Mahendrasinh Bahadursinh Jadeja vs State Of Gujarat
2023 Latest Caselaw 6168 Guj

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     R/CR.MA/6700/2017                                         ORDER DATED: 23/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 6700 of 2017

                                 With
             R/SPECIAL CRIMINAL APPLICATION NO. 91 of 2017
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            MAHENDRASINH BAHADURSINH JADEJA & 1 other(s)
                             Versus
                   STATE OF GUJARAT & 1 other(s)
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Appearance:
KSHITIJ M AMIN(7572) for the Applicant(s) No. 1,2
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 23/08/2023
                               COMMON ORAL ORDER

1. Rule. Since the issues involved in the present

applications are identical in nature, Criminal Misc. Application No. 6700 of 2017 is considered as leading

matter and both the matters are decided together.

2. The present application is filed for seeking

following reliefs:

"(B) This Hon'ble Court may be pleased to quash and set aside the FIR bearing I - C. R. No. 57 of 2016

registered with Panshina Police Station, Surendranagar,

in the interest of justice;

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OR

(BB) This Hon'ble Court may be pleased to quash and

set aside section 394 of the Indian Penal Code in FIR

bearing IC. R. No. 57 of 2016 registered with Panshina

Police Station, Surendranagar, in the interest of justice;

(C) That, pending admission, hearing and till final

disposal of the present application, this Hon'ble Court

be pleased to grant stay as to further

investigation/proceedings of the FIR bearing I - C. R.

No. 57 of 2016, registered with Panshina Police Station,

Surendranagar, in the interest of justice;"

3.1 Brief facts as per the case of the applicants in this application are as such that on 30.12.2016 the

complainant was travelling from Rajkot to Palanpur in

his car. On the way he stopped at a HP Petrol Pump

near Limbdi Sugar Spice Hotel to fill diesel. After

ascertaining that the petrol pump accepts payment by

card, he had filled up diesel of Rs. 1500/-. However, no

payment could be processed despite the card was swiped

repeated times. Therefore, he had asked the petrol pump

attendant to call his manager and the first informant

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informed him that may be because the card had reached

its limit of Rs. 24,000/- and therefore he offered to give

Rs. 900/- and remaining Rs. 600/- would be given when

he returns as he is working at Rajkot and goes to

Palanpur every weekend.

3.2 It is further the case of the applicants in this

application are as such that the owner of the petrol

pump had asked the first informant to arrange for the

money and therefore the first informant had called his

brother from Palanpur. That, when the owner of the

petrol pump had asked the first informant to hand over

the keys of his car, the first informant had refused to

oblige as his office papers were there in the car. That, two police officials from Panshina Police Station had

reached there and therefore the first informant was

surrounded by the employees of the petrol pump, its

owner and the police officials and he was assaulted. It

is further alleged that the first informant was forcefully

made to sit in a car to be taken to Police Station that

is when the first informant disclosed his identity. It is

further alleged that despite disclosing his identity he

was assaulted in his car. Hence, the impugned FIR is

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lodged. It is further the case of the applicants in this

application are as such that the applicants are innocent

and have not committed any offence as alleged in the

impugned FIR and the same is false, frivolous and is

also filed with an ulterior motive of causing harassment

to the applicants and other and the same amounts to

abuse of the process of law. Hence, the present

application is preferred.

4. Heard learned advocate Mr. Kshitij M. Amin for

the applicants and Mr. Dhawan Jayswal, learned

Additional Public Prosecutor (APP) for the respondent

No.1 - State. Though serviced to the respondent No.2 -

complainant, he has chose not to appear before this Court to contest the case. This Court has given

sufficient opportunity to him to appear, therefore, the

matter is adjourned today for final disposal of the

matter.

5.1 Learned advocate Mr. Kshitij M. Amin for the

applicants has drawn my attention to the impugned

F.I.R., which is filed under the provisions of Sections

323, 342, 294 and 114 of the Indian Penal Code by

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narrating the incidents as alleged in the F.I.R. He has

submitted that incident has essentially has taken place

at the time when the complainant visited the petrol

pump for getting the diesel filled up in his car.

