Nehal Hitendrabhai Patel vs State Of Gujarat
2022 Latest Caselaw 2111 Guj

           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL MISC.APPLICATION NO. 2648 of 2012

                                        With
                     R/CRIMINAL MISC.APPLICATION NO. 7764 of 2014

    FOR APPROVAL AND SIGNATURE:


    HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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    1Whether Reporters of Local Papers may be allowed to see the No
     judgment ?

2   To be referred to the Reporter or not ?                          No

3   Whether their Lordships wish to see the fair copy of the judgment No
    ?

4   Whether this case involves a substantial question of law as to the No
    interpretation of the Constitution of India or any order made
    thereunder ?

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                               NEHAL HITENDRABHAI PATEL
                                         Versus
                               STATE OF GUJARAT & 2 other(s)
    ========================================================
Appearance:
MR MB PARIKH(576) for the Applicant(s) No. 1
MR BS PATEL SENIOR ADVOCATE FOR MS SUBHADRA G PATEL(656) for the Applicant(s)
No. 1
MR RK RAJPUT for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 3
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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               CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                        Date : 23/02/2022

                                       ORAL JUDGMENT

1. Heard learned Senior Advocate Mr. B.S. Patel for learned Advocate Ms. Subhadra G. Patel on behalf of the petitioner in Criminal Misc. Application No. 7764 of 2014, learned Advocate Mr. M.B. Parikh on behalf of the petitioner in Criminal Misc. Application No. 2648 of 2012, learned Additional Public Prosecutor

Ms. Maithili D Mehta on behalf of respondent no.1- State and learned Advocate Mr. R.K. Rajput on behalf of respondent no.2 in both the matters.

2. By way of these petitions, the petitioners seek the following prayers, which are specific to both the petitions:

Criminal Misc. Application No. 2648 of 2012

20. A. This Honble Court may be pleased to admit and allow this application;

B. This Hon'ble Court may be pleased to quash and set aside the offence registered with the Naranpura Police Station, Ahmedabad being C.R. No. I-630 of 2007 dated 25.10.2010 under Sections 323, 324,506(2) and 114 of the Indian Penal Code and Section 135 of the Bombay Prohibition Act and be pleased to set aside the further proceedings (charge-sheet) ( Annexure -B) instituted upon the said complaint, qua the applicant.

Criminal Misc. Application No. 7764 of 2014.

15. (A) Your Lordships may be pleased to admit and allow this application.

(B) Your Lordships may be pleased to quash and set aside the Criminal Case No. 2321 of 2011 pending at the file fo learned Additional Chief Metropolitan Magistrate, Court No. 9, Ahmedabad arising our of FIR being I- C.R. No. 630 of 2007 registered with Naranpura Police Station for the offences punishable under Sections 323, 324, 506(2) and 114 of the Indian Penal Code read with Section 135(2) of the Bombay Police Act and the charge-sheet filed in the same proceedings;

(C) Your Lordships further be pleased to quash and set aside the impugned judgement and order dated 22.05.2014 passed by the learned Additional Sessions Judge, Court No. 12, Ahmedabad in Criminal Revision Application No. 50 of 2014 and confirmed the order dated 18.11.2013 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 9,

Ahmedabad application below Exh. 2 in Criminal Case No. 2321 of 2011.

3. Insofar as Criminal Misc. Application No. 2648 of 2012 is concerned, the petitioner inter alia prays for quashing of impugned FIR being C.R. No. I-630 of 2007 registered with the Naranpura Police Station on 25.10.2010 for offences punishable under Sections 323, 324, 506(2) and 114 of the Indian Penal Code read with offence punishable under Section 135(2) of the Bombay Police Act whereas in Criminal Misc. Application No. 7764 of 2014, the petitioner, inter alia seeks for quashing of Criminal Complaint No. 2321 of 2011 arising from the FIR referred to hereinabove. The petitioner also seeks for quashing of impugned order dated 22.05.2014 passed by the learned Additional Sessions Judge, Court No. 12, Ahmedabad in Criminal Revision Application No. 50 of 2014 confirming order dated 18.11.2013 passed by learned Additional Chief Metropolitan Magistrate, Court No. 9, Ahmedabad in application below Exh. 2 in Criminal Case No. 2321 of 2011. Pertinent here would be to mention that application below Exh. 5 being preferred by the petitioner of Criminal Misc. Application No. 7764 of 2014 inter alia praying for being discharged from the FIR and the criminal case and whereas the learned Magistrate rejecting the said application a revision application being preferred before the learned Sessions Court and whereas vide the order dated 22.05.2014 the learned Sessions Court confirming the order passed by the learned Magistrate.

