Gujarat High Court
Mukeshbhai @ Shamal Maganlal Marwadi vs State Of Gujarat on 23 January, 2025
NEUTRAL CITATION
R/CR.MA/1335/2025 ORDER DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1335 of 2025
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MUKESHBHAI @ SHAMAL MAGANLAL MARWADI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. BK. RAJ(3794) for the Applicant(s) No. 1,2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/01/2025
ORAL ORDER
1. The present application is filed for the following prayers:
"(7.1) May Your Lordships be please to pass an order under Sec. 528 of BNSS for quashing of the impugned FIR No. 11207061240966/2024 dated 10.11.2024 registered before the Shehera Police Station of Panchmahal District for the offence punishable under section 309(4), 54 of BNS, 2023 and other consequential proceedings arising out of this complaint qua petitioner no.1 & 2.
(7.2) During the pendency of this petition for admission and final hearing, through an Ex-parte ad-interim relief, May Your Lordships be please to stay the further proceeding of the impugned FIR No. 11207061240966/2024 dated 10.11.2024 registered before the Shehera Police Station of Panchmahal District for the offence punishable under section 309(4), 54 of BNS, 2023 and other consequential proceedings arising out of this complaint qua petitioner.Page 1 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025
NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined (7.3) May Your Lordships be please to grant any other relief which may be fit and appropriate in the fact circumstances of the case."
2. Heard learned advocate Mr. B.K.Raj for the applicants and learned APP, Mr. Chintan Dave for the respondent - State.
3. Learned advocate for the applicants has submitted that on bare reading of the FIR, no believable offences are made out against the present applicants. He has further submitted that hire-purchase agreement is executed and the seizure of the vehicle from the person who has availed the facility from the Bank will not amount to any offence. He has further submitted by relying on the judgment of the Hon'ble Apex Court in the case of Charanjit Singh Chadha and Ors. Vs. Sudhir Mehra reported in (2001) 7 SCC 417 and has submitted that in para 17 of that judgment, it is observed that in case of hire-purchase agreement the repossession of goods as per the term of the agreement, may not amount to any criminal offence. He has further submitted that in view of the judgments of the Hon'ble Apex Court reported in 2013 6 SCC 740 as well as 2007 12 SCC 1, the Court can exercise powers under Section 482 of the Cr.P.C. He has also relied on the judgment in the case of State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335 and Page 2 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025 NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined submitted that no offences are made out from the alleged incident whereby the present applicants have taken the possession of the vehicle in question and therefore, he prays that the continuation of the proceedings would amount to abuse of process of law and the matter is therefore required to be considered appropriately and the impugned FIR is required to be quashed and set aside. Therefore, he prays for passing of appropriate order in favour of the present applicants.
4. Learned APP, Mr. Dave has strongly opposed the contentions raised on behalf of the applicants by contending that on bare reading of the FIR, it transpires that the possession is taken over by the persons who have portrayed themselves as seizures of the concerned finance company and they have seized the Suzuki Motorcycle from the complainant and there are eye-witnesses of the incident who have supported the case of the complainant. He has further submitted that prima facie investigation is required to be carried out as offences are made out against the applicants and therefore, no interference of this Court is required in the present matter.
5. I have considered the rival submissions made at the bar, I have also considered the provisions of Sections 309(4) and 54 of the Bharatiya Nyaya Sanhita, 2023, which read as Page 3 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025 NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined under:
"309(4). Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
54. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
6. It is also required to be noted that from the tenor of the FIR, it clearly transpires that the applicants have intercepted the complainant when he was going with his friend and thereafter, seized the vehicle, though the complainant resisted to do so and while taking the motorcycle, the applicants have threatened the complainant that since you are not paying the installment of the vehicle, we are seizing the vehicle as a seizure of the finance company and if the complainant is approaching the applicants, they will cause injury to the complainant by beating him. These averments are also witnessed by the friend of the complainant - Hiteshbhai and on bare reading of the FIR, the offences are made out against the present applicants. There is no quarrel about the factum that when Page 4 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025 NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined the agreement is executed in favour of the finance company, the finance company is entitled to recover the possession of the vehicle if any default is committed pursuant to the agreement by the borrower, however, that can be done in accordance with law and not in the manner which was followed in the present case.
7. Considering the above stated facts, prima facie, ingredients are satisfied as the complainant was intercepted without issuing any prior notice and it can be said that the possession of the vehicle is taken forcefully without following any process of law. Therefore, the judgments relied on by the learned advocate for the applicants are not helpful to the case of the present applicants.
7.1 Furthermore, it is needless to say that the Hon'ble Apex Court has given specific directions in the case of Neeharika Infrastructure Pvt.Ltd. V/s State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 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 Page 5 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025 NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined 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;
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;Page 6 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025
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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;
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; Page 7 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025
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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 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 Page 8 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025 NEUTRAL CITATION R/CR.MA/1335/2025 ORDER DATED: 23/01/2025 undefined 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 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. In view of the foregoing reasons, this Court is of the opinion that the present application lacks merit and the same is required to be dismissed.
9. Accordingly, the present application is dismissed.
(SANDEEP N. BHATT,J) SLOCK BAROT Page 9 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:22:45 IST 2025