Farukmiya Mehboobmiya Qazi vs State Of Gujarat
2023 Latest Caselaw 3971 Guj

     R/CR.MA/1367/2014                               JUDGMENT DATED: 05/05/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 1367 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI                    Sd/-
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1      Whether Reporters of Local Papers may be allowed to              YES
       see the judgment ?

2      To be referred to the Reporter or not ?                          YES

3      Whether their Lordships wish to see the fair copy of the          NO
       judgment ?

4      Whether this case involves a substantial question of law          NO
       as to the interpretation of the Constitution of India or
       any order made thereunder ?

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                  FARUKMIYA MEHBOOBMIYA QAZI & 1 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
==================================================
Appearance:
MR MA KHARADI(1032) for the Applicant(s) No. 1,2
MR. H.K.PATEL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==================================================
    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
                     Date : 05/05/2023
                     ORAL JUDGMENT

1. By way of this application filed under Section 482 of the

Code of Criminal Procedure, 1973, the present applicants seek

following reliefs:-

               "A.       Admit this application.
               B.        Allow this application by quashing the FIR

lodged against the applicant being C.R.No.I-4 of 2014

R/CR.MA/1367/2014 JUDGMENT DATED: 05/05/2023

with Himmatnagar (Rural) Police Station. C. Grant interim relief by staying further process pursuant to the FIR being C.R.No. I-4 of 2014 lodged with Himmatnagar (Rural) Police Station, pending admission and till final disposal of this application. D. Grant such other and further relief/s as may deem fit to the Hon'ble Court in the interest of justice.

2. One Mr. J.P.Modi, R.T.O. Inspector at Himmatnagar

lodged an FIR with Himmatnagar Rural Police Station against

the present applicants for the offences punishable under

Sections 332, 323, 504, 506(2), 186 and 114 of the Indian Penal

Code, with the contention that on 10.01.2014 at around 04:30

pm, the complainant along with other officers of the R.T.O.

office Himmatnagar on their duty and they were working in the

R.T.O. office, at that time, the accused came to the complainant

and directed to sign on HGV papers, so, at that time, the

complainant informed both the accused to provide incomplete

detail of Form No. 22, and thereafter, the complainant informed

both accused that till the form is completed, they will not sign

HGV papers. Having heard so, the accused started ruckus and

altercation with the complainant and spoken filth and abuse

word and also pass the threat to life of complainant.

R/CR.MA/1367/2014 JUDGMENT DATED: 05/05/2023

3. In the aforesaid context, at the hand of J.P.Modi, the FIR

being C.R.No.I-4 of 2014 came to be registered with

Himmatnagar (Rural) Police Station.

4. Claiming the above FIR as an abuse of process of law,

inter alia, on the ground mentioned in the application, the

applicant seeks for quashment of FIR.

5. Heard learned advocate U.M.Kharadi, appearing on behalf of

the applicants and Mr. H.K.Patel, learned Additional Public

Prosecutor appearing on behalf of the respondent-State. Though

served to respondent No.2, no one appears on behalf of the

respondent no. 2 either in person or through an advocate.

6. Mr. U.M.Kharadi, learned advocate would argue that the

FIR filed by the original complainant is a counterblast to the

complaint filed by the present applicants before the ACB police

station against some of the officers of the R.T.O. as well as

since the present applicants are repeatedly asking the

information under RTI Act from the R.T.O. office, taking grudge

of the same, the present false and frivolous FIR has been filed

by the R.T.O. Officer. He would further submit that since the

present applicants have bring the corrupt practice of the R.T.O.

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officer to the light, being aggrieved by such, the R.T.O. officer

has filed the false complaint. The applicants have never

indulging passed threat to the complainant. They have not

spoken abuse and filthy words but the applicants are falsely

involved in the offence by filling false and frivolous FIR.

7. Mr. Kharadi, would further submit that in view of the

judgment of Hon'ble Supreme Court in the case of State of

Haryana vs Bhajan Lal, reported in 1992 Supp (1) SCC 335,

where a criminal proceeding is manifestly filed with mala-fide

and/or where the proceeding is maliciously instituted with an

ulterior motive for wreaking the vengeance on the accused and

with a view to spite him due to private and personal grudge

such proceedings can be quashed under Section 482 of the

Code and would further submit that the present FIR is one such,

which is filed with an ulterior motive for wreaking the

vengeance against the applicant with a view to take the private

and personal grudge as applicants are indulging in filing the

complaint against the R.T.O. officers either before the ACB or

under the RTI Act.

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8. Upon such submission, learned advocate U.M.Kharadi

would submit to allow this application and to quash and set

aside the FIR.

9. Per contra, learned Additional Public Prosecutor would

submit that the present applicants are habitual. He would

further submit that in order to bring work in their favour, they

are passing threats upon the officers of the R.T.O. either by

way of filing the complaint under the provisions of Prevention of

Corruption Act or by way of taking recourse under RTI and

many a time, they come in the office and take law in their hand.

These applicants use filthy and abusive word as well as passing

threats of life to R.T.O. officers to get their work done. The

present FIR arise because one incident was took place in the

office of R.T.O. He would further submit that whatever

arguments canvassed by learned advocate Mr. Kharadi can be

testified during trial of FIR but on face of FIR, it cannot be said

that filing of FIR is abuse of process of law or there is no

cognizable offence has been disclosed. He would further submit

that police machinery should be allowed to investigate the

offence and once the investigation is completed, the truth will

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be surfaced. Upon such submission, learned Additional Public

Prosecutor submits that this is not fit case to exercise

extraordinary power vested under Section 482 of the Code and

hence he submits to dismiss the petition.

10. Regard being head to the rival submissions of learned

advocates appearing for both the sides, at the outset, I may

refer to the recent judgment of the Hon'ble Supreme Court in

the case of M/s Neeharika Infrastructure Pvt. Ltd. V. State

of Maharashtra and others, reported in 2021(19) SCC 401,

whereupon the Hon'ble Supreme Court, after taking into

consideration earlier decision on exercising the power under

Section 482 of the Code including the well-celiberated decision

of Bhajanlal (Supra), in para 37 and 80 has observed as under;

"37. Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

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"102. (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 section 156(1) of the Code except under an order of a Magistrate within the purview of section 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 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 section 155(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the

R/CR.MA/1367/2014 JUDGMENT DATED: 05/05/2023

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."

In the above decision, the Apex Court came to the conclusion that, "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/ charge-sheet 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;

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 encyclopedia which must disclose all facts and details relating to the

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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;

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

R/CR.MA/1367/2014 JUDGMENT DATED: 05/05/2023

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/charge-sheet is filed under 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

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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."

11. In the present case, the complainant is Government

Officer and he has made a categorical allegation that he along

with other officers of the R.T.O. office at Himmatnagar were on

their duty and had been deterred by the accused for performing

specific illegal work and along with such the applicant-accused

has also spoken filthy and abuse word. Though the present

applicant accused controverted such allegations saying that

complainant has misused his power but the same is the subject

of the trial. In fact, at this juncture there is no reason to

disbelieve the content of FIR as untrue. Complainant has no

reason to file false or absurd complaint against the accused.

Learned advocate Mr. Kharadi failed to point out any

circumstances which even prima-facie indicate that complaint is

R/CR.MA/1367/2014 JUDGMENT DATED: 05/05/2023

absurd or ill-motive.

12. Reading the FIR on its face, it does not disclose that it is so

absurd for inherently, improbable on the basis of which, no

prudent person can ever reach at just conclusion that there is

sufficient ground for proceedings against the accused. It is

important that the FIR is registered by the Government Officer

and alleging that the applicant accused are deterring them from

performing the public duty, thus, it cannot be presumed that

Government Officer keeping grudge with any private person

files false and frivolous or malicious complaint. It is to be noted

that in Chapter XIV of the Cr.P.C, the police has the statutory

right and even duty under relevant provision to investigate in

the cognizable offence.

13. Eventually, the applicant failed to make out any case

which display that they are falsely involved and allowing the

investigation further would be absurd procedure.

14. At the cost of repetition, it should be observed that power

of quashing should be exercised, sparingly and with all due

circumspection. The petitioners are failed to make out any such

case where this Court should exercise its extraordinary power

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to quash and set aside the FIR.

15. Upshot to the above, the present application sans merit

and accordingly it is rejected. Interim relief, if any, stands

vacated. Rule is discharged.

Sd/-

(J. C. DOSHI,J) VISHAL MISHRA