4. Briefly stated the allegations raised in the FIR being that the respondent no.2 original complaint inter alia alleges that he is having a garage in the property as mentioned in the FIR and whereas such garage being run by the complainant since the year 1987 and whereas the petitioner of Criminal Misc. Application No. 7764 of 2014 having purchased the entire property along with the garage in the year 2007.

It is alleged that on the date of accident, the complainant was present at the garage with his brother as well as two other employees and whereas since petitioners of both the matters i.e son and mother respectively were having an altercation with a customer of the complainant, therefore, the complainant had

intervened upon which the petitioners had allegedly told the complainant to vacate the premises and whereas upon the complainant informing them to get appropriate orders from the court concerned, the petitioner of Criminal Misc. Application No. 2648 of 2012 had got excited and had assaulted brother of the complainant with a hammer on his back and whereas the petitioner of Criminal Misc. Application No. 7764 of 2014 is alleged to have assaulted the complainant on his head with a stick which had resulted in an injury being caused to the complainant and also the bleeding being caused from the injury.

5. Learned Senior Advocate Mr. Patel appearing on behalf of the petitioner in Criminal Misc. Application No. 7764 of 2014 would inter alia submit that the FIR itself, stated improbable allegations. Learned Senior Advocate would submit that the complainant was a garage owner and whereas there were three other persons being his brother and two other employees who were present at the garage along with one customer and whereas the allegation being that the petitioners being mother and a minor son who was being approximately 17 years at that time, had assaulted both the persons. Learned Advocate would submit that such an allegation of a lady and minor son assaulting two persons in presence of total of 5 male persons who were connected to each other clearly appears to be improbable. Learned Advocate would submit that the complainant and the accused had a dispute with regard to garage in the premises of the petitioners and since the complainant feared that the civil proceedings might result in his ouster, he had preferred impugned complaint just with a view to harass and pressurize the petitioners. Learned Advocate would further draw the attention of this Court to injury certificate which is annexed with the petition which would show that the complainant, had an abrasion on his forehead and whereas there was no injury which might caused bleeding as alleged by the complainant.

6. Learned Senior Advocate would further submit that insofar as petitioner of Criminal Misc. Application No. 2648 of 2012, at the relevant point of time the applicant was a minor. Learned Advocate would further submit that the charge- sheet papers having been produced on record, there is no injury certificate, of brother of the complainant which would show that the brother of the

complainant had sustained any injury whatsoever. Learned Advocate would further point out that the statements of the witnesses along with charge-sheets are either the brother of the complainant or employees of the complainant or of customers of the complainant. Learned Advocate would submit that presence of all the witness being confirmed by their own statement at the relevant point of time at the place of incident would itself point out towards improbability of the allegations levelled against the petitioners.

7. Having regard to the submissions made as hereinabove, learned Advocate in Criminal Misc. Application No. 7764 of 2014 would submit that the impugned orders passed by the learned Sessions Court confirming order of the learned Magistrate refusing discharge the petitioner deserves interference of this Court. Learned Advocate in Criminal Misc. Application No. 2648 of 2012 for the petitioner would submit that the impugned complaint may be quashed by this Court.

8. This petition is vehemently opposed by learned Advocate Mr. R.K,Rajput on behalf of the complainant who would submit that the police had registered the FIR where commission of offences is alleged. Learned Advocate would further submit that after investigation the Investigating Officer had filed a charge-sheet. Charge-sheet contains statements of witnesses who were present at the site of the incident who confirmed that such an assault indeed took place. Learned Advocate therefore would submit that while there is no reason for this Court to interfere with the complaint even the impugned order passed by the learned Sessions Court confirming the order of the learned Magistrate may not be interfered with by this Court.

