Gujarat High Court

Chandubhai Punabhai Bhuriya vs State Of Gujarat on 20 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/18173/2017                                      ORDER DATED: 20/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 18173 of 2017

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                 CHANDUBHAI PUNABHAI BHURIYA & 3 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
DELETED for the Applicant(s) No. 1
MR UM SHASTRI(830) for the Applicant(s) No. 2,3,4
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS.YOGINI H UPADHYAY(6695) 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 : 20/06/2023

                                       ORAL ORDER

1. With the consent of learned advocates

appearing for the parties, present application is taken up for final disposal today.

2. Rule. Learned advocates waive service of notice

of Rule for respective respondents.

3. By way of the present application under

Section 482 of the Code of Criminal Procedure, 1973 (for

short, the 'Code'), the applicant/s prays for quashing the

FIR being C.R.No.I-31 of 2017 registered with Morva

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

(Hadaf) Police Station, Panchmahals for the offence

punishable under Sections 376, 506(2) and 114 of the

Indian Penal Code.

4. The brief facts leading to filing of this

application are such that the impugned complaint is filed

by the respondent no.2-complainant stating that on

6.6.2017, the applicant no.1 came to her house and

committed rape and the applicant nos.2 to 4 have given

threats to the complainant-respondent no.2. It is this

complaint which is sought to be quashed in this

application.

5. This application was withdrawn qua the applicant no.1 and therefore the application remains to

be considered for applicant nos.2 to 4 only.

6. Heard learned advocates for the parties.

7. Learned advocate Mr.Shastri for the applicants

submits that the FIR came to be filed on 28.6.2017 for

the alleged incident of 7.6.2017 i.e. after a delay of 21

days. He further submitted that there is some dispute

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

going on between the two families and therefore the

present applicants are falsely implicated in the impugned

FIR. He has further submitted that the complainant, at

the relevant point of time, has refused to undergo the

medical examination. He has further submitted that in

the order dated 22.9.2017 passed in Criminal

Miscellaneous Application No.22990 of 2017, while

granting anticipatory bail to the applicant no.1, qua

whom this application is withdrawn, has observed in

paragraph 3 that the complainant was present before the

police station at the relevant point of time of the alleged

incident and therefore this complaint is filed without any

basis, only with a view to harass the present applicants.

He has submitted that the only allegation against the present applicants is that they have threatened the

complainant. He, therefore, submitted that continuation of

the proceedings will amount to abuse of process of law,

more particularly, when there is no medical evidence

available against the present applicants which can

establish any case for the offences alleged in the

impugned FIR. He, therefore, submitted to allow this

application.

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

8. Per contra, learned APP Mr.Joshi for the

respondent no.1-state has strongly opposed the prayers

made in this application by submitting that considering

the gravity of offence under Section 376 of the Indian

Penal Code, the Court should not exercise discretion in

favour of the present applicants. He has submitted that

the investigation should be completed and chargesheet

should be filed and this Court should not exercise

discretion the applicants should face the trial. He,

therefore, prayed to dismiss this application.

9. None present for respondent no.2-complainant.

10. I have considered the rival submissions and also perused the material on record. The complaint is

filed after a delay of 21 days from the date of the

incident. It seems that essentially there is a dispute with

regard to the road going on in front of the house of the

complainant as well as the house of the present

applicant. The allegation of Section 376 of the Indian

Penal Code is made against the applicant no.1 for whom

this application is withdrawn. The applicant no.1

preferred anticipatory bail in the impugned FIR, wherein,

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

in the order dated 22.9.2017 passed in Criminal

Miscellaneous Application No.22990 of 2017, while

granting anticipatory bail to the applicant no.1, has

observed in paragraph 3 that the complainant was

present before the police station at the relevant point of

time pursuant to the alleged incident. The allegation

against the present applicants is that they have

threatened the complainant. When the occurring of the

incident is doubtful, there is no reason for the applicants

threatening the complainant for the said doubtful

incident. Hence, considering the totality of the facts and

circumstances of the present case, no fruitful purpose

will be served in continuing the proceedings.

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

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

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

R/CR.MA/18173/2017 ORDER DATED: 20/06/2023

of the same 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

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to spite him due to private and personal grudge."

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

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though wide have to be exercised sparingly, carefully and with great caution and only when 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 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.

14. Resultantly, this application is allowed. The