Gujarat High Court

Rajesh Tapubhai Joshi (Rajubhai @ ... vs State Of Gujarat on 26 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/8575/2018                         ORDER DATED: 26/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 8575 of 2018

==========================================================
        RAJESH TAPUBHAI JOSHI (RAJUBHAI @ GURU) & 3 other(s)
                              Versus
                  STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MS DIVYA PANCHAL FOR MR SM CHUDASAMA(3712) for the Applicant(s)
No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 26/06/2023

                             ORAL ORDER

1. This petition is filed praying for quashing and

setting aside the criminal complaint being C.R.No.II-18 of

2018 registered with Gandhigram 2 (University) police

station, Rajkot for the offences punishable under Sections

506(2) and 114 of the Indian Penal Code (`IPC' for

short).

2. Heard learned advocate Ms.Divya Panchal for

the applicants, learned APP Mr.Jayswal for respondent

no.1. Though served, none appears for respondent no.2.

3. Learned advocate for the applicants has drawn

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

my attention towards the tenor of the FIR which is filed

under the provisions of Sections 506(2) and 114 of the

Indian Penal Code and submitted that there is dispute

between the office bearers/trustees of two different trusts

of the same community going on and due to this, the

present complaint is filed which is totally baseless and

with a view to implicate all the persons who are named

in the complaint including one person who is practising

advocate. He submits that on bare reading of the

complaint, the ingredients of Section 506(2) cannot be

attracted. Moreover, the entire story which is created in

the complaint is also apparently not digestible and

therefore she has submitted that in view of the judgment

in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Apex Court has considered such aspect like present complaint, the

impugned complaint is required to be quashed with a

view to prevent abuse of process of law.

4. Per contra, learned APP Mr.Jayswal has

submitted that on bare reading on the complaint, offence

is made out. He has also submitted that there are

sufficient allegations made in the complaint which

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

constitute the offence. However, he has fairly submitted

that after considering the complaint in totality, no

satisfactory material is available to implicate the present

applicant in the offence. However, he has submitted that

appropriate order may be passed by this Court after

considering the submissions made at the bar and the

material produced on record.

5. I have considered the rival submissions and

also perused the material on record.

6. At the outset, Sections 506(2) and 114 of the

IPC read as under:

"S. 506. 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; 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.

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

114. Abettor present when offence is committed.--Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

7. Now, on perusing the contents of the FIR, no

ingredients of Section 506(2) can be attracted as the

story itself is unbelievable and not digestible. Moreover,

the complainant himself has averred that there is

dispute going on between the members of two trusts and

therefore there are all chances that the complaint is filed

with a view to implicate the present applicants. In view of the factual background, no offence can be said to be

prima facie made out under Section 506(2) of the IPC.

8. 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

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

the principles of law enunciated by this court in a series of 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.

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

(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 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

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

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."

9. 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.]

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023

24. Inherent powers under Sec. 482 CrPC 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."

10. 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.

R/CR.MA/8575/2018 ORDER DATED: 26/06/2023