Kailashben Balubhai Bhaliya vs State Of Gujarat
2023 Latest Caselaw 5152 Guj

    R/SCR.A/8175/2023                               ORDER DATED: 04/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 8175 of 2023

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                        KAILASHBEN BALUBHAI BHALIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 04/07/2023
                               ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.

2. By way of this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, "the Cr.P.C."), the petitioner has prayed to quash and set aside the complaint being FIR No.11193002220202 registered with Jafrabad Marine Police Station, District: Amreli for the offences punishable u/s. 143, 341, 447, 337 and 427 of the Indian Penal Code and all other consequential proceedings.

3. Learned advocate Mr. B. M. Mangukiya appearing for the petitioner submitted that petitioner and her husband are social workers and are devoting their time in social service as well. Earlier the husband of the petitioner was elected as Sarpanch of the village and in the last

R/SCR.A/8175/2023 ORDER DATED: 04/07/2023

election, petitioner has been elected as Sarpanch. The husband of the petitioner has approached the National Green Tribunal, Western Zone, since the Company of respondent no.2 are violating all environmental laws and causing great harm of the environment clearance. The Tribunal while hearing the matter appointed fact finding committee and directed to file a report and after considering the report, the Tribunal has cancelled the environment clearance certificate. Thereafter, on 23.03.2022, the petitioner was constrained to issue notice to respondent no.2 company to remove the stalking of soil since, it creates great disturbance to the environment and cases of several diseases to the villagers. He also submitted that the petitioner lost her father on 03.05.2022 and the last rituals of her father have been performed on 14.05.2022 and as per the custom prevalent in the caste of the petitioner, the petitioner in ordinary circumstances cannot leave the residence for about a month. Though the petitioner was not moving out of her residence because she lost her father, a FIR came to be lodged by respondent no.2 on 25.05.2022 and alleged that on 24.05.2022, the petitioner along with 7-8 other ladies obstructed the work of the company and prevented the operation of dozer. The next day when the complainant visited the site, he found that all the glasses of the dozers have been broken and caused a loss of Rs. 1 lakh. He also submitted that FIR is abuse of process of Court and therefore, the petitioner has no other option but to approach this Hon'ble Court and also submitted that false and frivolous FIR has been lodged against the petitioner with malicious intent. He also submitted that the allegations made in the FIR are so vexatious that at night women have came out and threatened the

R/SCR.A/8175/2023 ORDER DATED: 04/07/2023

engineers, supervisors and operation of the respondent no.2. He further submitted that from the FIR it clearly goes to show that this afterthought FIR has been lodged against the petitioner as a retaliation to the actions taken by the petitioner and her husband, who are objecting the activities of the respondent to the extent where they are causing serious damage to the environment. He also submitted that the petitioner is quite innocent and she has been falsely implicated in the crime, even the bare reading of the complaint and other facts and circumstances makes it clear that no offence is made out against the present petitioner. Therefore also, this is a fit case where discretion deserves to be exercised in favour of the petitioner.

4. Learned APP Ms. Divyangna Jhala for the respondent-State has resisted this on the ground that the powers under section 482 of Cr.P.C., are to be exercised by the Court sparingly and in an appropriate case at an appropriate time. Presently, the investigation in this case is going on and it is at a crucial stage, and therefore, the complaint may not be quashed.

5. Having heard learned advocate for the petitioner and learned APP for the respondent State, this Court notices that this request is made for exercise of inherent powers under section 482 of the Cr.P.C., which are very wide amplitude. These inherent powers can be exercised either to sure the ends of justice or to prevent the abuse of process of law. However, it would dependent on the facts and circumstances of each case and no category is prescribed by the Court for the same. What is required to be considered is the nature

R/SCR.A/8175/2023 ORDER DATED: 04/07/2023

and gravity of the offence. Heinous and serious offences, such offence of rape or dacoity or murder or the offence leading to serious injuries to the society at large etc. may not be considered for the purpose of exercise of inherent powers.

6. Ordinarily, it is expected that the category of commercial offences or disputes of mercantile and of civil nature or matrimonial disputes or disputes of partnership firms etc., the Court may consider to exercise these powers, when the parties have chosen to settle the disputes. The Court also need to record, whether the continuation of the criminal prosecution would cause extreme prejudice to the accused or would cause him injustice, if not allowed quashment, even after the parties have settled all their disputes. These powers are required to be exercised sparingly, as stated above. Since, the offence against the society, it cannot be said to be a private FIR between the parties.

7. It appears from the allegations made in the impugned FIR that the petitioner and other seven to eight women armed with wooden sticks and stones prevented the work going on through dozer during night hours and therefore, the staff of the respondent no.2 explained them not to obstruct the said work, however, the said women party pelted stones on the dozers and thus, they have broken total 6 glasses of dozers and caused loss of Rs.1 lakh to the assets of respondent no.2. It is not a matter of dispute that the investigation is till going on and it is at present at a crucial stage. Since, the investigation is going on, it would be too premature for this Court to opine on any of the submissions made with regard to lopsided investigation. The Investigation Officer has also not submitted his final report,

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therefore, any of his comment on the same would be in the opinion of this Court is at a premature stage.

8. At this stage, in a recent decision of the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, is required to be referred to. After taking into consideration the earlier decision on exercising the powers under Section 482 of the Code of Criminal Procedure including the decision of State of Haryana V. Bhanaj Lal, reported in 1992 Supp (1) SCC 335 and others. The Hon'ble Supreme Court has observed in Para No.80, which reads 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 of Cr.P.C and/or under 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 of Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C. and/or under section 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 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;

 R/SCR.A/8175/2023                                      ORDER DATED: 04/07/2023




          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 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 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

R/SCR.A/8175/2023 ORDER DATED: 04/07/2023

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 of 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 of 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 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

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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 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."

9. Considering the allegations made in the impugned FIR, prima facie, the involvement of the petitioner in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. could be exercised in favour of the petitioners.

10. For the foregoing reasons, the petition is dismissed.

(SAMIR J. DAVE,J) MEHUL B. TUVAR