Mamtaben W/O Girdhari Khataumal ... vs State Of Gujarat
2023 Latest Caselaw 7196 Guj

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      R/CR.MA/19068/2021                                  ORDER DATED: 03/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 19068 of 2021

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              MAMTABEN W/O GIRDHARI KHATAUMAL CHANDAK
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. BHAVIK P SHAH(6391) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 03/10/2023

                                   ORAL ORDER

1. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`the Code' for short) for

the following prayers:

"8(A) Your Lordships may kindly be pleased to quash and set aside the complaint at Annexure:A registered with Vaso Police Station, vide Crime Register No.11204065200034 of 2020 Under section 392, 427, 447, 504 and 114 of I.P.Code along with the charges sheet and further proceedings pending before the Learned J.M.F.C. Court Nadiad, and also quash and set aside the charge sheet No.17 of 2020;

(B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the further

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proceedings of the complaint registered with Vaso Police Station, vide Crime Register No.11204065200034 of 2020 Under section 392, 427, 447, 504 and 114 of I.P.Code along with the charges sheet and further proceedings pending before the Learned J.M.F.C. Court Nadiad, and also quash and set aside the charge sheet No.17 of 2020;

(C) xxxxx"

2. The brief facts leading to filing of this application

are such that an FIR came to be filed by the first informant

Shyamsunder S/o Bansilal Mohanlal Shah stating that he is

doing the business of scrap and he has one person namely

Rakeshbhai in his factory as a helper and that he runs his

shop from 10.00 a.m. to 6.00 p.m. It is further stated that

on the day nearly at 15.00 hours, when he was resting

himself, the present applicant, along with her two sons, tried

to quarrel with the complainant in animosity of past incident

and tried to hit him with the rod which was there in her

hand. It is further stated that he ran away to save himself

and his helper also ran away. On his returning after some

time, the complainant came to know that they have robbed

the money which the complainant put in the drawer of the

table. Therefore, the impugned FIR is filed, which is prayed

to be quashed by the present applicant.

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3. Heard learned advocate Mr.Shah for the applicant

and learned APP Mr.Jayswal for respondent no.1-state.

4. Learned advocate Mr.Shah for the applicant

submitted that there are three statements given by the

complainant-Shyamsunder S/o Bansilal Mohanlal Shah

whereby there are several contradictions found. He has

further submitted that merely the presence of the applicant

which is found from the CCTV footage or some alleged

recovery of the weapon of the so called offence does not

prima facie implicate the applicant in the offence. He has

further submitted that the ingredients of Sections 392, 427

and 114 of Indian Penal Code are not prima facie satisfied

and he has further submitted that except Section 392 of the

IPC, all other sections are triable by the learned J.M.F.C.

Court and maximum sentence prescribed is three years, if

such offence alleged in the FIR is proved during the course

of trial. He has further submitted that from the FSL report

also, there are several discrepancies found which does not

support the case of the prosecution and therefore he has

submitted that though the chargesheet is filed, no fruitful

purpose will be served to continue with the proceedings

against the present applicant, who, as per his submission is

falsely implicated as no evidence which connect the present

applicant with the commission of the offence is available on

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the record. He has further submitted that even from the

panchanama of CCTV, the present applicant is not found

with the wooden bat and therefore, the entire story is

concocted. He, therefore, prays that in view of the judgment

in the case of State of Haryana V/s Bhajan Lal reported in

AIR 1992 SC 604, he prays to allow this application.

5. Per contra, learned APP Mr.Jayswal for the

respondent no.1-state tendered a copy of the report received

from the concerned investigating officer, who is present in the

Court with necessary papers, which is taken on record.

Relying on the same, learned APP Mr.Jayswal submitted that

it is indicated in the report that the present applicant

Mamtaben is also found from the footage of CCTV and the

wooden bat which is used during the course of commission of

offence is also recovered from the said accused. He further

submitted that from the panchanama of CCTV footage as

well as panchanama of recovery of weapon, it clearly

transpires that the accused who is the present applicant

Mamtaben is identified by the complainant as well as other

persons. He, therefore, submitted that prima facie, the case is

made out against the present applicant. He, submitted that

this Court should exercise powers under Section 482 of the

Code very sparingly where the prima facie case offence is not

made out or the prosecution pursuant to such FIR will

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amount to abuse of process of law. In the present case, the

prima facie case is made out and there is sufficient material

to proceed with the trial against the present applicant

pursuant to the impugned FIR which is available on the

record and therefore, he submits that the present application

is required to be dismissed as no case is made out.

6. Sections 392, 427, 447, 504 and 114 of Indian

Penal Code read as under:

"392. Punishment for robbery:

Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

427. Mischief causing damage to the amount of fifty rupees:

Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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447. Punishment for criminal trespass:

Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine or which may extend to five hundred rupees, or with both.

504. Intentional insult with intent to provoke breach of the peace:

Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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. I have considered the rival submissions made at

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the bar and also perused the papers of investigation, more

particularly, recovery panchanama of weapon as well as

panchanama of CCTV footage. The same clearly mention that

at the time of incident, the present applicant Mamtaben is

found present at the place of incident, the weapon as well as

the vehicle which is produced by the present applicant is also

recovery by the investigating agency. Otherwise also, prima

facie, the ingredients of Sections 392, 427, 447, 504 and 114

of Indian Penal Code are satisfied.

8. At this stage, a reference to the case of

Neeharika Infrastructure Pvt.Ltd. V/s State of Maharashtra reported in 2021 SCC Online SC 315, will be fruitful,

wherein, it is held in paragraph 80 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 Cr.P.C and/or under Article 226 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 Cr.P.C., while

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dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 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 Code of 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;

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;

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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 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

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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 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 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

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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 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

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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 above decision and considering

that prima facie material which connects the present

applicant in the said offence is found which is required to be

tested at the time of full fledged trial, I am of the opinion

that this is not a fit case to exercise discretion under Section

482 of the Code. Accordingly, this application is dismissed.

(SANDEEP N. BHATT,J) SRILATHA