Thereafter, due to some technical problem, payment

could not be proceeded. Therefore, he is not having

sufficient case against the accused. He has further

submitted that at that place, some heated exchanges

have taken place and as per his complaint, the key of

the car is taken by the petrol pump owner as well as

some altercations have taken place between the

complainant and petrol pump staffs. At that point of

time, two police personnel have also visited the petrol

pump. Therefore, the incident has occurred. Thought the complainant has given his identity as Judge of the Civil

Court yet some ill-treatment is given by the accused

persons, that is the sum and substance of the complaint.

5.2 He has further submitted that considering the fact

that even on bare reading of impugned F.I.R., no

ingredients under the provisions of Indian Penal Code is

satisfied. He has further submitted that the complaint is

filed with a view to harass the accused persons by

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exaggerating the facts of the incident and by abusing

the powers of an authority as a Civil Judge, such

complaint is filed. He has further submitted that in

view of the various judgments of the Hon'ble Apex

Court as well as this Court, and in view of ingredients

of robbery as alleged Section 392 in the complaint under

the provisions of Section 394, looking to the averments

made in the complaint, at the best, it can be said that

there is some insistence from the petrol pump owner for

payment of the amount of fuel. Therefore, the present

complaint is nothing but an abuse of process of law. He

has also drawn my attention to the complaint filed by

one of the petrol pump owner on 31.12.2016, which is

prior to the complaint filed by the present complainant, which is subsequent to that complaint. Therefore, he has

submitted the same is filed by as a counterblast.

5.3 He has further submitted that such incident is

occurred due to highhandedness of the complainant

himself and by using his legal brain, he has tried to

implicate the applicants in the impugned F.I.R. under

Section 394 resulting to harassment of the applicants.

Therefore, he has submitted that the impugned F.I.R. is

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false and frivolous, which amounts to abuse of process

of law. Therefore, this Court should exercise the powers

under Section 482 of the Criminal Procedure Code by

quashing the impugned F.I.R., in view of 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.

6. Though complaint is served and he has not

contested the present application. Learned APP has

contested this application by submitted that prima facie

case is made out against the applicants and now the

investigation is began. Therefore, this Court should not

exercise the powers under Section 482 of the Criminal

Procedure Code, which should be exercised very sparingly, and therefore, he has prayed to dismiss the

present application.

7.1 I have considered the rival submissions made at

the bar by the parties. I have considered the

submissions made at the bar. It is fruitful to refer the

provisions of Sections 323, 342, 294 and 114 of the

Indian Penal Code, as under:

"Section 323 in The Indian Penal Code:-

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323. Punishment for voluntarily causing hurt.--

Whoever, except in the case provided for by section

334, voluntarily causes hurt, shall be punished with

imprisonment of either description for a term which

may extend to one year, or with fine which may

extend to one thousand rupees, or with both.

Section 342 in The Indian Penal Code:-

342. Punishment for wrongful confinement.--Whoever

wrongfully confines any person shall be punished with

imprisonment of either description for a term which

may extend to one year, or with fine which may

extend to one thousand rupees, or with both.

Section 294 in The Indian Penal Code:-

294. Obscene acts and songs.--Whoever, to the

annoyance of others--

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or

words, in or near any public place, shall be punished

with imprisonment of either description for a term

which may extend to three months, or with fine, or

with both.

Section 114 in The Indian Penal Code:-

114. Abettor present when offence is committed.--

Whenever any person, who is absent would be liable

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to be punished as an abettor, is present when the act

or offence for which he would be punishable in

consequence of the abetment is committed, he shall be

deemed to have committed such act or offence."

