Gujarat High Court

Arjanbhai Ukardabhai Pansal vs State Of Gujarat on 9 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/11093/2018                            JUDGMENT DATED: 09/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 11093 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                   ARJANBHAI UKARDABHAI PANSAL & 2 other(s)
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NIRAV K PADHIYAR(5678) for the Applicant(s) No. 1,2,3
MR VIJAY H NANGESH(3981) 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 : 09/06/2023

                               ORAL JUDGMENT

1. By way of this petition under Section 482 of

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

the applicants pray for the following reliefs:

R/CR.MA/11093/2018 JUDGMENT DATED: 09/06/2023

"8(a) This Hon'ble Court may be pleased to allow this

Criminal Misc.Application and be pleased to quash the FIR

being C.R.No.II-30 of 2018 dated 10.05.18 registered before

Dhanera Police Station, District Banaskantha for the offences

punishable u/s 294(B), 506(2), 114 of Indian Penal Code and

all the proceedings which are arisen from the said FIR, in

the interest of justice.

(b) Pending admission, hearing and final disposal of this

application, this Hon'ble Court may be pleased to stay

further investigation of the FIR being C.R.No.II-30 of 2018

dated 10.05.18 registered before Dhanera Police Station,

District Banaskantha for the offences punishable u/s 294(B),

506(2) and 114 of the Indian Penal Code.

(c) Grant such other and further relief(s) as deemed just and

proper in the interest of justice."

2. Rule. Learned APP waives service of notice of

rule for respondent no.1 and learned advocate

Mr.Nangesh waives service of notice of rule for

respondent no.2.

3. The facts stated in the application are such

that the complainant gave information that on 8.5.2018

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when he was at marriage function, the applicant no.1

came with lathi in his hand along with the other

applicants and told him that in past the complainant

lodged the complaint against them bearing C.R.No.I-73 of

2017 and why he has not settled the matter with them

and thereafter applicant no.1 tried to blow the lathi on

him but he escaped and other two accused used abusive

words and scolded him and thereafter, the other persons

intervened, however, the applicants told him that if he

will not settle the matter with them, they will kill him

like his daughter and they left the place and therefore

the complainant filed the impugned complaint on

10.5.2018.

4. Heard learned advocate Mr.Padhiyar for the

applicants, learned APP Mr.Jayswal for respondent no.1

and learned advocate Mr.Nangesh for respondent no.2.

5. Learned advocate Mr.Patel for the applicants

has drawn my attention to the tenor of the FIR and

contended that the provisions of Sections 294(b), 506(2)

and 114 of Indian Penal Code are not attracted in the

facts and circumstances of the present case. He has

R/CR.MA/11093/2018 JUDGMENT DATED: 09/06/2023

further submitted that the complainant had filed a

complaint against the present applicants and one another

being C.R.No.I-73 of 2017 registered before Dhanera

Police Station under Sections 498(A), 306 and 114 of

Indian Penal Code, wherein the applicants were released

on anticipatory bail and the cancellation of bail

application was also rejected. He submitted that because

of this, the complainant was not happy with the same

and therefore, with a view to harass the applicants, the

impugned FIR is filed. He has further drawn my

attention towards the provisions of Sections 294(b) and

506(2) of the Indian Penal Code and submitted that on

bare reading of the impugned FIR, the ingredients of the

said sections are not made out. He, therefore, submitted that in view of the judgment of the Hon'ble Apex 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 Code for quashing of

the impugned FIR as it is nothing but to harass the

applicants and an abuse of the process of law.

6.                Per     contra,       learned            advocate           for        the

complainant-respondent                no.2     has         submitted         that        the






      R/CR.MA/11093/2018                                       JUDGMENT DATED: 09/06/2023

ingredients of the offences which are invoked in the FIR

are satisfied while going through the contents of the FIR

and therefore this Court should not exercise the

discretion under Section 482 of the Code which should

be exercised sparingly and in proper case only and

therefore prays to dismiss this application.

7. Learned APP Mr.Jayswal appearing for the

respondent-state submitted that from the tenor of the

FIR, prima facie offences are made out against the

present applicants and since there is previous enmity

between the parties, it cannot be said that such incident

could not have been occurred. Considering the nature of

the allegations levelled in the FIR, prima facie, the offences under Sections 294(b), 506(2) are made out, and

therefore the present application deserves to be

dismissed.

8. I have considered the rival submissions and I

have also considered the material placed on record and

the impugned FIR.

9. The provisions of Sections 294(b) and 506(2) of

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the Indian Penal Code are as under:

"294. Obscene acts and songs.--Whoever, to the annoyance of others,

(a) xxx

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

"506. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. - And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Para I Punishment - Imprisonment for 2 years, or fine, or both - Non-cognizable - Bailable - Triable by any Magistrate - Compoundable by the person intimidated.

Para II - Punishment - Imprisonment for 7 years, or fine,

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or both - Non-cognizable Bailable - Triable by Magistrate of the first class - Compoundable by the person intimidated."

10. On bare reading of the FIR, it transpires that

the FIR is lodged under Sections 294(b) and 506(2) read

with Section 114 of Indian Penal Code and from the

bare reading of the FIR, general allegations are made

which does not constitute any offence under the said

sections. Further, looking to the allegations made in the

FIR, the fact cannot be overlooked that the impugned

FIR may have been filed looking to the previous enmity

between the parties and it is nothing but an abuse of

process of law.

11. Further, it will also be fruitful to mention the judgment of Hon'ble Supreme Court in the case of State

of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power

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under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out

R/CR.MA/11093/2018 JUDGMENT DATED: 09/06/2023

a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

R/CR.MA/11093/2018 JUDGMENT DATED: 09/06/2023

12. It is also relevant to refer to the judgment of

the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23

& 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when

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such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

13. In view of above settled position of law and

after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

FIR will cause greater hardships to the applicants and

no fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

ensure that criminal prosecution is not used as

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle

the score.

14. Resultantly, this application is allowed. The