Gujarat High Court

Seema Dhawalbhai Trivedi vs State Of Gujarat on 9 June, 2023

Bench: Sandeep N. Bhatt

      R/CR.MA/9188/2018                                          ORDER DATED: 09/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 9188 of 2018

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                    SEEMA DHAWALBHAI TRIVEDI & 1 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
JAGAT V PATEL(7480) for the Applicant(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
RICHA SHAH(7541) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 09/06/2023

                                     ORAL ORDER

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:

"8(a) This Hon'ble Court be pleased to admit this application.

(b) This Hon'ble Court be pleased to quash and set aside

the F.I.R. filed before Meghaninagar Police Station,

Ahmedabad vide II C.r.No.3044 of 2018 along with all the

prior and subsequent proceedings thereto qua present

Applicant.

(c) Pending the admission and final hearing of this petition,

this Hon'ble Court be pleased to stay the further

investigation the F.I.R. filed before Meghaninagar Police

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Station, Ahmedabad vide II C.r.No. II-3044 of 2018, qua

present applicant.

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

proper in the interest of justice."

2. The facts stated in the application are such

that the applicants are the relatives of the respondent

no.2-complainant and both are residing in the same

house and due to the dispute regarding the said house

between the family members, the respondent no.2 has

filed various complaints to harass the applicants and

grab the house from them and the impugned FIR is also

a creation of the same.

3. Heard learned advocate Mr.Jagat Patel for the applicants, learned APP Mr.Jayswal for respondent no.1

and learned advocate Ms.Richa Shah for respondent no.2.

4. 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

further submitted that in fact, there is previous dispute

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going on regarding the separation of property tax.

Therefore, with a view to harass the present applicants,

the complainant has lodged this complaint. 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 the bare reading of this section, the

incident should occur in a public place whereas

admittedly, the present incident has occurred in a house

which is private property and therefore, the provisions

which are invoked in the present FIR are not applicable.

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.

5. Per contra, learned advocate for the

complainant-respondent no.2 has submitted that the

complainant is old aged lady and the present applicants

who are the near relatives are harassing her due to

some previous enmity and therefore she has no option

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but to file complaint. She has further submitted that the

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.

6. 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.

7. I have considered the rival submissions and I

have also considered the material placed on record and

the impugned FIR.

R/CR.MA/9188/2018 ORDER DATED: 09/06/2023

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

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.

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Para II - Punishment - Imprisonment for 7 years, or fine, or both - Non-cognizable Bailable - Triable by Magistrate of the first class - Compoundable by the person intimidated."

9. 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. The entire

incident has occurred in the private residential house,

whereas, under the law, more particularly, as per the

provision of Section 294(b) of Indian Penal Code, the

incident should have occurred in the public place. As far

as Section 506(2) of the Indian Penal Code is concerned,

general allegations are made in the FIR and, therefore,

no case is made out.

10. 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

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decisions relating to the exercise of the extraordinary power 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

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do not disclose the commission of any offence and make out 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."

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11. 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."

12. 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 petitioners 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.

13. Resultantly, this application is allowed at the