Gujarat High Court

Zakirhussain Mahemudmiya ... vs State Of Gujarat on 13 October, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/17389/2016                         ORDER DATED: 13/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 17389 of 2016

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            ZAKIRHUSSAIN MAHEMUDMIYA SAIOYED & 2 other(s)
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1,2,3
MR VISHRUT BHANDARI(11297) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 13/10/2023

                             ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicants seek

quashment of the impugned FIR being CR-II No.3172 of 2016 registered with the Anand Town Police Station, District :

Anand for the offences punishable under Sections 323, 504,

506(2) and 114 of the Indian Penal Code and Section 135 of

the Gujarat Police Act.

2. The brief facts of the prosecution case are that

due to rainy season, the complainant has put a plastic roof

over his shop so that rain water does not affect his shop

and therefore, the applicants approached the complainant and

asked him as to why he has put up a plastic roof. During

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their conversions, the applicants used abusive language and

the applicant No.1 got provoked and beaten the complainant

by a wooden stick, whereas applicants No.2 and 3 came at

the place of incident and they have also used abusive

language and threatened the complainant and thereby

committed an offence as alleged in the impugned FIR.

3. Heard learned advocates.

4. Rule. Learned APP and learned advocate

Mr.Bhandari waive service of notice of rule for and on behalf

of the respective respondents.

5. Learned advocate Mr. Vaibhav Sheth for the

applicants has submitted that there was a quarrel between

the applicants and the complainant. There are cross

complaints. The applicants have lodged an FIR being CR-II

No.3170 of 2016 before the same police station for the very

incident for the same offence, where the brothers of the

complainant are the accused. He has submitted that the

impugned complaint is therefore lodged after six days for the

same incident for the same offence before the very police

station by the complainant, which is a counter-blast of the

earlier complaint. He has submitted that in the complaint

filed by the present applicant/s, trial is also completed and

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the brothers of the complainant gets acquittal. He has

submitted that the trial against the applicant would be futile

in view of the acquittal recorded by the learned trial Court

in cross complaint. He has submitted that the alleged

incident has happened on 06.07.2016 and the impugned

complaint is lodged on 12.07.2016 and there is no

explanation/reasons for delayed complaint given by the

complainant and/or recorded in the FIR. He has submitted

that this is an after-thought by the complainant. He has

submitted that this is nothing but an abuse of process of law

by the complainant. He has submitted that no prima facie

case is made out against the applicants. He has relied upon

the decision of the Hon'ble Apex Court in the case of State

of Haryana versus Bhajan Lal reported in AIR 1992 SC 604

in support of his case. He has submitted that this application

may be allowed.

6. Per contra, learned advocate Mr.Bhandari for the complainant has strongly opposed this application. He has

submitted that there is a prima facie case against the

applicants. He has submitted that the applicants are facing

the proceedings of similar nature. He has submitted that

they are strong-headed persons in the society. He has

submitted that the applicants have beaten and threatened the

complainant and therefore, let the trial may be faced by the

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applicants. He has submitted that this application may be

dismissed.

7. Learned APP Ms.Bhatt for the State has

submitted that there are antecedents against the applicant/s.

She has submitted that there is a prima facie case made out

against the applicants and therefore, this Court may not

entertained this application. She has submitted that this

Court should exercise its powers very sparingly as held by

the Hon'ble Apex Court in catena of decisions where there is

prima facie case made out against the applicant/accused. She

has submitted that let the applicant may be faced the trial.

She has submitted that this application may be dismissed.

8. I have heard rival submissions made by the

learned advocates for the respective parties. I have perused

the documents available on record. I have considered the

facts and circumstances of the case. From record, it

transpires that, there are cross-complaints. The applicants

have lodged an FIR on 06.07.2016 i.e. on the day of incident.

The second FIR is lodged on 12.07.2016 by the complainant

of the impugned complaint i.e. after a delay of six days.

There is no justification for the delayed complaint filed by

the present complainant. The brothers of the present

complainant are the accused in the earlier FIR filed by the

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applicants. They got acquittal by the learned trial Court.

Both the complaints are for the same offence of the Indian

Penal Code and for the very incident. Both are neighbours

having adjoining shops. It further transpires from the

demeanor of the present complainant that the impugned

complaint is nothing but a counter-blast of earlier complaint

filed by the present applicant/s against the brothers of the

present complainant. Looking to the entire facts and

circumstances of the case, this Court is of the opinion that

prima facie ingredients of the offences are not satisfied and

otherwise also, the impugned complaint is an off-shoot of the

earlier complaint filed by the present applicant/s against the

brothers of the present complainant, which is for settling the

score with the applicants and with a view to pressurise the

applicants.

9.1 Further, it would be fruitful to refer to 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 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

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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.

(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

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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 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."

9.2 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

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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.]

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






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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 facts and circumstances of the

case as well as the decision of the Hon'ble Apex Court, this

is a fit case to quash the impugned complaint by this Court.

This Court is of the opinion that this is an abuse of process

of law by the complainant. The impugned complaint therefore

needs to be quashed.

11. For the reasons recorded above, the following order

is passed.

11.1 The present application is allowed.

11.2 The impugned FIR being CR-II No.3172 of 2016

registered with the Anand Town Police Station, District :

Anand is hereby quashed and set aside, qua the applicants