Gujarat High Court

Najbhai Rambhai Basiya vs State Of Gujarat on 6 December, 2022

Bench: Vaibhavi D. Nanavati

     R/CR.MA/2941/2020                            ORDER DATED: 06/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 2941 of 2020

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                         NAJBHAI RAMBHAI BASIYA
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 06/12/2022

                              ORAL ORDER

1. Heard Mr. Chintan Popat, the learned advocate appearing

for the applicant and Ms. Vrunda Shah, the learned APP

appearing for the respondent No.1 - State.

2. By way of present application the applicant has prayed

for quashing of the complaint being Criminal Case No.292 of

2017 pending before the learned Judicial Magistrate First Class,

Dhari.

2. The applicant is aggrieved by the order dated 13.5.2013

of issuance of process by the learned Judicial Magistrate First

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Class, Dhari which is duly produced at page-18/A. The said

order dated 13.5.2013 of process has been passed after

initiating inquiry. The order of inquiry dated 10.7.2017 passed

below Ex.1 is duly produced at page-19.

3. Mr. Popat, the learned advocate appearing for the

applicant submitted that the dispute in question can be said to

be a civil dispute. It is further submitted that the transaction

in question is also an oral transaction. Mr. Popat, the learned

advocate submitted that on 31.10.2011 the respondent No.2

was interested in the said land and, therefore, entered into an

oral agreement to purchase the land by paying earnest amount

in cash amounting to Rs.3,51,000/- and that there is no

written agreement which was executed, as on that day there

was a holiday. Mr. Popat, the learned advocate submitted that

the Court below could not have issued process and no offence

can be said to have been committed by the applicant herein

under Section 406 and 420 of the Indian Penal Code.

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4. 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 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.

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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 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

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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. (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

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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 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."

5. In view of this Court the concerned Court issued the

process after inquiry and on an order passed below Ex.1 in

Criminal Inquiry No.13 of 2013. The concerned Court

considered the following, which reads thus :-

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"After considering the complaint of the complainant, verification on both, the statement submitted with the police investigation report and the complainant's arguments in writing below Ex.26 it was held that a land deal between the accused and the complainant was made on 31.10.2011 and that it was a deal for 50 bigha of land. That the complainant gave Rs.3,51,000/- in cash to the accused in presence of the witnesses and thereafter when the measurement of the land was carried out, it was found to be 28 bigha of land which was corroborated from the statement of the complainant and witnesses. While passing the order, it was taken into consideration that from the notice of Mark-3/1 the complainant issued to the accused to return the amount paid or to execute a sale deed as per the oral agreement. The acknowledgment slip of the same came to be produced at Mark-3/2 which was considered. It was also considered that the notice of the complainant was served to the accused. Further para-15 of the complaint was considered and wherein it was submitted that the accused did not reply to the notice issued by the complainant. In such circumstances, considering the fact and evidence on record, the concerned Court thought it fit to initiate action against the accused under Sections 406 and 420 of the Indian Penal Code and passed an order of issuing summons to the accused to appear in the proceedings under Sections 406 and 420 of the Indian Penal Code against the accused. Hence the following order is passed.

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-:: ORDER ::-

(1).. The present inquiry is ordered to be taken into a Criminal Case Register.

(2).. It is ordered to issue summons to the accused to appear for the proceeding under sections - 406 and 420 of I.P.C. against him.

(3).. The accused is ordered to furnish a surety of Rs.10,000/- with a personal bail bond of the same amount for his appearance during trial.

(4).. Upon production of a copy of the complaint and d. list and payment of the fees by the complainant, a process be issued to the accused.

Declared in open court today on this 10 th day of July, 2017 under my signature."

6. Having heard the learned advocates appearing for the

respective parties, in view of this Court the concerned Court

issued summons after due inquiry as referred above and passed

an order dated 10.7.2017 below Ex.1 in Criminal Inquiry No.13

of 2013, this Court is not inclined to exercise extraordinary