Balwantsinh Gagubhai Parmar vs State Of Gujarat
2023 Latest Caselaw 8692 Guj

Gujarat High Court

Balwantsinh Gagubhai Parmar vs State Of Gujarat on 15 December, 2023

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   R/CR.MA/20903/2023                              ORDER DATED: 15/12/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
   R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                      FIR/ORDER) NO. 20903 of 2023
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                   BALWANTSINH GAGUBHAI PARMAR
                                    Versus
                             STATE OF GUJARAT
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Appearance:
MR ANKIT K MEHTA(10393) for the Applicant(s) No. 1,2,3,4,5
RAJAN R KOTECHA(9423) for the Applicant(s) No. 1,2,3,4,5
NOTICE NOT RECD BACK for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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   CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                             Date : 15/12/2023
                              ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule for the respondent-State.

2. Present application is filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") seeking to quash and set aside the FIR being CR No.11208003221294 of 2022 registered with Gandhigram-2 (University) Police Station, Rajkot for the offences punishable under Sections 323, 504, 114, 403, of the Indian Penal Code, 1860 and Section 135(1) of the Gujarat Police Act and all the consequential proceedings arising therefrom.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the applicants submits that the applicants have nothing to do with the offence alleged and they are falsely implicated in the offence. It is submitted that the facts of the case are that on 31.10.2022, when the respondent No.2 complainant was riding his bike after closing his shop, petitioner No.1 herein

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stopped respondent No.2, grabbed him by the collar, and verbally abused respondent No.2. It is also alleged that petitioner No.1 was holding an iron pipe, and further, petitioner No.1 called his son and nephew, i.e., petitioner Nos.2 and 3, respectively. It is alleged that petitioner No.2 was equipped with a pipe, and petitioner No.3 was equipped with a knife, and they together beat respondent No.2 with their fists, while petitioner Nos.1 and 2 delivered blows with the pipe. It is further alleged that petitioner Nos.4 and 5 also arrived at the scene of the incident and beat respondent No.2. It is submitted the learned advocate for the applicant that so far as the offence under Section IPC is concerned, the same is non-cognizable as per first schedule of Code of Criminal Procedure and Section 135 (1) of the GP Act is concerned, the is also non-cognizable as the police authority has no power to straightway registered the complaint. Therefore, the application be allowed as the applicants are customers, and customers are not held liable for the activities conducted by the manager under the Immoral Traffic Prevention Act.

5. Learned APP has vehemently opposed the present application and submitted that the investigation is over and a chargesheet has been filed. It is asserted that the present applicants are directly involved in the offence. Therefore, the present application may be dismissed.

6. Having heard the learned advocates for the respective parties and having gone through the documents on record, it appears that all the offenses leveled against the present applicant are non- cognizable offenses. Even the Investigating Officer, appearing before

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the Court, fairly stated that he has not obtained any permission for initiating the investigation from the Magistrate. Therefore, the action taken by the police authority is clearly in violation of Section 155 of the Cr.PC, which provides that 'when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offense, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate.

7. The present case is squarely covered by the judgment passed by the Apex Court in the case of State of Haryana v. Bhajal Lal, reported in AIR 1992 SC 604. As no permission was sought from the learned Magistrate to investigate the crime.

8. Further, the present case is squarely covered by the judgment passed by the Apex Court in the case of Keshav Lal Thakur v. State of Bihar, reported in (1996) 11 SCC 557, wherein the Hon'ble Court has observed that:

"We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Cr.P.C. of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Cr.P.C. but, admittedly, no such order was passed in the instant case.

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That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d) Cr.P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non- cognizable offence has been made out."

9. In the aforesaid backdrop, complaint is filed. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872.

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10. After going through the contents of complaint, it appears that uncontroverted allegations are made in the compliant. If accepted the same in toto, the commission of offence under the provisions of IPC and Gujarat Police Act is not made out. Even if the allegations made in the complaint are taken at its face value and accepted in its entirety, did not constitute any offence or make out the case alleged one.

11. In view of the above, it appears that the FIR does not reveal any of the ingredients of the alleged criminal offence and the case appears to be nothing but an abuse of process of law and bona fide lapse.

12. In the result, this application is allowed. The Complaint/F.I.R. being CR No.11208003221294 of 2022 registered with Gandhigram-2 (University) Police Station, Rajkot is hereby ordered to be quashed and set aside qua the present applicants. All consequential proceedings pursuant thereto shall also stand terminated. Rule is made absolute. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI