Gujarat High Court
Devchandbhai Bhikhabhai Parmar vs State Of Gujarat on 1 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15127 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
DEVCHANDBHAI BHIKHABHAI PARMAR & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
ABATED for the Applicant(s) No. 1
MR DIPAK R DAVE(1232) for the Applicant(s) No. 2,3
MS ASMITA PATEL APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/08/2023
ORAL JUDGMENT
The present petition is filed under Section 482 of the Code
of Criminal Procedure seeking quashment of the complaint
registered as CR No.II-19 of 2013 with Lathi Police Station for
the offence punishable under Sections 323, 504, 506(2) and 114
of the Indian Penal Code.
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
2. At the outset, it may be noted that petitioner no.1 came to
be died during the pendency of the proceedings; and therefore
petition against petitioner no.1 stands abated.
3. The short facts of the case as can be seen from the FIR are
that petitioners were the officials of the GEB and on 22/04/2013
while the complainant was going towards his house, in the main
market, petitioners were sitting in Bolero Jeep Car bearing
Registration No.GJ-11X-947 and from the said car while the
persons of GEB came out by opening the door; as a result of
which the complainant knocked with the door and fell down on
the road and received such injuries. By making such allegations
against the petitioners by complainant-Kalubhai Bhimjibhai
Soliya, the present complaint came to be filed.
3.1 Investigation is carried out and charge-sheet came to be
filed against the accused and thus the petitioners have approach
this Court for quashment of the complaint in question.
4. Learned Advocate Mr.Dipak R Dave for the petitioners
would submit that bare reading of the FIR and charge-sheet
papers would not indicate the commission of offence as alleged
in the FIR. It is alleged that when the complainant was passing
through the market, he was fallen down on account of the door
of the Bolero Jeep being knocked with him which came to be
opened suddenly; wherein the petitioners were sitting. It is
submitted that from bare reading of the complaint, it does not
disclose the commission of offence; to the contrary it is revealled
that officials of the GEB entered into Mitapara Village for
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
surprise checking of theft of electricity who have been taken into
task by the complainant and other persons and thus the present
complaint is nothing; but a counter blast to the act of GEB
Officials and therefore it is submitted to allow the petition and to
quash the FIR.
5. Learned APP Ms.Patel for the respondent-State would
submit that since the charge-sheet is filed in the present case,
petitioners should be relegated to the trial for filing discharge
application or else they may be asked to face the trial. She has
further submitted that this Court cannot hold the mini trial at
this juncture to acquit the accused. She has further submitted
that under the limited jurisdiction vested under Section 482 of
the Cr.PC, it does not permit this Court to exercise the powers
and quash the FIR and charge-sheet as sufficient materials for
trial are available.
6. Heard learned Advocate Mr.Dipak R Dave for the
petitioners and learned APP appearing for the respondent-State.
Respondent No.2 though served chose not to appear.
7. At the outset, it would be fruitful to refer to the decision in
the case of State of Haryana vs. Bhajan Lal [1992 Supp (1) SCC
335] wherein the categories of cases have been identified as to
when the power under Section 482 can be exercised by this
Court.
"(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;
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
(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 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 vengence on the accused and with a view
to spite him due to private and personal grudge. "
8. It would also be profitable to refer to the decision in the
case of Dinesh Dutt Joshi vs. State of Rajasthan [(2001) 8 SCC
570] wherein while dealing with the inherent powers of the High
Court, the Supreme Court has observed thus;
" The principle embodied in Section is based upon the maxim:
Quando lex aliquid alicuiconcedit, concedere videtur id quo res
ipsa esse non potest i.e. when the law gives anything to anyone,
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
it gives also all those things, without which the thing itself
would be unavailable. Section does not confer any new power,
but only declares that the High Court possesses inherent
powers for the purposes specified in the Section. As Lacunae
are sometimes found in procedureal law, the Section has been
embodied to cover such Lacunae wherever they are discovered.
The use of extraordinary powers conferred upon the High Court
under this Section are however required to be reserved, as far
as possible, for extraordinary cases. The principle embodied in
Section is based upon the maxim: Quando lex aliquid
alicuiconcedit, concedere videtur id quo res ipsa esse non potest
i.e. when the law gives anything to anyone, it gives also all those
things, without which the thing itself would be unavailable.
Section does not confer any new power, but only declares that
the High Court possesses inherent powers for the purposes
specified in the Section. As Lacunae are sometimes found in
procedureal law, the Section has been embodied to cover such
Lacunae wherever they are discovered. The use of extraordinary
powers conferred upon the High Court under this Section are
however required to be reserved, as far as possible,for
extraordinary cases."
9. What emerges from the above judgments is that when the
prosecution at the initial stage is asked to quash the FIR or
complainant is to be non-suited, test to be applied by the Court
is as to whether the uncontroverted allegations as made in the
complaint prima-facie establish the case. The Court exercising
the powers under Section 482 of the Code is required to see as to
whether continuation of the complaint would amount to abuse of
process of law and whether such continuation of proceedings
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
would result into miscarriage of justice; only then the Court can
exercise the powers under Section 482 of the Code.
10. Undisputablly, the Court while exercising the powers under
Section 482 of the Code has to see the complaint and the charge-
sheet papers, if any. It is true that in a case where the charge-
sheet is filed, the Court should be circumspect to quash FIR or
complaint to non-suit the complainant; however if FIR itself
being uncontroverted indicates that no element of offence as
alleged are coming forth, rolling of such complaint would
tantamount to miscarriage of justice.
11. Dwelling upon the contents of the FIR, what prima facie
appears is that the FIR is filed as a counter-blast to the act of
GEB Officials who had gone for surprise checking of electricity
connection in the village to ascertain as to whether any power
theft is committed or not. In light of these facts, this Court is
really failed to understand as to how the offence under Sections
323 or 504 or 506(2) of the IPC is made out on the elements and
allegations that the complainant has been knocked down by
opening of the door of Bolero jeep. Such allegations as is made
out in the FIR appears to be blurred and they are insufficient to
form the commission of offence as alleged in the FIR. No injury is
caused to the complainant or any other witnesses at least; not
disclosed in the FIR which is quite essential for the constitution
of offence punishable under Section 323 of the IPC.
12. In order to establish the criminal intimidation a
punishment of which is defined under Section 506 of the IPC,
the prosecution is to establish the criminal intimidation as
NEUTRAL CITATION
R/CR.MA/15127/2015 JUDGMENT DATED: 01/08/2023
undefined
stated in Section 503 of the IPC. The express "with intent to
cause alarm to that person" has to be established even at the
prima facie stage. Here, in the present case such allegations are
made; but lacks such expression as discussed herein above, as
also in the charge-sheet. The FIR indicates or rather gives an
impression that it is filed with oblique and mala-fide intention to
obstruct GEB Officer from conducting surprise checking. It is
required to be noted that petitioners who are GEB Officials were
discharging their service / duty. FIR being absurd is filed with
malign to stop and discourage the officials of the GEB from
performing their duties. The FIR and charge-sheet if allowed to
roll down into the criminal case, would certainly amount to
miscarriage of justice and therefore, this is a fit case to exercise
the powers under Section 482 of the Code to prove the abuse of
process of law.
13. For the foregoing reasons, the petition succeeds. The
complaint registered at CR No.II-19 of 2013 with Lathi Police
Station for the offence punishable under Sections 323, 504,
506(2) and 114 of the Indian Penal Code and all other
subsequent proceedings arising out thereof are quashed and set
aside. Rule is made absolute to the aforesaid extent.
(J. C. DOSHI,J)
sompura
