Hardas Malde Kadchha vs State Of Gujarat
2021 Latest Caselaw 17073 Guj

     R/CR.MA/13922/2015                                       ORDER DATED: 29/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 13922 of 2015

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                      HARDAS MALDE KADCHHA & 1 other(s)
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PM LAKHANI, ADVOCATE for the Applicants
MR DM DEVNANI, APP for the Respondent No.1 - State
NONE for the Respondent No. 2 - Original Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 29/10/2021

                                    ORAL ORDER

1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 ('the Code' for short), in which, the applicants have prayed that the FIR being C.R.-II No.33 of 2015 lodged against them in connection with the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code ('IPC' for short) with the Madhavpur Police Station, District : Porbandar and all other subsequent proceedings qua the petitioners, be quashed and set aside

2. I have heard Mr.P.M. Lakhani, learned advocate for the applicants and Mr.D.M. Devnani, learned Additional Public Prosecutor for the State. Though served, opponent No.2 - original complainant has chosen not to appear and contest this application before this Court.

3. Learned advocate for the applicants has submitted that the present application is filed by two applicants, who has arraigned

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as accused Nos.3 and 4, respectively, in the impugned FIR. He has drawn the attention of this Court to the contents of the FIR, where one Suresh Pola Khunti has given a complaint by alleging that, when he was in his field with his friends, at that point of time, one Deva Hathiya Parmar and Hamir Hathiya Parmar alongwith present applicant No.1 - Hardas Malde Kadchha had arrived at the place of incident and tried to cut the trees from the field of the complainant, the complainant has resisted them, therefore, they have started abusing the complainant and has also started beating him by feast blows; and during that conversation, cell phone of accused No.1 - Devabhai had rung and it was on speaker, the complainant has heard that somebody was called from the outside that, 'I am Bhanu Masri and kill all the three' and therefore, the complaint is lodged against four persons and the present applicants are accused Nos.3 and 4. Learned advocate for the applicants has drawn further attention to another complaint filed by one Devabhai Hathiyabhai Parmar against Sureshbhai Khunti and two other persons viz., Rameshbhai Tarkhala and Kamleshbhai Khunti. Said Sureshbhai Khunti is a complainant of C.R.- I No.32 of 2015. Said complaint is lodged under Sections 326, 504 and 114 of the IPC, where he has stated that other three persons named in the complaint has beaten him with the handle of the paw and accordingly, he has filed the complaint against them. Learned advocate for the applicants has submitted that, even the complaint which is the subject matter of the present application, is read as a whole, totally unbelievable story is created by the complainant by naming three persons who were present at the spot of incident and also by creating concocted story that another person i.e. present applicant No.3 Bhanu Masri who has seen such incident from some distance and he rang up one of the accused and has given instructions to kill the complainant and others. Learned advocate for the applicants has submitted that the present complaint is nothing

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but abuse of process of law and totally unbelievable story is created by the complainant. He has further drawn the attention to the documents annexed with the application, the details of the mobile call record between the present applicant No.2 and has submitted that at the time of incident, no call is made by the present applicant No.2 to any of the persons named in the FIR. He has further drawn the attention to the document - extract of the muster role of the GSRTC and has submitted that, applicant No.1 is serving as a Driver and he was on duty at the time of alleged incident. Even the trial Court has granted anticipatory bail to the present applicant No.2 on the ground alibi also. Learned advocate for the applicants has submitted that the powers under Section 482 of the Code may be exercised in favour of the applicants and the impugned FIR be quashed.

4. Learned APP has supported the contents of the FIR and has submitted that prima facie case is made out from the complaint itself and extra-ordinary powers under Section 482 of the Code may not be exercised in favour of the applicants, in the facts of the present case, however, he has fairly submitted that from the documents in support of the present application would prima facie indicate that involvement of the present applicants in the offence in question are doubtful.

5. Respondent No.2, who is original complainant, though served, has chosen not to appear before this Court, which indicates that he has less interest in pursuing the complaint before this Court.

6. Having heard learned advocates for the respective parties and having gone through the material produced on record, it transpires that the applicant No.1 who is Driver of GSRTC, was on

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duty as a Driver and was on his route at some other place than the place of incident, then his presence cannot be believable. From the presence of opponent No.2, which also prima facie supports the say of applicant No.2 that he has never called to any of the accused during that time when such alleged incident has happened. Moreover, if we look at the contents of the FIR, the part of the story cannot be denied prima facie, but it appears that the involvement of present applicants are prima facie not believable in the facts and circumstances and more particularly, the allegations levelled against them. It is also very strange that during such scuffle between the parties, at the scene of offence, phone is received by one of the accused, put a cell phone on speaker, then the complainant has heard from - that 'I am Bhanu Masri and kill all three', prima facie, that part also seems very strange and very unusual and no prudent man can believe it. It seems that the prior complaint is lodged against the present complainant - Sureshbhai Polabhai Khunti, which is being CR-I No.32 of 2015 on 03.07.2015 by one Devabhai Hathiyabhai Parmar. The present opponent No.2 has filed the present complaint (C.R.-I No.33 of 2015) is considered as merely a counter-blast and just to implicate everyone who is related to or connected to the complainant of the complaint being C.R.-I No.32 of 2015 - Hathiyabhai Parmar and present complaint is filed by respondent No.2 with an ill-motive and for wreaking vengeance on the accused. It also reveals from the record that the presence of applicant No.1 and involvement of applicant No.2 is ex-facie not believable at the time of commission of offence, as events narrated in the FIR by the complainant of the impugned complaint and by keeping in mind the raiot laid down in the judgment of the Hon'ble Apex Court in the case of State of Haryana versus Bhajanlal, reported in AIR 1992 SC 640. The relevant Para of which reads as under :

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"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 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 Article 226 or the inherent powers under Section 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 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in

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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 F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. 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."

It is noted that, the above ratio has also been taken into consideration time and again by the Hon'ble Supreme Court of India in catena of decisions.

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7. In view of above, I am satisfied that the impugned complaint deserves to be quashed by exercising the powers under Section 482 of the Code of Criminal Procedure, 1973, as the impugned complaint is nothing but abuse of process of law and no fruitful purpose will be served if the prosecution is permitted to continue.

8. For the reasons recorded above, the following order is passed.

8.1              This application is allowed.


8.2              The impugned FIR being C.R.-II No.33 of 2015 lodged

against them in connection with the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code with the Madhavpur Police Station, District : Porbandar is hereby quashed and set aside.

8.3 Consequently, the proceedings arising from the impugned complaint, if any, are hereby also quashed and set aside.

9. Rule is made absolute to the aforesaid extent.

(SANDEEP N. BHATT,J) M.H. DAVE