Vishaldip Jagjivandas Ravibhan vs State Of Gujarat
2023 Latest Caselaw 2236 Guj

    R/CR.MA/4497/2023                                             ORDER DATED: 14/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 4497 of 2023

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                        VISHALDIP JAGJIVANDAS RAVIBHAN
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR YASH K DAVE(10269) for the Applicant(s) No. 1,2,3,4
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                    Date : 14/03/2023
                                     ORAL ORDER

1. 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 petitioners have

prayed to quash and set aside the complaint

being FIR No.11187007230127 registered with

Santrampur Police Station, District:Mahisagar

for the offences punishable u/s. 504, 506(1),

120-B, 141, 142, 143, 166 of IPC and under

sections 3(1)(r), 3(1)(s), 3(2)(va) of

Atrocities Act and all other consequential

proceedings.

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

2. Learned advocate Mr. Vishal Anandjiwala

appearing for the petitioners submitted that

uncle of the First informant viz. Ramabhai

Motibhai Harijan had wrongly encroached the

land belonging to the Forest Department and

therefore, the FIR came to be filed against

Ramabhai Motibhai Harijan on 29.12.2022 and on

that very day illegal construction was

demolished. Thereafter, Range Forest Officer

submitted entire report to Deputy Forest

Officer, Mahisagar and the debris and other

material were deposited in the Government

Forest Office. Thereafter, the first informant

who happens to be the nephew of Ramabhai

Motibhai Harijan given complaint and the

illegal structure erected came to be demolished

which belonged to the uncle of the first

informant. Thus, the first informant played

fraud with the Court as well as with the

Investigating Team. The police had carried out

inquiry and investigation and submitted that no

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

offence had come to be committed by the

petitioners accused and even videography of the

entire site was done and that videography of

the land and the entire process carried out by

the Forest Officer is also part of the inquiry

report filed by the Police. He also submitted

that with ulterior motive present FIR has been

registered against the petitioners accused only

with an intention to take revenge as illegal/

erection done by the uncle of the first

informant was demolished. He also submitted

that said complaint has also been given after

delay of 7 days that too by giving false

information and facts. He therefore submitted

that there is nothing to show that any incident

had taken place due to which the first

informant out of fear could not get the FIR

registered and therefore also, this is a fit

case where discretion deserves to be exercised

in favour of the applicants.

3. Learned APP Mr. Hardik Mehta for the

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

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.

4. Having heard learned advocate for the

petitioners 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 and

gravity of the offence. Heinous and serious

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

offences, such offence of rape or dacoity or

murder or the offence leading to serious

injuries etc. may not be considered for the

purpose of exercise of inherent powers.

5. 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 the

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.

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

6. It appears from the allegations made in the

impugned FIR that mother of first informant had

possession of some portion of forest land at

Ora Village and they were cultivating the said

land since last 50 years. The State Government

has allotted 8 acres of land for agriculture

purpose and the first informant has constructed

small open hut on it. It also appears that on

29.12.2022 the accused persons came to the said

land and asked him to remove shed/ small open

hut as it belonged to the Forest Department.

From the police report, it appears that it was

alleged that without issuing any notice to the

first informant, his hut was demolished by the

petitioners. Thus, it can hardly be said to be

between the private parties. 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

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

investigation. The Investigation Officer has

also not submitted his final report, therefore,

any of his comment on the same would be in the

opinion of this Court is at a premature stage.

7. In a series of decisions, the Apex Court has

explained the contours of the power under

Section 482 Cr.P.C. In State of Haryana V.

Bhajan Lal and others, AIR 1992 SC 604, in the

backdrop of interpretation of various relevant

provisions of the Code of Criminal Procedure

and of the principles of law relating to the

exercise of extraordinary power under Article

226 or the inherent powers under Section 482

Cr.P.C., the Apex Court gave the following

categories of cases, by way of illustrations,

wherein such power could be exercised, either

to prevent abuse of the process of the Court or

otherwise to secure the ends of justice, making

it clear that it may not be possible to

sufficiently lay down channelised any and

precise, inflexible clearly-defined guidelines

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or and rigid formulae and to give an exhaustive

list of myriad kinds of cases, wherein such

power should be exercised:

(a) 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;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) FIR the and where the uncontroverted allegations made in the or complaint and the evidence collected in support of same do not disclose the commission of any offence make out a case against the accused;

(d) 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 Section 155(2) of the Code;

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(e) 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;

(f) 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;

(g) 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."

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

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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;

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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;

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;

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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 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;

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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 the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under

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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 petitioners in the alleged offence could

not be ruled out. Thus, in view of the

principle laid down in the aforesaid judgment

R/CR.MA/4497/2023 ORDER DATED: 14/03/2023

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