7.2 Additionally, considering the fact that petrol pump

owner has already lodged the complaint before the Police

Station concerned on 31.12.2016 prior to the filing of

impugned F.I.R. It transpires that prima facie, some

incident has taken place due to non-payment of cost of

diesel filled up in the complainant's car. Thereafter, on

insistence of such payment, the complainant - car owner

has given his identity as Civil Judge, has refused to

pay the amount due to non-process of payment of his

Debit/Credit Card. Thereafter, the complainant has said that he is having only Rs.900/- cash against the bill of

Rs.1,500/-. Therefore, the owner and staff of petrol pump

have insisted him for payment of remaining cost of

diesel. Therefore, it seems that there is some altercation

has taken place and due to that the complaint is filed.

7.3 In light of above and considering the averments of

F.I.R., I have perused the papers of investigation,

whereby nothing is found against the present applicants,

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which remotely connects the accused persons in any

offence under Section 394. Moreover, offence as alleged

under Section 323 and 343 are also prima facie not

made out from the averments made in the F.I.R.

7.4 On the contrary, the conduct of the complainant

speaks volume that being a Civil Judge, he has

travelled in the car during the night hours and when

he went for filling up fuel at the petrol pump in his

car, at that point of time, at the time of payment, some

insistence was made by the present applicants.

Therefore, it is fruitful to refer the judgment of this

Court in the case of Dharmendrabhai Nandubhai Patel

versus State of Gujarat reported in 2011 (0) AIJEL HC

225440, more specifically, paragraphs 19, 20 and 21 are relevant, as under:

19. In the present case, prima facie, I am of

theview that the offences punishable under Sections

395 and 397 IPC are not sustainable. This is my

prima facie opinion. The reason for this is obvious.

Case of the prosecution right from the beginning

appears to be very specific and clear. It appears that

the first informant, the injured, developed some

intimacy with a girl named Gitaben Patel. As a result

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of this intimacy they got married. The accused-

applicant herein and the other co-accused who have

been convicted by the trial Court are all very close

relatives of Gitaben Patel. They did not approve the

relations of the first informant, the injured with

Gitaben and also got annoyed by the fact that the

first informant got married with Gitaben without the

consent of the family members of Gitaben. Due to this

reason, it appears that on the fateful day of the

incident a quarrel ensued, as a result of which the

first informant was badly thrashed by the accused-

applicant along with the other co-accused and this was

with the sole intention of teaching him a lesson for

taking the extreme step of getting married with

Gitaben surreptitiously.

20. Now, in this background, it appears that the

prosecution came forward with a case that when the

first informant was being assaulted, at that point of

time, the accused-applicant and the other co-accused

snatched away some gold ornaments, a watch, mobile

phone and some cash. It is the case of the prosecution

that the first informant i.e. the injured and his

witnesses were robbed of these articles on a gun

point. Firstly, it deserves to be noted that the

accused- pplicants have been acquitted from the charge

under the Arms Act.

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21. Now, in this background of the entire

prosecution case and the evidence on record, can it be

said that the common object of the unlawful assembly

was to commit an offence of dacoity. Can it be said

that the motive behind the crime was commission of

dacoity or whether the common object of the unlawful

assembly was to thrash the first informant for the

reason that he developed intimacy with Gitaben and

got married with Gitaben surreptitiously without

seeking any permission from the family members of

Gitaben. This is the core issue which, prima facie,

needs to be considered in the appeal. However, prima

facie, I am of the view that without going much into

appreciation of evidence the conviction under Sections

395 and 397 appears to be unsustainable. I am of the

view that the Court owes a duty to consider, as to

whether the accused has a fair chance of succeeding

in the appeal or not ? I may consider my prima facie

opinion in light of what has been explained by the

Division Bench of this High Court so far as Section

390 of IPC is concerned. The Division Bench of this

High Court, in the case of Himatsing Shivsing v. The

State of Gujarat, reported in 1961 GLR 678, has

observed as under:-

"Theft amounts to 'robbery' if, in order to the

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committing of the theft, or in committing the

