Gujarat High Court

Munirbhai Bahadur Khoja vs State Of Gujarat on 1 January, 2024

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     R/CR.MA/18721/2016                                      ORDER DATED: 01/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 18721 of 2016

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                           MUNIRBHAI BAHADUR KHOJA
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SIDDHANT S. PARIKH FOR MR. HARDIK H DAVE(6295) for the
Applicant(s) No. 1
MR NV GANDHI(1693) for the Respondent(s) No. 2
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 01/01/2024
                                   ORAL ORDER

1. Rule. The present application, under Section 482 of

the Criminal Procedure Code is filed by the applicant -

original accused seeking quashment of the impugned

F.I.R. being C.R. No.I-79 of 2016 registered with

Umagargao Police Station, District Valsad; for the

offences punishable under Sections 354, 504, 506(2) and

114 of the Indian Penal Code, 1860 (hereinafter referred

to as "I.P.C.).

2. Brief facts of the case as per the case of the

applicant in this applicant are as such that the

complainant is residing with her family members at the

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address mentioned in the cause title and approximately

at least four years before the filing of the present FIR,

the complainant and the applicant had entered into

development of one particular building viz. Mannat

Building. As per the agreement, Mannat Building was

constructed on the said premises and on 16.07.2016, the

present applicant and other three persons had come to

the house of the present complainant and tried to

outrage her modesty and threate her. It is furtehr the

case of the applicant in this application that she was

scared and therefore, she has lodged an FIR after a

delay of four days. Hence, the present application is

preferred.

3. Heard Mr. Siddhant S. Parikh, the learned counsel appearing for Mr. Hardik H. Dave, the learned counsel

for the applicant and Mr. N.V. Gandhi, the learned

counsel for the respondent No.2 and Mr. Manan Mehta,

the learned Additional Public Prosecutor (APP) for the

respondent No.1 - State.

4. Mr. Siddhant S. Parikh, the learned counsel for Mr.

Hardik H. Dave, the learned counsel for the applicant,

has asserted that prima facie, upon a bare reading of

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the impugned F.I.R., it becomes evident that it was

lodged much later and as a counterblast to the F.I.R.

already filed on 30.6.2014 by the present applicant

against respondent No.2 being F.I.R. C.R. No.I-66 of 2016

under Sections 406, 420, 506(2), and 114 of the I.P.C.

The impugned F.I.R. was lodged on 20.7.2016 by

respondent No.2 in F.I.R. C.R. No.I-79 of 2016 for

offences under Sections 354, 504, 506(2), and 114 of the

I.P.C. He has further submitted that prima facie, the

impugned F.I.R. is lodged as a counterblast to harass the

present applicant. Upon a bare reading of the impugned

F.I.R., no prudent person would consider the case of the

present respondent No.2 as genuine regarding the

allegations made in the impugned F.I.R. Additionally, he has submitted that since the present applicant has

lodged the F.I.R. as indicated above on 30.6.2014, the

impugned F.I.R. is lodged by respondent No.2 on

20.7.2016. Furthermore, he has submitted that even as

per the allegations in the complaint, no other person was

present at the time of the incident, and the incident is

narrated in a manner that prima facie does not make

out any offence against the present applicant. Therefore,

he has submitted that the continuation of proceedings

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pursuant to the impugned F.I.R. would amount to

harassment to the present applicant and an abuse of the

process of law. Hence, by relying on the judgment of the

Hon'ble Supreme Court in the cases of (i) State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604,

as well as (ii) Inder Mohan Goswami and Another versus

State of Uttaranchal reported in (2007) 12 SCC 1, he

prays to allow the present application by quashing the

impugned F.I.R.

5. On the contrary, Mr. N.V. Gandhi, the learned

counsel for respondent No.2, has strongly opposed the

request made by the learned counsel for the applicant

and has contended that even on a bare reading of the impugned F.I.R., the offences under Sections 354, 504,

506(2), and 114 of the I.P.C. are made out. Moreover, he

argues that merely lodging such F.I.R. after a period of

20 days, where the present applicant has already filed

an F.I.R. against the present respondent No.2, does not

preclude the respondent No.2 - complainant from lodging

a complaint for the alleged incident. He has further

submitted that the complainant immediately informed

persons residing nearby about the incident, and therefore,

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he has contended that the investigation might have been

carried out, and the charge-sheet might have also been

filed during the pendency of the present application.

Therefore, this Court should not exercise its inherent

jurisdiction under Section 482 of the Criminal Procedure

Code, 1973.

6. Mr. Manan Mehta, the learned Additional Public

Prosecutor (APP) for respondent No.1 - State, has

supported the submissions made by respondent No.2 -

complainant and has submitted that when a prima facie

case is made out against the present applicant, the

Court should normally not interfere in the proceedings

pursuant to the impugned F.I.R. Such exercise of powers under Section 482 of the Cr.P.C. should be exercised in

very exceptional cases where prima facie, no case is

made out against the accused person(s) or where the

continuation of proceedings would amount to an abuse of

process of law. Therefore, he has submitted that

considering the judgment of the Hon'ble Apex Court in

the case of Neeharika Infrastructure Pvt. Ltd. versus

State of Maharashtra and Others reported in 2021 SCC

OnLine SC 315, this Court may not grant any relief in

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favor of the present applicant.

7.1. I have considered the rival submissions made at the

bar by the respective parties. It transpires that prima

facie the present applicant lodged an F.I.R. on 30.6.2014 against respondent No.2 - present complainant being

F.I.R. C.R. No.I-66 of 2016 under Sections 406, 420,

506(2), and 114 of the I.P.C., whereby the family

members of the present respondent No.2 - complainant

were shown as accused persons. Pursuant to that,

respondent No.2 - present complaint has lodged the

impugned complaint on 20.7.2016 being F.I.R. C.R. No.I-

79 of 2016 for offences under Sections 354, 504, 506(2),

and 114 of the I.P.C., as under:

"Section 354 in The Indian Penal Code:-

354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 504 in The Indian Penal Code:-

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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.

Section 506 in The Indian Penal Code:-

506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Section 114 in The Indian Penal Code:-

114. Abettor present when offence is committed.--

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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."

7.2. Considering the averments made in the impugned

F.I.R., there is essentially reference to the ongoing

dispute between the family members of the complainant

and the present applicant. It is alleged by the present

complaint - respondent No.2 that on 16.7.2016 in the

noon, the complainant was at her residence, and at that

point in time, the applicant had come to her home and

physically assaulted her and also threatened her. On a

bare reading of the impugned F.I.R., it transpires that such an incident happened in broad daylight, and except

for the complainant, no one was present on the premises

at the time of the incident.

7.3. Considering the aspect that the applicant has

already filed the F.I.R. much before the alleged incident,

i.e., on 30.6.2016, prima facie, the impugned F.I.R. is

filed with a view to harassing the present applicant as

the present applicant has already filed an F.I.R. against

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the family members of respondent No.2, and by way of

counterblast, the impugned F.I.R. is lodged with a view

to pressurizing the present applicant pursuant to the

dispute regarding some land dispute.

7.4. Otherwise also, considering the fact that no eye-

witness is available on record, as per the averment made

in the complaint and considering the totality of the facts

and circumstances of the case, prima facie, it appears

that the complaint is lodged with an oblique motive and

with a view to harassing the present applicant.

7.5. Further, it will also be fruitful to mention the

judgment of the Hon'ble Supreme Court in the case of State of Haryana (supra), 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 sec.482 of the Code

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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

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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."

7.6 It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami

(supra), more particularly para : 23 & 24 thereof, which

read 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:

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[(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 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."

7.7. In view of the above discussions and judgments cited

above, I am of the opinion that this is a fit case where

this Court should exercise the powers under Section 482

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of the Cr.P.C. in favor of the present applicant to

prevent the abuse of the process of law.

8. Resultantly, the present application is allowed to

the aforesaid extent.

9. The impugned F.I.R. being C.R. No.I-79 of 2016

registered with Umagargao Police Station, District Valsad;