technique, more particularly, when he has entered into compromise with Himmat Popatbhai Savaj, who is having similar role as per the FIR and, therefore, continuation of the proceeding pursuant to the impugned FIR will amount to harassment to the present petitioner as well as an abuse of process of law. Hence, he has prayed for interference of this Court.
5. Mr. Dipak patel, learned advocate for the respondent No.2 - complainant has tendered copy of the relevant documents whereby he has submitted that one more complaint is filed by one Bhupendrabhai Parshottambhai Pate on 11.11.2019 against the present petitioner pursuant to fraud of garnet coin and pursuant to that, charge is also framed and thereafter, the present petitioner has entered into compromise with the complainant in that FIR of the year 2019 whereby the present complainant of present FIR has filed objection in that FIR and has submitted before the Court that FIR is not required to be quashed as he is also affected party and, therefore, due to that incident, there is direct enmity between the present complainant and present Page 6 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined petitioner as the application for quashing of that FIR of the year 2019 by way of consent quashing could not be allowed due to intervention of the present complainant in that FIR. He also submitted that prime facie, case is also made out and merely, settlement with Himmat Popatbhai Savaj, whereby his name is wrongly given, otherwise, he has no connection with the FIR of the year 2019 as he was never accused in those proceedings. Therefore, the statement is arrived at between the parties and complaint is quashed qua him and, therefore, he has submitted that when the persons, who have actually acted on the instructions of the present petitioner and assaulted the present complainant are yet not arrested, it is not proper to use discretion of this Court in favour of the present petitioner as prima facie, case is made out, which is required to be investigated thoroughly.
6. Ms. C.M. Shah, learned APP for the respondent - State has strongly opposed the submissions made at the bar by learned senior advocate for the petitioner and has tendered report received from Kamrej Police Station and has submitted that earlier also, there are antecedents by Page 7 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined way of FIR being C.R. No.10 of 1019 under Section 406, 409, 420, 120B and GPID Act against the present petitioner. She has further submitted that the petitioner has never co-operated with the process of investigation and remained absconded and now, further action has been taken pursuant to the application given by the Police before the Court and warrant is issued under Section 72 of the BNSS, 2023, the Investigating Officer repeatedly visited the resident of the petitioner as well as other places but he was not available or found and neither has co-operated the Investigating Officer in any manner. She has also submitted that considering the fact that pursuant to the earlier FIR, the present incident has occurred and, therefore, unless the involvement of the present petitioner, such incident could not have been taken place, merely non-arrest of the other accused person, who have committed the offence, is not a good ground to exercise discretion of this Court by quashing the proceedings at this stage as investigation is still to be progressed. She has further submitted that prima facie, offence is made out under Sections 323, 325, 397, 504, 506(2) of the Indian Penal Code as well as Section 25(1)(b) of the Arms Act and Section 135 of the G.P. Page 8 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined Act. Thought the presence of the petitioner is not found at the place of the incident, but it cannot be said that he has not sent some person on his behalf to assault the present complainant and, therefore, the matter is required thorough investigation. Considering the history and direct nexus with the earlier incident as the complainant has intervened in the earlier incident at the time of petition filed by the present petitioner for consent quashing, that is the root cause for the threatening the present complainant by doing assault with such deadly weapons including revolver by the unidentified persons at the behest of the present petitioner, and considering that the investigation is going and, therefore, no interference is required to be called for by this Court at this stage.
7. I have considered the rival submissions made at the bar. Though it is true that there is no personal presence of the present petitioner at the time of incident, but considering the nature of the incident and considering the nature of threats given at the behest of the present petitioner, it clearly transpires that the petitioner can be consider as mastermind of such incident, which has Page 9 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined taken place. It also transpires from the record as indicated by the learned advocate for the complainant that in earlier complaint, the complainant has objected the quashing of the FIR on the ground of consent given by the original complainant and, therefore, the present petitioner has believable cause to give threat through some unidentified persons and also by assaulting the complainant with a view to threaten him not to interfere in that case. Furthermore, when the investigation is going on and considering the papers available on the record, whereby the complainant has taken treatment in the hospital, and therefore, incident has taken place merely the other accused person could not be arrested by the Police due to some lackluster or erroneous approach of the concerned investigating officer, is not a good ground for interfering with the investigation at this stage, more particularly, there is strong material available on the record which indicates possibility of the involvement of the present petitioner. Therefore, the FIR is filed under the provisions of Sections 323, 325, 397, 504, 506(2) of the Indian Penal Code as well as Section 25(1)(b) of the Arms Act and Section 135 of the G.P. Act, and unless fulfledged investigation is carried out, it Page 10 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 undefined is too pre-mature stage to exercise my discretion in favour of the present petitioner, more particularly, there is some believable material produced before this Court which gives sufficient indication about the involvement of the present petitioner in the alleged offence, which requires further proper investigation by the concerned Investigating Officer. Therefore, the present petition lacks merit and therefore deserves to be dismissed considering then 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 11 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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 12 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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;Page 13 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025
NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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 14 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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 15 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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 16 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025 NEUTRAL CITATION R/SCR.A/190/2025 ORDER DATED: 16/01/2025 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."
8. Accordingly, the present petition is dismissed with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 17 of 17 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:05 IST 2025