Gujarat High Court
Rajubhai Chandubhai Parmar ... vs State Of Gujarat on 19 August, 2023
Bench: Sandeep N. Bhatt
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 6615 of 2018
==========================================================
RAJUBHAI CHANDUBHAI PARMAR (DARBAR)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR BHAVIN S RAIYANI(3855) for the Applicant(s) No. 1
MR YUNUS U MALEK(5343) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 19/08/2023
ORAL ORDER
1. Present petition is filed mainly for the following prayer:-
"7. .......
A) Your Lordships may kindly be pleased to quash and
set aside the FIR at Annexure-A registered with Borsad
City Police Station, Dist.Anand, vide C.R.No.I-21 of 2018,
U/s 376, 323, 504, 506 (2) of IPC and sections 3 (1)(R) (S)
(W), 3 (2)(5)(a) of Atrocities Dt.17-03-2018 and quash
and set aside further proceedings arising out of same
C.R. in the interest of Justice."
2. The brief facts leading to filing of present application are
as under:-
2.1 The complaint in question is filed for the offence under
Sections 376, 323, 504, 506 (2) of the Indian Penal Code and
Sections 3 (1)(R) (S) (W), 3 (2)(5)(a) of the Scheduled Caste
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
and Scheduled Tribe (Prevention of Atrocities) Act, 1989. This
FIR is lodged by the complainant against present petitioner
Rajubhai Chandubhai Parmar (Darbar) by alleging that she was
serving on contract basis as staff of Borsad Mamlatdar Office,
for census work and came in contact with Rajubhai Chandubhai
Parmar, i.e. accused and present petitioner in the petition.
Thereafter, their relationship has developed and she along with
the accused went to see the movies and also visited some
guest house, wherein they entered into physical relationship.
She has also stated that present accused has made some
video clips of their intimate moments. Thereafter, the accused
has asked her to indulge into the activity of issuance of bogus
ration card, which was denied by the complainant. It is stated
that thereafter, the accused abused her on many occasions in
office and also abused her caste in public view. Thereafter,
since the complainant denied to keep physical relationship
with the accused, the accused threatened to make her photos
and videos viral, and forced her into physical relation.
Thereafter, the accused has also got their concocted marriage
certificate issued. Accordingly, complaint is lodged against the
present petitioner by the complainant.
2.2 In view of filing of above complaint, the petitioner has
filed present petition under Section 482 of the Criminal
Procedure Code with a prayer to quash and set aside the
complaint.
3. Heard learned advocate, Mr.Bhavin Raiyani for the
petitioner and learned APP, Mr.Soaham Joshi, for the
respondent-State.
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
4. Mr.Bhavin Raiyani, learned advocate for the petitioner
has strongly relied upon the averments made in the complaint
by pointing out that apparently this is a case of love affair
between the parties and she has willingly maintained
relationship with the accused for longer period of time and,
thereafter, for the reasons best known to her, she has filed a
false complaint, with a mala fide intention to harass present
petitioner. He has further submitted that the complaint is filed
after delay of almost three years from the date of alleged
incident, which shows that the complaint is filed with some
oblique motive and ill-intention. He has further submitted that
though the complaint is filed for the offences under Sections
376, 323, 504, 506 (2) of IPC as well as for offences under
Sections 3 (1)(R) (S) (W), 3 (2)(5)(a) of the Atrocities Act, the
complaint does not disclose any prima facie material
pertaining to the threat given by the accused to the victim
before commission of offence. From the complaint, it appears
that even the intercourse is done by the petitioner at the free
will and wish of the complainant. He has further submitted that
looking to the allegations made in the complaint against the
accused, ingredients of the offence under the Atrocities Act are
not made out. He has submitted that when this Court has
issued notice in the matter, this Court has also granted interim
protection by directing the authorities not to take any coercive
action and, therefore, he has prayed that in view of all this
and, more particularly, considering the fact that though the
notice is served and initially complainant is represented
through advocate, today no one is appearing in the matter,
this petition may be allowed after verifying the investigation
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
papers. He, accordingly, prayed that the petition may be
allowed.
