Gujarat High Court

Suresh Haturam Nandwani vs State Of Gujarat on 13 December, 2023

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     R/CR.MA/22760/2021                                      ORDER DATED: 13/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 22760 of 2021

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                          SURESH HATURAM NANDWANI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. NITESH G JAIN(7178) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 13/12/2023
                                  ORAL ORDER

1. Rule returnable forthwith. Learned APP waives

service of notice of Rule on behalf of respondent - State.

2. The present application is filed for seeking the

following the main reliefs:

"(A) YOUR LORDSHIPS be pleased to call for the records and proceedings of FIR being C.R. No. 1-

11210055211552/2021 registered with Salabatpura Police Station, Surat, for the offences punishable under Section 354 A and 509 of Indian Penal Code in the interest of justice; and after perusing the same be pleased to quash the impugned FIR and proceedings

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pursuant thereto, in the interest of justice;

(B) YOUR LORDSHIPS be pleased to stay the further proceedings of FIR being 1-11210055211552/2021 registered with Salabatpura Police Station, Surat, and after perusing the same be pleased to Stay the impugned FIR and all proceedings pursuant thereto Ahmedabad pending the admission, hearing and final disposal of this application;"

3. Brief facts of the case as per the case of the

applicant in this application are as such that on

10/09/2021 and on 11/09/2021, the present complainant

and other officers came to detain the applicant herein.

It is further the case of the applicant in this application

that the present applicant was not cooperating with police officers and was also misbehaving with them and

the people around. He did not sign the arrest memo,

when head constable came to arrest applicant in another

FIR. The applicant was then taken to the hospital for

RTPCR test before producing into court and even there

he started shouting and misbehaving, the female

constable tried to calm him but in response, he removed

off his clothes to embarrass her. Hence, the FIR is

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

application that he is social activist and he has

complained against salabatpura Police station on social

media platform so only to take revenge from him, this

present FIR is lodged arraigning present applicant.

4. Heard Mr. Nitesh G. Jain, the learned counsel for

the applicant and Mr. Soaham Joshi, the Additional

Public Prosecutor (APP) for the respondent No.1 - State

of Gujarat.

5. The learned counsel for the applicant has drawn

my attention towards the averments made in the

impugned F.I.R. as well as some news items published in the newspaper. He has submitted that since the

applicant, being a journalist, has raised voice against the

police authority, the applicant is falsely implicated in the

incident. Furthermore, he has submitted that as such, no

incident has taken place, but with a view to pressurize

the applicant, such false complaint is lodged against the

applicant herein. Furthermore, he has submitted that on

bare reading of the impugned F.I.R., no ingredients of

Sections 354A & 509 of the Indian Penal Code are

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satisfied. Therefore, he has prayed that the present be

allowed by quashing the impugned F.I.R. and proceedings

pursuant thereto, as the F.I.R. is lodged with malafide

intention and, therefore, he has submitted that 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, this Court should exercise the powers

under Section 482 of the Cr.P.C. by allowing the prayers

made in the present application to prevent the abuse of

process of law.

6. Per contra, the Assistant Public Prosecutor (APP) representing respondent No.1 has contended that charge-

sheet has already been filed in the matter after due investigation. The present complaint was initiated by one

constable, who alleged that, on a particular day, the

accused exposed himself by removing his clothes in front

of a lady constable and made obscene gestures.

Furthermore, the learned APP has stated that the

charge-sheet has been filed, charges have been framed,

and as per the online status, the matter is lastly listed

before the trial court on 8.11.2023, which is at the stage

of framing charges. Consequently, he has contended that

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considering the seriousness of the allegations, taking into

account the completion of the investigation, and the filing

of the charge-sheet, prima facie case has been established

against the applicant. The learned APP has contended

that, now that the criminal case is registered and in

progress, specifically at the stage of framing of charges,

the Court should refrain from exercising its powers under

Section 482 of the Cr.P.C. and allow the accused person

to face the trial proceedings. Moreover, the learned APP

has disputed the applicant's submission regarding

pressurization and victimization for his raising voice

against the government, which resulted into filing of

such F.I.R., asserting that such claims lack a factual

basis and no material has been placed on record, which remotely supports the case of the applicant. Additionally,

he has contended that during the investigation of prior

offence registered at the Salabatpura Police Station,

Surat, under C.R. No.11210055211549 of 2021 (Section

186 of the I.P.C.) and another F.I.R. being C.R.

No.11210055211551 of 2021 (Sections 323, 504, 506(2) of

the I.P.C.), the accused created disturbance by undressing

in front of a lady constable. Hence, the learned APP has

argued that this conduct of the applicant demonstrates

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the accused's highhanded conduct and disturbed as well

as ill-mental state. Consequently, he prays for the Court

not to exercise its powers under Section 482 of the

Criminal Procedure Code.

7.1 I have considered the rival submissions made at the

bar by the respective parties. I have also considered the

material available on the record. Additionally, I have

taken into account the earlier report dated 3.10.2023

tendered by the concerned Police Station, wherein it is

specifically stated that the incident has taken place

during the investigation of the earlier two offences

registered at the Salabatpura Police Station, Surat, being

C.R. No.11210055211549 of 2021 (under Section 186 of the I.P.C.) and another F.I.R. being C.R.

No.11210055211551 of 2021 (under Sections 323, 504,

506(2) of the I.P.C.). At that time, the present applicant

- accused began behaving in an unusual manner by

removing his clothes in front of a on duty lady constable

and also exhibited some obscene gestures. This, prima

facie, constitutes an offence under Section 354A & 509 of

the Indian Penal Code, as follows:

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"Section 354A in The Indian Penal Code:-

354A. Sexual harassment and punishment for sexual harassment.--(1) Aman committing any of the following acts--

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 509 in The Indian Penal Code:-

509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that

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such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."

7.2 Considering the fact that now the ingredients of the

offences of abovementioned sections are attracted in view

of the allegations made in the F.I.R. It is also relevant

to note that now the charge-sheet has already been filed,

and the criminal case is also registered and the

proceeding of trial is at the state of framing of charge.

7.3 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

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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

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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;

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

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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;

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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

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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 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

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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."

7.4 It is required to refer the judgment of the Hon'ble

Apex Court in the case of Iqbal Alias Bala & Others

versus State of Uttar Pradesh reported in (2023) 8 SCC

734, more specifically, paragraphs 6, 7 & 8 are relevant, as under:

"6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether we should quash the FIR?

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

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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 and take a call whether any case for discharge is made out or not.