Gujarat High Court

Mahendrabhai Vinubhai Parmar vs State Of Gujarat on 9 October, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/10363/2019                                  ORDER DATED: 09/10/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 10363 of 2019

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                           MAHENDRABHAI VINUBHAI PARMAR
                                      Versus
                                STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 09/10/2023

                                   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:

"5(i) that Your Lordships be pleased to pass appropriate order and be pleased to quash and set aside the FIR qua the petitioner, being C.R.No.I-11/2019 registered at DCB Police Station, Ahmedabad for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 120B of IPC and under Section 12(1)(a) and 12(1)(b) of the Indian Passport Act.

(ii) that Your Lordships be pleased to stay the further proceedings in the nature of investigation in connection with

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the FIR qua the petitioner, being C.R.No.I-11/2019 registered at DCB Police Station, during pendency of this petition;

(iii) that any just and proper order may be passed.

2. The brief facts giving rise to this application, as

stated in the application, are such that the accused no.1

appeared before the Consular Officer at U.S.Consulate

General, Mumbai for B-1/B-2 tourist visa and he provided his

passport for identity, which contained visa for Nicaragua and

Honduras to support his visa application; that throughout the

interview, the said accused no.1 was unable to answer the

specific concerning historic for Nicaragua and Honduras visa

or his travel plans which prompted the Consular Officer to

refer the case for further review; that the said accused no.1

confessed in the interview that that said Nicaragua and

Honduras visa stamp in his passport are fraudulent and that

the said visas were provided by the present applicant.

Therefore, the first informant filed the impugned FIR under

Sections 406, 420, 465, 467, 468, 471, 120B of IPC and

under Section 12(1)(a) and 12(1)(b) of the Indian Passport

Act, which is prayed to be quashed by way of filing this

application.

3. Heard learned advocate for the applicant and

learned APP for respondent-authorities.

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4. Learned advocate Mr.Anandjiwala for the applicant

submitted that the first informant found the said aspect on

3.1.2017, however, the FIR is lodged on 6.3.2019 i.e. after a

delay of almost about two years; that the said FIR is filed

only on the confessional statement of the accused no.1 and

that the visas od Nicaragua and Honduras were absolutely

genuine one and after considering all the documentary

evidence produced before the authorities. Referring to the

documents produced along with the application, learned

advocate Mr.Anandjiwala submitted that the visas are

absolutely genuine and that the respective countries have

given the visas for a period of one month, that too relying

on the documentary evidence produced before the authorities.

He, therefore, submitted that the ingredients of the sections

invoked are not satisfied as no offence is committed and

therefore this application be allowed.

5. Per contra, learned APP, referring to the report submitted by the concerned investigating officer, submitted

that the report suggests that the visas of Nicaragua and

Honduras granted to the applicant are found to be genuine

and, he therefore, prayed to pass appropriate order

considering the documents on record and the report of the

investigating officer.

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6. I have heard the learned advocates for the parties

and also perused the material on record. It transpires that

the impugned FIR is filed on the confessional statement of

the accused no.1 that the visas on his passport are

fraudulent and that they were provided by the present

applicant. However, there is nothing on the record to show

that the said visas are fake and fraudulent. On the contrary,

from the material on record and the report of the

investigating officer, which is produced by learned APP, it

transpires that the said visas are genuine. When the visas

are found genuine during the course of investigation, the

ingredients of the sections invoked in the impugned FIR

cannot be said to be satisfied.

7. In view of the above, any further continuance of

the proceedings pursuant to the impugned FIR filed after

delay of about two years against the present applicant would

amount to abuse of process of Court and law and therefore

in order to secure the ends of justice, this Court is required

to exercise its inherent power u/s. 482 of the Code,

considering the judgment of the Hon'ble Apex Court in case

of State of Haryana V/s Bhajanlal & Ors. Reported in AIR

1992 SC 604, wherein it is observed and held as under:

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"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 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.

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(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

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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. Resultantly, this application is allowed. The

impugned FIR being C.R.No.I-11/2019 registered at DCB

Police Station, Ahmedabad and consequential proceedings, if

any, are quashed and set aside qua the present applicant.