9. Learned Advocate would further submit that as a matter of fact while the garage had been started by the complainant in the year 1987, the petitioner and her son came into the property in the year 2007. Learned Advocate would submit that from such time the petitioners were trying to pressurize the complainant for vacating the property in question and whereas the assault was

on account of refusal of the complainant to vacate the property. Learned Advocate would submit that since prima facie case has been made out in the complaint more particularly cognizable offneces having been made out this Court may not interfere with the complaint as well as the orders passed by the learned Sessions Court confirming the orders of the learned Trial Court.

10. Learned APP would submit that prima facie the complaint states with regard to the cognizable offences having taken place. Learned APP at the same time could not point out statements of independent witnesses more particularly considering the fact that statements of witnesses recorded during the investigation are of persons employed by the complainant or related to the complainant or customers of the complainant as the case may be. Learned APP also could not dispute the submission made by the learned Advocate for the petitioners that there is no material to substantiate any injury sustained by brother of the complainant more particularly considering the allegation that brother of the complainant had been allegedly assaulted by the petitioner of Criminal Misc. Application No. 2648 of 2012 with a hammer.

11. Heard learned Advocate for the parties who have not submitted anything further.

12. At the outset it requires to be noted that while the petitions are in essence challenging the very selfsame FIR, it also needs to be appreciated that in the first petition i.e Criminal Misc. Application No. 2648 of 2012, the impugned FIR is under challenge whereas second petition i.e. Criminal Misc. Application No. 7754 of 2014, orders passed by the learned Sessions Court confirming the order of learned Magistrate is under challenge Having observed as above insofar as Criminal Misc. Application No. 2648 of 2012, this Court finds that the allegation against the petitioner therein that the petitioner had assaulted the brother of the complainant with the hammer on his back. Even though investigation is over, there is no material except for statements of witnesses, which would show that the petitioner had assaulted brother of the complainant. As noted hereinabove, the witnesses in question are all somewhere or the other connected with the

original complainant and atleast for the purpose of quashment in the considered opinion of this Court their statement may not be taken as true and correct. The Court also appreciate the submissions made on behalf of the petitioners as regards the improbability of the allegations levelled by the complainant that the complainant was present at his garage with atleast five male persons i.e. along with his brother and two other employees. Furthermore presence of a customer also is recorded. Thus when five male persons were present at the site, the allegations that the a lady and her minor son, having gone and assaulted the complainant and his brother with a stick and a hammer respectively, in the considered opinion of this Court appears to be highly improbable. This Court has also noted the order passed by the learned Sessions Court confirming the order passed by the learned Magistrate. This Court notes that both the learned Courts had appreciated the submission on behalf of the original complainant that there were witnesses in the charge-sheet who had witnessed the incident in question. This Court also notices the aspect as referred to hereinabove that the witnesses could not be stated to be independent witnesses, more particularly the witnesses being somehow related to the complainant.

13. At this stage, this Court deems it appropriate to referreed to decision of the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 where the Hon'ble Apex Court has inter alia laid down certain categories of cases by way of illustrations, wherein extraordinary power under Article 226 or inherent powers under Section 482 of the Code of Criminal Procedure could be exercised by this Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice. Para No.102 of the said decision being the relevant, the same is reproduced hereinbelow for benefit.

"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 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.

Illustration no. (5) would be applicable to the facts of the present case. As noted hereinabove, this Court notices the improbability in allegation levelled in the complaint.

14. Having regard to the same the impugned FIR and further proceedings

arising therefrom namely insofar as petitioner of Criminal Misc. Application No. 7764 of 2012 being Criminal Case No. 2321 of 2011 and insofar as petitioner of Criminal Misc. Application No. 2648 of 2012 being the case registered with the learned Metropolitan Magistrate, Court No. 24, Ahmedabad ( Juvenile Court) with respect to the impugned FIR are hereby quashed. Rule is made absolute to the above extent.

(NIKHIL S. KARIEL,J) NIRU