Mitul Dilipbhai Parmar vs State Of Gujarat
2023 Latest Caselaw 2733 Guj

   R/CR.MA/19842/2022                                    ORDER DATED: 03/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 19842 of 2022

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                           MITUL DILIPBHAI PARMAR
                                    Versus
                              STATE OF GUJARAT
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Appearance:
D H KANTHARIYA(7505) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 03/04/2023

                                ORAL ORDER

1. Rule. Learned APP waives service of notice of

Rule on behalf of respondent-State.

2. By way of this petition filed under Article 226

of the Constitution of India read with Section

482 of the Code of Criminal Procedure (for

short, "the Cr.P.C."), the petitioner has

prayed to quash and set aside the complaint

being FIR No.C-1937 of 2022 registered with

Kamrej Police Station, District: Surat for the

offences punishable u/s. 65E, 81 and 116(2) of

the Gujarat Prohibition Act and all other

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

consequential proceedings.

3. Learned advocate Mr.Darshil Kanthariya

appearing for the petitioner submitted that the

career of the petitioner is at stake. The

petitioner is actively involved in 'Yuva

Upnishad Foundation' and has been trying to

make a move for the better himself and others.

He also submitted that the petitioner is an

educated person, who is trying to joint the

police force to help his elderly parents and

provide a better life for them. He also

submitted that he has passed several rounds of

recruitment in the Gujarat Police Force. He

also submitted that the petitioner is quite

innocent and he has been falsely implicated in

the crime, even the bare reading of the

complaint and other facts and circumstances

makes it clear that no offence is made out

against the present petitioner. Therefore also,

this is a fit case where discretion deserves to

be exercised in favour of the petitioner.

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

4. Learned APP Mr.Hardik Mehta for the respondent-

State has resisted this on the ground that the

powers under section 482 of Cr.P.C., are to be

exercised by the Court sparingly and in an

appropriate case at an appropriate time.

Presently, the investigation in this case is

going on and it is at a crucial stage, and

therefore, the complaint may not be quashed.

5. Having heard learned advocate for the

petitioner and learned APP for the respondent

State, this Court notices that this request is

made for exercise of inherent powers under

section 482 of the Cr.P.C., which are very wide

amplitude. These inherent powers can be

exercised either to sure the ends of justice or

to prevent the abuse of process of law.

However, it would dependent on the facts and

circumstances of each case and no category is

prescribed by the Court for the same. What is

required to be considered is the nature and

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

gravity of the offence. Heinous and serious

offences, such offence of rape or dacoity or

murder or the offence leading to serious

injuries to the society at large etc. may not

be considered for the purpose of exercise of

inherent powers.

6. Ordinarily, it is expected that the category of

commercial offences or disputes of mercantile

and of civil nature or matrimonial disputes or

disputes of partnership firms etc., the Court

may consider to exercise these powers, when the

parties have chosen to settle the disputes. The

Court also need to record, whether the

continuation of the criminal prosecution would

cause extreme prejudice to the accused or would

cause him injustice, if not allowed quashment,

even after the parties have settled all their

disputes. These powers are required to be

exercised sparingly, as stated above. Since,

the offence against the society, it cannot be

said to be a private FIR between the parties.

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

7. It appears from the allegations made in the

impugned FIR that mother and present petitioner

are doing the business of liquor and it also

appears that they are maintaining their supply

of liquor by keeping the same in the field of

Parvatbhai and doing their business. At the

time of raid, muddamal of Rs.7,200/- of Indian

made foreign liquor was found. During the

investigation it was revealed that the said

muddamal of liquor belongs to the present

petitioner and his mother and they are bringing

the said stock of prohibited liquor and selling

it from the field of Parvatbhai. It is also

revealed that present petitioner is absconded

and not arrested till today nor he has remained

present before the police authority. It is not

a matter of dispute that the investigation is

till going on and it is at present at a crucial

stage. Since, the investigation is going on, it

would be too premature for this Court to opine

on any of the submissions made with regard to

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

lopsided investigation. The Investigation

Officer has also not submitted his final

report, therefore, any of his comment on the

same would be in the opinion of this Court is

at a premature stage.

8. At     this         stage,    in     a    recent      decision           of      the

   Hon'ble             Supreme   Court          in    case      of      Neeharika

   Infrastructure                Pvt.          Ltd.      Vs.         State            of

Maharashtra and Ors., reported in 2021 (19) SCC

401, is required to be referred to. After

taking into consideration the earlier decision

on exercising the powers under Section 482 of

the Code of Criminal Procedure including the

decision of State of Haryana V. Bhanaj Lal,

reported in 1992 Supp (1) SCC 335 and others.

The Hon'ble Supreme Court has observed in Para

No.80, which reads 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

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

pendency of the quashing petition under section 482 of Cr.P.C and/or under of the Constitution of India and in what circumstances and whether the High Court would be justified in 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 of Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C. and/or under section 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 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;

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

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;

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.

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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 of 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;

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 of 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

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

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 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

R/CR.MA/19842/2022 ORDER DATED: 03/04/2023

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."

9. Considering the allegations made in the

impugned FIR, prima facie, the involvement of

the petitioner in the alleged offence could not

be ruled out. Thus, in view of the principle

laid down in the aforesaid judgment and the

facts and circumstances of the case, this Court

does not find this to be a fit case where

discretion under section 482 of Cr.P.C. could

be exercised in favour of the petitioners.

10. For the foregoing reasons, the petition is

dismissed.

(SAMIR J. DAVE,J) MEHUL B. TUVAR