Arvind Ramavtar Yadav vs State Of Gujarat
2023 Latest Caselaw 8355 Guj

Gujarat High Court

Arvind Ramavtar Yadav vs State Of Gujarat on 4 December, 2023

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     R/CR.MA/18979/2021                                      ORDER DATED: 04/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 18979 of 2021

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                            ARVIND RAMAVTAR YADAV
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR. RAJENDRA D JADHAV(10026) 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 : 04/12/2023

                                    ORAL ORDER

1. The matter was heard at length in the first

session and as the Court was not inclined to allow this

application, learned advocate for the applicant sought time till 1.30 p.m. to take instructions of his client-applicant on the

point of inviting a reasoned order or withdrawal of this

application. However, at 1.30. p.m. when the matter was

called out, learned advocate for the applicant prayed for time

to argue the matter further. This practice of taking undue

advantage of the process of the Court is required to be

deprecated. When the Court has given ample opportunity to

learned advocate for the applicant to present his case, the

matter was argued at length by the learned advocate for the

applicant and he took time for appropriate instructions only,

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time was granted to the applicant and at this stage, different

requests made by learned advocate is not proper. Therefore,

while passing the detailed order dismissing this application,

this Court is of the opinion to impose exemplary cost of

Rs.50,000/-, however, considering the fact that ultimately, the

interest of the litigant is jeopardized, the Court is refraining

itself from imposing such cost with a warning to the learned

advocate for the applicant to be more careful in future in

playing such mischief with the Court in making submissions.

2. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`the Code' for short) for

the following main prayers:

"8(A) That this Hon'ble Court may be pleased to admit and allow this petition.

(B) That this Honourable Court be pleased to quash and set aside the complaint registered as C.R.No.11210061200469 of 2020 under sections 193, 196, 198, 199, 200, 406 and 420 of the Indian Penal Code with Lalgate Police Station on 19.07.2020 against the petitioner in the interest of justice.

(C) Pending admission and or final disposal of this petition, this Honourable Court be pleased to stay the further proceedings of the complaint registered as CR

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No.11210061200469 of 2020 sections 193, 196, 198, 199, 200, 406 and 420 of the Indian Penal Code with Lalgate Police Station on 19.07.2020 against the petitioner in the interest of justice.

(D) xxxx (E) xxxxx"

3. The facts leading to filing of this application are

such that the impugned complaint came to be filed by the

respondent no.2 on 19.7.2020 alleging that, in the year 2017-

18, pursuant to the advertisement published by the Surat

Municipal Corporation (`SMC' for short), the applicant applied

for the post of Beldar (VBDC) along with requisite documents

relating to educational qualification, wherein it is informed

that the applicant has passed 5 th class and further

undertaking form was also filled in along with his

certificates; that for the said post, educational qualification of

minimum 4 th standard pass and maximum 9 th standard pass;

that the practical test of the applicant was conducted, in

which he succeeded and he was selected of the post of

Beldar and posted at Varachha Zone Office of Surat

Municipal Corporation; however, on the complaint received

through mail to the office of SMC that the applicant has

studied upto 12 th standard and also is persuading his 2 nd

year of B.Com., the applicant has committed cheating and

fraud with a view to get job in SMC. There were also other

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persons, who have done similar type of cheating and fraud

and therefore the impugned complaint came to be filed

against the applicant and others for the offences punishable

under Sections 193, 196, 198, 199, 200, 406 and 420 of the

Indian Penal Code.

4. Heard learned advocate for the applicant and

learned APP for respondent-state.

