Anil Vijay Kaushik vs State Of Gujarat
2023 Latest Caselaw 6476 Guj

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   R/CR.MA/15685/2023                                        ORDER DATED: 05/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 15685 of 2023
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                              ANIL VIJAY KAUSHIK
                                     Versus
                              STATE OF GUJARAT
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Appearance:
MR VISHAL SINHA ADVOCATE for MR SHAILESH T DESAI(10670) for the
Applicant(s) No. 1
for the Respondent(s) No. 2
BHARGAV PANDYA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 05/09/2023
                                 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 petitioner has prayed to quash and set aside the complaint being FIR No.11191067210070 registered with Cyber Crime Police Station, District: Ahmedabad for the offences punishable u/s. 420, 465, 467, 468, 471, 472 and 120(B) of IPC and under sections 66(C) and 66(D) of Information Technology Act as well as Charge-sheet as C.C. No.98822/2021 and all other consequential proceedings.

2. The brief facts of the present case are that during January 2020 to March, 2021 unknown person giving his name Sanjay Mishra has given false introduction as supply chain head at L&T Ship Building, Faridabad and unknown person viz. Abhinav Tiwarin

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the person of Sanjay Mishra has made business conversation with the complainant in the name of L&T Ship Building, Faridabad and obtaining bills related to business of transport from the complainant and falsely stating that Broker Devidas Nagle of Gangotri Trailer Transport has put up the trailers, the said persons have together planning per-planned criminal conspiracy, obtaining assurance and trust of the complainant and falsely stating that Gangotri Trailer Transport Broker Devidas Nagle has put up trailers, receiving large sum of amount of Rs.12,85,84,700/- other than T.D.S. in the name of business from the complainant and paying an amount of Rs.6,00,30,700/- to gain the assurance and trust of complainant, not paying rest of the amount of Rs.6,98,25,505/-.

3. Learned advocate Mr. Vishal Sinha appearing with learned Advocate Mr.Shailesh Desai for the petitioner submitted present applicant has no any connection with the said offence and he is innocent and was wrongly dragged in this offence. Looking to the FIR, there is no name of present applicant as an accused and in course of police investigation, present respondent no.2 (i.e. original complainant) has dragged wrongly in present applicant herein and it is requested to stay warrant or arrest warrant, if any issued by the police concerned or learned Additional Chief Judicial Magistrate, City Court, Ahmedabad against the present applicant under section 70 of Cr.P.C. He submitted that as per the

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charge-sheet no any specific role attributed to the present applicant and present applicant has not taken any part in the said money transaction. He also submitted that original accused have made false confessional statement against this applicant without any supportive documents and thus, the present applicant is not involved in present transactions of money. It is further submitted that present applicant is unknown to the accused persons and not participated in the said offence. He therefore submitted that there is nothing to show that any incident had taken place due to which the complainant 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 applicant.

4. Mr.Sinha referred to and relied upon judgments of the Hon'ble Supreme Court: in Satender Kumar Antil vs. Central Bureau of Investigation, 2021 (10) SCC 773, Km. Hema Mishra Vs. State of U.P. and Ores, 2014 (4) SCC 453, Abhishek Vs. State of Madhya Pradesh, 2023 SCC.online SC 1083 as well as judgment of the Karnataka High Court in the case of Shri L. Sathish Kumar Vs. State of Karnataka delivered in Writ Petition No.6732 of 2023 and submitted that looking to the entire FIR and charge-sheet papers biased allegations levelled without scientific piece of evidence against the present applicant and so there is no any prima facie case is made out against the present

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applicant and he therefore prayed that charge-sheet and its proceedings qua for this present applicant are liable to be quashed and set aside.

5. Having heard learned advocate for the petitioner, 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 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.

6. 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

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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.

7. It appears from the allegations made in the impugned FIR that during January 2020 to March, 2021 unknown person giving his name Sanjay Mishra has given false introduction as supply chain head at L&T Ship Building, Faridabad and unknown person viz. Abhinav Tiwarin the person of Sanjay Mishra has made business conversation with the complainant in the name of L&T Ship Building, Faridabad and obtaining bills related to business of transport from the complainant and falsely stating that Broker Devidas Nagle of Gangotri Trailer Transport has put up the trailers, the said persons have together planning per-planned criminal conspiracy, obtaining assurance and trust of the complainant and falsely stating that Gangotri Trailer Transport Broker Devidas Nagle has put up trailers, receiving large sum of amount of Rs.12,85,84,700/- other than T.D.S. in the name of business from the complainant and paying an amount of Rs.6,00,30,700/- to gain the assurance and trust of complainant, not paying rest of the amount of Rs.6,98,25,505/-. It also appears from column no.2 of the charge-sheet, which is filed for other accused person, wherein the applicant is shown as absconder. Thus, it is not a matter of dispute that the investigation is till going on and it is at present at a crucial

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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 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.

8. 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 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

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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;

(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."

9. At this stage, in a recent decision of the Hon'ble

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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 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;

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

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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 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

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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 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.

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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 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."

10. Considering the allegations made in the impugned

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FIR, prima facie, the involvement of the petitioner in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment 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 petitioner.

11. For the foregoing reasons, the petition is dismissed in limine. No order as to costs.

(SAMIR J. DAVE,J) MEHUL B. TUVAR