5. Per contra, learned APP, Mr.Soaham Joshi for the
respondent-State has opposed the prayers made in the present
petition by contending that considering the seriousness of the
allegations made in the complaint, it transpires that there is
relationship between the complainant and the accused and it is
not in dispute that the accused has made video clips. He also
submitted that considering the fact that there is forceful
physical relationship between the complainant and the
accused, prima facie, ingredients of offence punishable under
Sections 376, 323, 504 and 506 (2) of IPC can be said to have
been made out at this stage. He has further submitted that
prima facie on reading of the complaint, and considering the
fact that the complainant is hailing from the backward
community, ingredients of offences under Sections 3 (1)(R) (S)
(W), 3 (2)(5)(a) of the of Atrocities Act are also attracted, which
are required to be tried at the trial, therefore, this Court should
not exercise its powers considering the seriousness of the
allegations. He has submitted that there is material on record
in the form of video clip. In view of all these, he has prayed
that this Court may not exercise powers under Section 482 of
the Criminal Procedure Code, which should be exercised very
sparingly.
6. I have considered the rival submissions made at bar. I
have also considered the fact that from bare reading of the
complaint, there is specific allegation made by the complainant
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
against the present petitioner, who has entered into
relationship with the complainant and, thereafter, has insisted
the complainant to indulge in the activity of issuing bogus
ration card. It is also clear that under the guise of love affair,
the petitioner has also entered into physical relationship with
the complainant and also recorded some intimate moments in
the mobile phone. Thereafter, on the basis of same, she was
frequently abused and threatened and her relationship is
misused as per the averments made in the complaint, which
squarely satisfy the ingredients of Section 376 and also prima
facie satisfy the ingredients of Sections 323, 504 and 506 (2)
of IPC. It also transpires that the petitioner is aware about the
caste of the complainant and there is very specific averment in
the complaint, about abusing her caste in public view and,
therefore, it can be said that, prima facie, ingredients of
offence under Sections Sections 3 (1)(R) (S) (W), 3 (2)(5)(a) of
the Atrocities Act can also be said to be satisfied.
7. It will be fruitful to mention the judgment of the Hon'ble
Supreme Court in the case of State of Haryana V/s Bhajan
Lal reported in AIR 1992 SC 604, wherein the Hon'ble
Supreme Court has observed thus -
"In the backdrop of the interpretation of the various
relevant provisions of the Code under Ch.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 Art.226 or the inherent powers under
sec.482 of the Code which we have extracted and
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
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 sec.156(1) of the Code except
under an order of a Magistrate within the purview of
sec.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
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
sec.156(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 personal grudge."
8. Further, in the judgment of the Hon'ble Apex Court in the
case of Neeharika Infrastructure Pvt. Ltd. versus State
of Maharashtra and Others reported in 2021 SCC OnLine
SC 315, and more particularly para 80 is relevant, it is
observed as under:
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
"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 pendency of the
quashing petition under Section 482 Cr.P.C and/or under
Article 226 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 Cr.P.C., while dismissing/disposing of/
not entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of powers under
Section 482 Cr.P.C. and/or under Article 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 Code of 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;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
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. 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 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;
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
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 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 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
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
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 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. The powers under Section 482 of the Criminal Procedure
Code are to be exercised very sparingly. The Court has to
remain cautious while exercising such power with a view to
prevent the abuse of process of law. Upon bare reading of FIR,
it cannot be said that no offence is made out or that such FIR is
filed with mala fide intention and with an ulterior motive for
wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge and continuation of
proceedings of FIR will amount to abuse of process of law. In
the present case, prima facie, offence is made out on the bare
reading of FIR. Not only that there are serious allegations
levelled against the present petitioner.
10. In view of above discussion and considering the aforesaid
judgments, I am of the opinion that this is not a case where
this Court should exercise power under Section 482 of Criminal
NEUTRAL CITATION
R/CR.MA/6615/2018 ORDER DATED: 19/08/2023
undefined
Procedure Code by aborting legitimate process initiated
pursuant to filing of the complaint. In view of above, present
petition is dismissed. Notice is discharged. Interim relief
granted earlier stands vacated.
(SANDEEP N. BHATT,J)
R.S. MALEK