5. Learned advocate for the applicant has submitted

that the allegations levelled in the complaint are completely

false and frivolous and is filed with an ulterior intention of

harassing the applicant; that the said advertisement is not in

consonance with Article 16 of the Constitution of India and

discriminative in nature in terms of public employment, qua

the imposition of limitation on higher studies of the proposed

candidates; that the applicant has not given any undertaking

and letter/document has been submitted by the applicant;

that the applicant has applied for the said vacancy and have

submitted and declared that applicant has passed the 5 th

standard but it is nowhere mentioned that the applicant is

over qualified; that the applicant was selected on the basis of

his performance in practical exam; that there was no

condition of `disqualification in case of higher education/over

qualification' nor it was mentioned in the general assembly

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resolutions nor there was any such condition mentioned in

the acknowledgment with intimidate language stating that `if

the candidate found over qualified than what is submitted at

the time of application, in that case, an appointment will be

called off, take clear note of it'; that looking to the

acknowledgment letter for appointment along with copy of

condition mentioned above, there is no such condition of

`minimum 4 th standard and maximum 9 th standard candidates

are eligible and candidates studied more than 9 th standard

are not entitled' and the same also makes it clear that the

applicant has only agreed and bind by signing the

acknowledgment letter which clearly mentioned the conditions

in the resolutions declared by the SMC and therefore, there

is no false information provided by the applicant and

therefore the impugned complaint is required to be quashed

and set aside by allowing this application. He has further

submitted that even after filing of chargesheet in the matter,

the High Court can quash the FIR as well as chargesheet.

He has also submitted that if any offence is barred by the

provisions of Section 195 of the Code, then also FIR is

required to be quashed as written complaint is required to be

filed before the Magistrate.

6. In support of his submissions, he has relied on

the judgments in the cases of State of Haryana V/s

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Bhajanlal & Ors. Reported in AIR 1992 SC 604 and Anand Kumar Mohatta V/s State (Govt. of NCT of Delhi) reported in (2019)11 SCC 706 as well as the judgment in the case of

Ganchi Asifbhai Ahemadbhai V/s State of Gujarat & 1 reported in 2016 SCC Online Guj 6026.

7. Per contra, learned APP Mr.Jayswal has submitted that when the applicant has entered into employment by

suppressing material about his correct educational

qualification, it is against the provisions of law and therefore

the impugned complaint is required to be continued and let

the applicant may be tried before the learned trial Court. He,

therefore, prayed to dismiss this application.

8. I have heard learned advocates for the parties and

perused the material placed on record. It is the case of the

complainant, who is the authorized officer of the Surat

Municipal Corporation, as alleged, that the applicant and

others, against whom the impugned complaint is lodged, have

declared incorrect details at the time of entering into

employment, suppressed the correct facts and given wrong

declaration. However, the applicant denies the same.

Therefore, when there are disputed question of facts on the

face of the record, the case needs full-fledged trial for

bringing the truth on record. This Court is therefore of the

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opinion that the complaint cannot be quashed at this stage

by exercising inherent powers under Section 482 of the Code.

9. Further, the chargesheet is already filed in this

case. Therefore, relying upon the case of Iqbal @ Bala V/s

State of U.P. reported in (2023)8 SCC 734 and the case of Kandhal Sarman Jadeja V/s State of Gujarat reported in 2019(2) GLR 1462, this Court is of the opinion that there cannot be any bar under Section 195 of the Code.

Considering the facts of the present case, position of law

cannot be interpreted, as canvassed by learned advocate for

the applicant, considering the submissions made at the bar,

more particularly, regarding the bar of Section 195 of the

Code. There are serious allegations in the FIR and offence

is made out under Sections 406 and 420 of IPC also and

accordingly, chargesheet is also filed.

10. Considering the judgment in the case of Neeharika

Infrastructure Pvt.Ltd. V/s State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 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

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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

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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;

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

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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;

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

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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 investigation, after

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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."

10. In view of the above judgments, more particularly,

the judgment in the case of Iqbal ( surpa), this Court is of

the consistent view that once chargesheet is filed, normally

the applicant should be relegated to avail appropriate remedy

available under the law before the appropriate Court.

11. In view of the above discussion, this application is

required to be dismissed and is accordingly dismissed.

(SANDEEP N. BHATT,J) SRILATHA