theft, or in carrying away or attempting to carry

away property obtained by the theft, the offender

for that end, voluntarily causes or attempts to

cause to any person death or hurt or wrongful

restraint, or fear of instant death or of instant

hurt, or of instant wrongful restraint. Before

theft can amount to 'robbery', the offender must

have voluntarily caused or attempted to cause to

any person death or hurt or wrongful restraint,

or fear of instant death or of instant hurt, or of

instant wrongful restraint. The second necessary

ingredient is that this must be in order to the

committing of the theft, or in committing the

theft, or in carrying away or attempting to carry

away property obtained by the theft. The third

necessary ingredient is that the offender must

voluntarily cause or attempt to cause to any

person hurt etc., for that end, that is, in order

to the committing of the theft or for the purpose

of committing theft or for carrying away or

attempting to carry away property obtained by

the theft. It is not sufficient that in the

transaction of committing theft hurt etc., had

been caused. If hurt etc., is caused at the time

of the commission of the theft but for an object

other than the one referred to in sec.390,

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I.P.Code, theft would not amount to robbery. It

is also not sufficient that hurt had been caused

in the course of the same transaction as

commission of the theft. The three ingredients

mentioned in sec.390, I.P.Code, must always be

satisfied before theft can amount to robbery, and

this has been explained in Bishambhar Nath v.

Emperor, A.I.R. 1941 Oudh, 476, in the following

words:- " The words "for that end" in sec.390

clearly mean that the hurt caused by the

offender must be with the express object of

facilitating the committing of the theft, or must

be caused while the offender is committing the

theft or is carrying away or is attempting to

carry away the property obtained by theft. It

does not mean that the assault or the hurt

must be caused in the same transaction or in

the same circumstances." In Karuppa Gounden v.

Emperor, A.I.R. 1918 Madras 321, which followed

two Calcutta cases of Otaruddi Manjhi v.

Kafiluddi Manjhi, 5 C.W.N. 372, and Kind

Emperor v. Mathura Thakur, 6 C.W.N. 72, it

has been observed at page 824 as follows : "

Now it is our duty to give effect to the words

"for that end". It would have been open to the

legislature to have used other words which

would not raise the difficulty that arises here.

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The Public Prosecutor has been forced to argue

that "for that end" must be read as meaning 'in

those circumstances'. In my opinion we cannot do

that in construing a section in the Penal Code.

Undoubtedly, words 'in those circumstances'

would widen the application of the section and

we are not permitted to do that. The matter has

been considered in two judgments of the

Calcutta High Court one of which is reported as

Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N.

372. Their Lordships put the question in this

way: " It seems to us that the whole question

turns upon the words "for that end". Was any

hurt or fear of instant hurt, that was caused in

the present case, caused for the end of the

commission of the theft ? We think not. It

seems to us that whatever violence was used for

the purpose of dispossessing the persons who

were already in possession of the premises in

question and had no relation to the commission

of theft, although theft was committed at the

same time." The language used in another case

reported as King Emperor v. Mathura Thakur, 6

C.W.N. 72, is as follows :-

"The question here arises whether Mathura

Thakur when he attacked Soman Dhania, did so

for the end referred to, namely, for the purpose

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of carrying away the paddy, which had been

harvested." Those judgments in my opinion state

the obvious intention of the section and we are

bound to give effect to it and I, therefore, follow

the decisions in those two cases."

7.5 Further, it will also 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 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

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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.

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(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 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

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ulterior motive for wreaking vengeance on

the accused and with a view to spite him

due to private and personal grudge."

7.6 In light of the above, I am of the view that the

present complaint is nothing but an exaggerated version

of the narration of incident and with a view to

implicate the accused persons in the serious offence, the

present complaint is filed. Moreover, considering the fact

that prior complaint was already filed by the petrol

pump owner then the present complaint can be

considered as counterblast of that complaint, therefore,

in view of the judgment of the Hon'ble Supreme Court

in the case of Bhajan Lal (supra), this is a fit case

where the Court should exercise the powers under Section 482 of the Criminal Procedure Code by quashing

the impugned complaint for the respective applicants.

8. Accordingly, the present application is allowed.

9. The impugned FIR C.R. No.I 57 of 2016 registered

with Panshina Police Station, Surendranagar as well as

consequential proceedings arising pursuant to the

impugned F.I.R. are hereby quashed and set aside qua

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the present applicants.

Rule is made absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA