Mehul Bharatbhai Munshi vs State Of Gujarat
2022 Latest Caselaw 9792 Guj

      R/SCR.A/9172/2019                                 ORDER DATED: 06/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 9172 of 2019

==========================================================
                            MEHUL BHARATBHAI MUNSHI
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
for the Applicant(s) No. 1
MR SAGAR K MEHTA(5606) for the Applicant(s) No. 1
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 06/12/2022

                                     ORAL ORDER

1. By way of present writ-application the writ-applicant herein has prayed for calling of record and proceedings of C.R. No.I-23 of 2019 registered with Dariyapur Police Station, Ahmedabad and has also prayed for a direction to transfer the investigation of the alleged offence to the C.I.D. (Crime), Gujarat or L.C.B. Ahmedabad.

2. Brief facts stated by the applicant herein for the purpose of adjudication of the present application read thus :-

2.1 It appears that the present writ-applicant purchased the house from one Ramchandra Jadaval situated a Dariyapur, Ahmedabad and paid Rs.31,00,000/- amount towards

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

consideration and put his lock on the main door of the house. One day when the writ-applicant was passing from the aforesaid house, he saw that the door was opened and the lock was broken, and the writ-applicant entered in the house to inquire as to who has trespassed the property, a husband and wife, namely, Chemanlal and Ramilaben told him that they were the tenant of the said property for last 15 years and that the said property belongs to them and the writ-applicant was threatened not to enter in their property.

2.2 On 6.3.2019, the writ-applicant approached Dariyapur Police Station, Ahmedabad to register FIR against the accused persons, however the complaint of the writ-applicant was not registered by the Dariyapur Police Station, therefore the writ- applicant made a representation to the Police Commissioner, Ahmedabad at Shahibaug and narrated all the facts therein about illegal trespass by the accused persons and requested to lodge complaint against the accused persons.

2.3 On 9.5.2019, the representation of the writ-applicant was not heeded by the Police Commissioner, Ahmedabad and thereafter the writ-applicant preferred Special Criminal Application No.3491 of 2019 for lodgment of FIR, wherein by order dated 09.05.2019 there was direction to the respondent no.2 therein i.e. Commissioner of Police, Ahmedabad to depute

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

the person below the rank of Police Inspector and to lodge FIR.

2.4 It is the case of the writ-applicant that as a result of the order dated 9.5.2019 passed by this Court FIR being C.R. No.I- 23 of 2019 came to be registered with Dariyapur Police Station, Ahmedabad for the offence punishable under Sections 448 and 120B of the Indian Penal Code against Chamanlal Jivanlal Solanki and Ramilaben Chamanlal Solanki. It is further stated that though the aforesaid FIR came to be registered on 30.7.2019 the accused are neither arrested nor summoned. With the aforesaid grievance it is further stated that the accused are influential people and that they are not allowing proper investigation in the matter and, therefore, investigation be transferred as prayed for.

3. By order dated 15.10.2019 the writ-applicant was permitted to file additional affidavit with the Registry, since then the matter has been adjourned from time to time.

4. Today, also the matter was called out twice, the learned advocate appearing for the writ-applicant was not present in the first session. This Court has sent message to the learned advocate appearing for the writ-applicant, however the learned advocate for the writ-applicant is not present.

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

5. Heard Mr. Soham Joshi, the learned APP appearing for the respondent No.1 - State. Mr. Joshi, the learned APP has placed on record the police report dated 12.10.2022. Placing reliance on the said report it is submitted the FIR in question has culminated into the charge-sheet being Charge-sheet No.23 of 2019 dated 3.9.2019 and the same has culminated into the Criminal Case before the Chief Metropolitan Magistrate, Court No.10 being Criminal Case No.99001 of 2019 and the said case is to be taken up for hearing.

6. It is apposite to refer to the case law in the case of Priti Saraf and Anr. vs. State of NCT of Delhi and Anr., reported in AIR 2021 SC 1531, Paragraphs 23 to 28 read thus :-

"23.It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

24.The question which is raised for consideration is that in

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.

25.In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this Court in State of Haryana and Others v. Bhajan Lal and Others (supra). The relevant para is mentioned hereunder:-

"102. 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

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

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 FIR 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 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 FIR 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 FIR 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.

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

(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."

26.This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.

27.It has been further elucidated recently by this Court in Arnab Manoranjan Goswami v. State of Maharashtra and Others18where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

28.It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be

R/SCR.A/9172/2019 ORDER DATED: 06/12/2022

exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."

7. Considering the submissions advanced by the learned APP the FIR being C.R. No.I-23 of 2019 registered with Dariyapur Police Station, Ahmedabad for the offence punishable under Sections 448 and 120B of the Indian Penal Code has culminated into the Criminal Case No.99001 of 2019 the reliefs as prayed for are such which cannot be granted for the aforesaid reasons.

8. In view of above, no interference is called for and this Court is not inclined to exercise extraordinary jurisdiction under Section 482 of the Criminal Procedure Code, 1973. The present writ-application stands disposed of without going into the merits at this stage.

9. It is, however, kept open for the applicant to take all the contentions before the concerned Court.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED