Gujarat High Court
Sagar Hareshbhai Banawala vs State Of Gujarat on 1 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11590 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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SAGAR HARESHBHAI BANAWALA
Versus
STATE OF GUJARAT
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
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 : 01/12/2023
ORAL JUDGMENT
1. Rule. The present petition is filed seeking for
following the main reliefs:
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"(A) To admit this application;
(B) To allow this application by issuing an
appropriate writ, order or direction in nature of writ
by quashing and setting aside the impugned FIR being
C.R.No.11195016210589 of 2021 registered with Deesa
North Police Station, Dist. Banaskantha, in the
interest of justice;
(C) Pending admission, and hearing final disposal of
this application, grant stay as to further investigation
into the impugned FIR being C.R.No. 11195016210589
of 2021 registered with Deesa North Police Station,
Banaskantha, in the interest of justice;"
2. Brief facts as per the case of the petitioner in this
petition are as such that an FIR came to be lodged
before Deesa North Police station on 07.08.2021 being
C.R.No.11195016210483 of 2021 for the alleged offences
punishable under Sections 406, 420, 465, 467, 468 and
471 of the Indian Penal Code. The petitioner came to be
arrested in conection with the offence on 09.08.2021 and
since then he is behind the bars. The investigation is
over and chargesheet is filed. Second FIR came to be
filed for the same offence and same subject matter with
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same issue on 14.10.2021 by the witness of the earlier
FIR before same police Station being C.R.No.
11195016210589 of 2021 for the offences punishable 406,
420, 465, 467, 468, 471, 167 and 120-B of the Indian
Penal Code as also under Sections 13(1)(b) and 13(1)(c)
of the Prevention of Corruption Act. As per the case of
the petitioner in this petitioner that there can not be
two FIRs for the same offence and therefore, second FIR
is violative of Article 14 ,20 and 21 of the Constitution
of India. misuse of process of law. Hence, the present
petition is preferred.
3. Heard Mr. Pravin Gondaliya, the learned advocate
for the applicant, Mr. Dhawan Jayswal, the learned
Additional Public Prosecutor (APP) for the respondent
No.1 - State.
4.1. Mr. Pravin Gondaliya, the learned advocate for the
applicant, has submitted that prima facie, the present
FIR is nothing but a second FIR identical to the first
FIR, filed by Karshanbhai Velaji Chaudhary - private
party, who lodged the complaint on 7.8.2021. This
complaint is registered under Sections 406, 420, 465, 467,
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468, and 471 of the Indian Penal Code. Mr. Gondaliya
has asserted that the accused person, namely Sagar
Hareshbhai Banawala (the present petitioner), gained the
complainant's confidence and prepared bogus challans and
documents regarding sales tax (VAT), income tax returns,
and income tax records of M/s Lal Petrolium. The same
incident is reported to have occurred with Shri
Sundheshree Petroleum for the period of 2015-21, as
mentioned by a witness in the complaint. Similar
incidents are also alleged with other witnesses, Ms. Man
Petroleum and Ms. Dharnidhar Petroleum, regarding
sales tax and income tax returns, leading to the filing of
the complaint against the accused persons.
4.2. Furthermore, Mr. Gondaliya has highlighted that
during the investigation of the initial complaint, the
police recorded the statement of Bhartiben, daughter of
Revabhai Khengarbhai Desai, on 29.9.2021, Assistant
Commissioner Sales Tax Department, Unit No.35 at
Deesa, Dist. Bansskantha, and provided details about
similar incidents involving other individuals in her
statement. He has drawn attention to another FIR filed
by Bhartiben on 14.10.2021, where the Sections 406, 420,
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465, 467, 468, 471, 167, and 120-B of the Indian Penal
Code, read with Sections 13(1)(b) and 13(1)(c) of the
Prevention of Corruption Act, are invoked. Mr. Gondaliya
has argued that despite the addition of sections and
accused in the second FIR, the narration of incidents
remains the same, making the second FIR based on the
same set of facts and circumstances as the first FIR.
4.3. Moreover, he has pointed out that such a second
FIR is not maintainable in the eyes of the law, citing
judgments from the Hon'ble Apex Court in cases of
Amitbhai Anilchandra Shah versus Central Bureau of
Investigation and Anr. (2013) 6 SCC 348, Babubhai
versus State of Gujarat (2010 AIR SCW 5126), and T.T.
Anthony versus State of Kerala (AIR 2001 SC 2637).
Considering the settled position of the law and the fact
that the second FIR was filed after about 2 and a half
months after the first FIR, Mr. Gondaliya has submitted
that filing such a proceeding pursuant to the second FIR
would amount to an abuse of the process of law.
Therefore, in view of the judgment of the Hon'ble
Supreme Court in the case of State of Haryana V/s
Bhajan Lal (AIR 1992 SC 604), he has prayed to allow
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the present petition by quashing the proceedings, as such
a second FIR cannot be entertained in the eyes of the
law.
5.1. Per contra, the learned Additional Public Prosecutor
(APP) for respondent No.1 - the State, has strongly
opposed the submissions made by the learned advocate
for the petitioner. He has submitted that, on a bare
reading of the two FIRs, there is a substantial difference
between the two. He has contended that charge-sheet has
now been filed pursuant to the second FIR, and the
investigation carried out in connection with the FIR filed
on 19.4.2023, as well as Special (ACB) Case Nos.1 of
2022, 2 of 2022, 1 of 2023, and 2 of 2023, is registered
before the Special Court pursuant to the said FIR.
Therefore, he has argued that there is no bar to filing
the FIR lodged by the sales tax officer on 14.10.2021
with Deesa North Police Station. Furthermore,
considering the contents of the FIR, it is registered
under Sections 406, 420, 465, 467, 468, 471, 167, and
120-B of the Indian Penal Code, read with Sections 13(1)
(b) and 13(1)(c) of the Prevention of Corruption Act. He
has contended that there are almost 35 accused persons
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named in that FIR, and there is systematic fraud
involving the production of bogus receipts and challans
related to sales tax transactions of 29 parties, resulting
in an amount of Rs.5,98,29,882/-. In contrast, he has
noted that the earlier FIR, allegedly filed by the private
party, is limited to the offense regarding five persons,
where only the present petitioner is named as an
accused, and the allegation is the creation of bogus
challans and documents for the purpose of filing income
tax returns and sales tax returns by the accused.
5.2. Therefore, he has submitted that if the Court
compares the ingredients of both the FIRs, it cannot be
said that the FIRs arise from the same transaction,
incident, or nature of evidence. He has relied on the
judgment of the Hon'ble Apex Court in the case of P.
Shreekumar versus State of Kerala reported in 2018 (4)
SCC 579, specifically pointing to paragraph 33 as
relevant. Hence, he prays that considering the various
other judgments of the Hon'ble Apex Court, which are
not required to be considered at this stage, and
considering the judgment of the Hon'ble Apex Court in
the case of Neeharika Infrastructure Pvt. Ltd. versus
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State of Maharashtra and Others reported in 2021 SCC
OnLine SC 315, with particular emphasis on para 80, no
case is made out to exercise the powers under Section
482 of the Cr.P.C. Moreover, considering the fact that
charge-sheet is now filed pursuant to the impugned FIR,
which is the subject matter of the present petition, in
view of the judgment of the Hon'ble Apex Court in the
case of Iqbal @ Bala and Others versus State of Uttar
Pradesh reported in (2023) 8 SCC 734, he has prayed
that the present petition may be dismissed.
6.1. I have considered the rival submissions made at the
bar by the respective parties. I have also perused the
factual aspect of the matter, which is discussed as above.
It is evident that the first FIR, filed by Karshanbhai
Velaji Chaudhary - a private party on 7.8.2021,
primarily accuses the present petitioner. The complainant
alleges that the present petitioner prepared bogus
challans for the sales tax (VAT). The process was
purportedly carried out by the present petitioner, who
gained the confidence of the complainant and four other
petrol pump owners. When the complainant received a
notice in the year 2021 from the Sales Tax Department
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regarding the non-payment of VAT for his petroleum
pump in 2016-17 and 2017-18, he consulted advocate
Kamleshbhai Heruwala. Kamleshbhai Heruwala informed
him that the present petitioner, Sagar Hareshbhai
Banawala, who prepared the challan, had sent it to his
office but, in reality, the challan was never credited to
the treasury office. Consequently, the impugned FIR was
filed on 7.8.2023, at Deesa North Police Station, under
Sections 406, 420, 465, 467, 468, and 471 of the Indian
Penal Code.
6.2. On the other hand, the FIR challenged on the
grounds of being a second FIR is filed by Bhartiben,
daughter of Revabhai Khengarbhai Desai, the Assistant
Commissioner Sales Tax Department, Unit No.35 at
Deesa, Dist. Bansskantha on 29.9.2021. This FIR, dated
14.10.2021, implicates 35 persons, including the present
petitioner, for offenses punishable under Sections 406,
420, 465, 467, 468, 471, 167, and 120-B of the Indian
Penal Code, as well as Sections 13(1)(b) and 13(1)(c) of
the Prevention of Corruption Act. The FIR indicates a
large-scale fraud committed in the Sales Tax (VAT)
Department, involving certain officials of the VAT
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Department and individuals like the present petitioner
serving as consultants or accountants. The alleged fraud
results in a substantial loss of VAT amounting to
Rs.5,98,29,882/- across 29 accounts. Primarily, considering
the averments and the nature of this FIR registered by
the Assistant Commissioner Sales Tax Department in
October 2021, it cannot be deemed a second FIR based
on the judgment cited by the petitioner.
6.3. Further, considering of the judgment referred by the
petitioner, specifically para 32, reveals that it may not
be prima facie helpful to the present petitioner. The
judgments in T.T. Anthony (supra) and Amitbhai
Anilchandra Shah (supra), relied upon by the petitioner,
are not directly relevant to the facts and circumstances
of the current case. These judgments assert that there
cannot be two FIRs related to the same offense or
occurrence, and the registration of a fresh FIR under
such circumstances is impermissible and violative of
Article 21 of the Constitution of India.
6.4. Subsequent to the judgment in the case of Amitbhai
Anilchandra Shah (supra), the Hon'ble Apex Court has
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addressed the issue of the sameness of FIRs in various
judgments. Relevant to the present case is the judgment
cited by the learned Additional Public Prosecutor (APP)
in the case of P. Shreekumar (supra), especially
paragraph 33. It is crucial to consider this judgment in
determining the legality of the second FIR. Para 33 of
that judgment as under:
"33) It is for the reasons that firstly, the second FIR
was not filed by the same person, who had filed the
first FIR. Had it been so, then the situation would
have been somewhat different. Such was not the case
here; Second, it was filed by the appellant as a
counter-complaint against respondent No.3; Third, the
first FIR was against five persons based on one set of
allegations whereas the second FIR was based on the
allegations different from the allegations made in the
first FIR; and Lastly, the High Court while quashing
the second FIR/charge-sheet did not examine the issue
arising in the case in the light of law laid down by
this Court in two aforementioned decisions of this
Court in the cases of Upkar Singh (supra) and
Surender Kaushik (supra) and simply referred three
decisions of this Court mentioned above wherein this
Court has laid down general principle of law relating
to exercise of inherent powers under Section 482 of the
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Code."
6.5. Considering this judgment, it is evident that its
applicability is clear in the context of the present case,
where two different individuals have filed separate FIRs.
While some facts may be identical, there are numerous
transactions involved in the impugned FIR. Multiple
individuals are implicated, and various offenses are
alleged, extending beyond those mentioned in the earlier
FIR. In light of this, it is pertinent to refer to the
judgment of the Hon'ble Apex Court in the case of
Vasrhaben Kantilal Purani versus State of Gujarat and
Others reported in (2019) 11 SCC 774. The test of
sameness, as articulated in paragraphs 4 and 5 of that
judgment, is crucial to consider, as under:
"4. Having heard learned counsel for the parties and
in the facts and circumstances of the case as also the
law laid down by this Court, we are of the opinion
that the High Court ought not to have exercised its
inherent powers to quash the proceedings arising out of
the second FIR as the investigation is at nascent stage
and it will hamper the investigation in the case.
Learned counsel for the appellant has rightly placed
reliance on the judgments of this Court in Ram Lal
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Narang v. State (Delhi Administration), reported in
(1979) 2 SCC 322, and Nirmal Singh Kahlon vs. State
of Punjab, reported in (2009) 1 SCC 441, wherein this
Court has observed that IInd FIR/subsequent FIR is
permissible where the conspiracy discovered later is
found to cover a much larger canvas with broader
ramifications and it cannot be equated with the earlier
conspiracy which covered a smaller field of narrower
dimensions.
5. In the present case the IInd FIR/subsequent FIR
was lodged on a complaint made by the same
complainant on account of occurrence of a separate
incident after a gap of 2½ years of the first complaint
in regard to completely different set of allegations and
against different set of accused, though including the
only accused of first complaint as well. In our opinion,
the High Court has erred in quashing the proceedings
arising out of the subsequent FIR filed by the
appellant by applying the principle of "sameness" and
proceeding on the basis that the subsequent FIR lodged
by the appellant was in fact a IInd FIR."
6.6. It is also relevant to refer the judgment of the
Hon'ble Apex Court in the case of Chirag M. Pathk &
Others versus Dollyben Kantilal & Others rendered in
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Criminal Appeal Nos.1947-1956 of 2017 (arising out of
SLP (Cri.) Nos.1218-1227 of 2014) dated 15.11.2017, more
specifically, paragraph 21 to 30 are relevant, as under:
"21) In short, having regard to the totality of the
factual allegations made for constituting the
commission of several offences in relation to every Co-
Operative Society, it is not possible to hold that all
the FIRs are overlapping on one another and that first
FIR alone will be sufficient to take care of the
remaining five FIRs.
22) There may be some overlapping allegations in the
FIRs but that is due to myriad reasons and one
reason could be that all the Co-operative Societies
were engaged in the same business of sale/purchase of
housing and the plots of land which were sold to
different persons in different areas by same accused
persons due to their involvement in the affairs of all
Co-Operative Societies. However, these facts were not
by themselves sufficient to quash the five FIRs at the
stage of investigation itself.
23) In our view, such issues and many more, namely,
the nature and manner of conspiracy, whether it was
confined to each Society or there was one or larger
conspiracy, how and in what manner it was
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accomplished, who were parties to it, who were those
persons who secured financial benefits, what was the
modus operandi for mis-appropriation of the funds of
each Society and how the funds were siphoned off
from each Society etc., need detailed investigation with
respect to each Cooperative Society. Once the
investigation is complete in relation to each Society,
the same would form part of the separate charge-sheet
for being proved with the aid of evidence in a
competent Court against each Society and persons
involved in the scam. It is for the Court to examine
the factual issues arising in every case by appreciating
the evidence once adduced in support thereof and pass
appropriate orders in accordance with law.
24) The High Court, in exercise of its powers under
Section 482 of the Code, cannot undertake a detailed
examination of the facts contained in the FIRs by
acting as an Appellate Court and draws its own
conclusion. It is more so when investigation in other
Societies is not yet complete.
25) In our considered opinion, it is only when on
reading the FIR, a sheer absurdity in the allegations
is noticed and when no prima facie cognizable case is
made out on its mere reading due to absurdity in the
allegations or when facts disclose prima facie
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cognizable case and also disclose remarkable identity
between the two FIRs as if the first FIR is filed
second time with no change in allegations then the
Court may, in appropriate case, consider it proper to
quash the second FIR. Such is not the case here.
26) Indeed, in our view, few distinguishing factual
allegations mentioned above are enough to repel the
challenge made by the accused persons to the
impugned FIRs and the same should have been made
basis to dismiss the Criminal Applications of the
accused persons.
27) We may, at this stage, apposite to mention a
Three Judge Bench decision of this Court in State of
West Bengal & Ors. vs. Swapan Kumar Guha & Ors.
(AIR 1982 SC 949) wherein this Court examined
somewhat a similar question in the context of the
powers of the Court.
28) The learned Chief Justice, Y.V Chandrachud and
Justice A.N. Sen, speaking for the Bench in their
concurring opinion held as under:
"Whether an offence has been disclosed or not must
necessarily depend on the facts and circumstances of
each particular case. If on a consideration of the
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relevant materials, the Court is satisfied that an
offence is disclosed, the Court will normally not
interfere with the investigation into the offence and
will generally allow the investigation in the offence to
be completed for collecting materials for proving the
offence. The condition precedent to the commencement
of investigation under S.157 of the Code is that the
F.I.R. must disclose, prima facie, that a cognizable
offence has been committed. It is wrong to suppose
that the police have an unfettered discretion to
commence investigation under S.157 of the Code. Their
right of inquiry is conditioned by the existence of
reason to suspect the commission of a cognizable
offence and they cannot, reasonably, have reason so to
suspect unless the F.I.R., prima facie, discloses the
commission of such offence. If that condition is
satisfied, the investigation must go on. The Court has
then no power to stop the investigation, for to do so
would be to trench upon the lawful power of the
police to investigate into cognizable offences."
29) We apply the aforesaid principle which, in our
opinion, applies to the facts of the case on hand and
accordingly decline to quash the impugned FIRs.
30) Learned counsel for the respondents (accused)
however, vehemently tried to support the impugned
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judgment and took us through the entire factual
allegations of all six FIRs. It was his submission that
on perusal of the impugned FIRs, there does exist
overlapping of the offences in the FIRs on identical
allegations with no change in any of the six FIRs
except repetition of the words and hence the High
Court was right in quashing the five FIRs."
6.7. Therefore, considering the fact that although the
incident to some extent involved in the first FIR is also
covered in the second FIR, the second FIR additionally
reveals a conspiracy between the accused persons named
in the later FIR. Hence, it cannot be concluded that the
impugned FIR is in violation of the provisions of Article
21 of the Constitution. On the contrary, considering the
allegations, the accused persons involved, and the
complainant, there exists a significant difference between
the two FIRs. This distinction cannot be overlooked by
exercising the powers under Section 482. Consequently,
the present petition is required to be dismissed.
6.8. There is another ground for dismissing the present
petition, which pertains to the completion of a thorough
investigation and the filing of a charge-sheet. The
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investigation has resulted in the culmination of Special
(ACB) Case Nos. 1 of 2022, 2 of 2022, 1 of 2023, and 2
of 2023 pursuant to the said FIR. Currently, the hearing
process is also underway. In light of the decision in the
case of Iqbal @ Bala and Others (supra), particularly
paragraphs 7, 9, and 10 are relevant, as under:
"7. It is relevant to note that the victim has not
furnished any information in regard to the date and
time of the commission of the alleged offence. At the
same time, we also take notice of the fact that the
investigation has been completed and charge sheet is
ready to be filed. Although the allegations levelled in
the FIR do not inspire any confidence more
particularly in the absence of any specific date, time,
etc. of the alleged offences, yet we are of the view
that the appellants should prefer discharge application
before the Trial Court under Section 227 of the Code
of Criminal Procedure (CrPC). We say so because even
according to the State, the investigation is over and
charge sheet is ready to be filed before the competent
court. In such circumstances, the Trial Court should be
allowed to look into the materials which the
investigation officer might have collected forming part
of the charge sheet. If any such discharge application
is filed, the Trial Court shall look into the materials
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and take a call whether any case for discharge is
made out or not.
9. At this stage, we would like to observe
something important. Whenever an accused comes
before the Court invoking either the inherent powers
under Section 482 of the Code of Criminal Procedure
(CrPC) or extraordinary jurisdiction under Article 226
of the Constitution to get the FIR or the criminal
proceedings quashed essentially on the ground that
such proceedings are manifestly frivolous or vexatious
or instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court owes
a duty to look into the FIR with care and a little
more closely.
10. We say so because once the complainant decides
to proceed against the accused with an ulterior motive
for wreaking personal vengeance, etc., then he would
ensure that the FIR/complaint is very well drafted
with all the necessary pleadings. The complainant
would ensure that the averments made in the
FIR/complaint are such that they disclose the necessary
ingredients to constitute the alleged offence are
disclosed or not."
6.9. In light of the aforementioned position of the
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law and considering the fact that the impugned FIR has
now culminated into a charge-sheet and is currently
proceeding by way of registering a Special (ACB) Case
before the competent court, with ongoing proceedings, I
am of the opinion that no grounds are made out to
interfere with the impugned FIR. As discussed earlier, it
cannot be asserted that there is sameness of FIRs, and
both FIRs necessitate separate investigation and trials.
Accordingly, allowing the legal processes to continue
independently aligns with the interest of justice.
6.10. 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, which is 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
pendency of the quashing petition under Section 482
Cr.P.C and/or under Article 226 of the Constitution of
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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
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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;
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;
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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;
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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
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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
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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."
6.11. I am of the opinion that no case is made out
to exercise the powers under Section 482 of the Criminal
Procedure Code, 1973 by quashing the impugned FIR
filed.
7. As a result, the present petition is dismissed with
no order as to costs.
Rules stands discharged.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
