Gujarat High Court

Riken @ Rikin Rameshbhai Patel vs State Of Gujarat on 21 June, 2024

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    R/CR.MA/117/2021                            ORDER DATED: 21/06/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
   R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 117 of 2021
                               With
  CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF)
                          NO. 1 of 2024
        In R/CRIMINAL MISC.APPLICATION NO. 117 of 2021
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             RIKEN @ RIKIN RAMESHBHAI PATEL & ANR.
                              Versus
                    STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1,2
MR HARSH A VYAS(9330) for the Respondent(s) No. 2
MS DIXA U PANDYA(9412) for the Respondent(s) No. 2
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                          Date : 21/06/2024
                           ORAL ORDER

Draft amendment is allowed. To be carried out forthwith.

[1.0] By way of present petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for the following relief:

"(B) This Hon'ble Court may kindly be pleased to quash the impugned FIR dated 25.10.2020 registered vide CR No.I-

11215007200398/2020 for the offences alleged to have been committed and punishable under Sections 307, 143, 148, 148, 149, 504 and 506(2) of IPC read with section 135 of Gujarat Police Act with Borsad Rural Police Station, District Anand and all consequent proceedings arising there from against the petitioners in the interest of justice;"

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[2.0] Heard learned advocate Mr. Vaibhav Sheth for the petitioners, learned APP Mr. H.K. Patel for respondent No.1 and learned advocate Ms. Dixa Pandya for respondent No.2 - original complainant.

[3.0] It is the case of the petitioners that at the instance of respondent No.2, impugned FIR came to be filed with Borsad Rural Police Station for the offences punishable under Sections 307, 143, 147, 148, 149, 505, 506(2) of the Indian Penal Code, 1860 (For short "IPC") and section 135 of the Gujarat Police Act in all against 7 accused persons, wherein it is alleged that when respondent No.2 herein - original complainant was ploughing his land with the help of tractor, accused No.1 had come and started shouting on the complainant and asked him to leave and then, accused No.1 brought an axe and gave a blow on the head of complainant however, the complainant resisted the law and the axe was hit on the right hand of the complainant and he started bleeding from the palm and then other accused persons came and started hurling abusive language and then, while going away, accused No.1 administered threat of dire consequences to the complainant. It is under these circumstances that the impugned FIR came to be filed.

[4.0] Learned advocate for the petitioners has submitted that the dispute pertaining to land between the family members gave rise to the present incident wherein present petitioners are falsely enroped and even a cross-complaint is filed. Further, present petitioners reached the place of incident after the occurrence of incident and there is no specific role attributed to the present petitioners. Hence, he has requested to allow the

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present petition.

[5.0] Learned APP has opposed the present petition and submitted that this is not a case where present petitioners came after the incident was over. There is a dispute between the parties pertaining to land and even cross-complaint is filed and in the cross-complaint proceedings qua present respondent No.2 are going on. Hence, he has requested not to exercise the powers of quashing in the present case as the arguments and grounds raised in the petition amount to defence and is required to be adjudicated at the time of trial. Hence, he has requested to dismiss the present petition.

[6.0] Learned advocate for respondent No.2 - original complainant has submitted that while respondent No.2 was ploughing the field, at that time accused No.1 came and shouted and all accused by forming unlawful assembly in furtherance of their common intention they hurled abusive language and accused No.1 came with axe and administered threat and then he has made an assault in which respondent No.2 sustained injury and the witnesses who intervened also sustained injury. Further, the petitioners herein were present at the time of incident and were part of unlawful assembly and in furtherance of common object they had participated in the offence and have also hurled abusive language. Considering the aforesaid fact, she has requested that the present petitioners are named in the complaint and proceedings qua cross-case filed at the instance of accused No.1 against present complainant is going on wherein evidence is also recorded and presence of petitioners at the time and place of incident is not in dispute. Hence, she has requested

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to dismiss the present petition.

[7.0] Going through the record of the case, it appears that the petitioners are facing charges under Sections 307, 143, 147, 148, 149, 505, 506(2) of the IPC and section 135 of the Gujarat Police Act.

[7.1] So far as section 307 of the IPC is concerned, injury is not material but intention is important and nature of weapon used in commission of the offence is also required to be considered. Herein, present petitioners are also arraigned as accused in aid of sections 143, 147 and 148 of the IPC.

"143. Punishment.- Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

147. Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

148. Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

It is needless to say that the petitioners herein were present at the time of commission of offence, their names also surfaced in the complaint. When a person is attacked by a group of persons, it is difficult to establish physical assault. There is a clear cut allegation against the present petitioners that they

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were member of unlawful assembly sharing a common object. They had formed an unlawful assembly and group and there was a common object of physical assault to the complainant. Hence, accused persons came with deadly weapon axe in hand. Section 141 of the IPC defines 'unlawful assembly' which is an important element to establish joint liability of the members under section 149 of the IPC. In aid of section 149 of the IPC, present petitioners are arraigned as accused and provisions of sections 143, 147, 148 and 149 of the IPC are enacted in order to maintain tranquility of the society and present petitioners actively participated in the commission of attack by virtue of section 149 of the IPC in aid of the common object as they acted in furtherance of common object, they are arraigned as accused.

[7.2] As cross-complaint being CR No.11215007200399 of 2020 with Borsad Rural Police Station for the offences punishable under Sections 307, 143, 147, 148, 149, 504 and 506(2) of the IPC and section 135 of the Gujarat Police Act is filed at the instance of accused No.1 - Mukeshbhai Ranchhodbhai Patel against respondent No.2 herein for the same transaction and in connection of the same disputed land and the same. It is pertinent to note that in the said complaint, present respondent No.2 is impleaded as accused No.2 and said complaint is filed on 25.10.2020 at 16.30 hours whereas the impugned FIR was filed at 15.30 hours on the same date. The proceeding arising from the cross-case which is registered subsequently is going on and is in progress and evidence being recorded while proceeding in connection with the impugned complaint has remained stand- still. In view of the above, as cross-complaint is filed and specific role is attributed to the present petitioners and as the presence

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of present petitioners at the scene of offence is also not in dispute and in aid of section 149 of the IPC proceedings are initiated and as presence of petitioners is not proved and fir same transaction two cases are being going on, both the cases are required to be tried together though one case filed against respondent No.2 herein is going on and trial is in progress while in the proceedings arising from the impugned complaint, charge is yet to be framed. In such event, in the humble opinion of this Court, defence of accused persons in the said cross-case which is filed at the instance of accused No.1 against respondent No.2 herein would cause serious prejudice to present respondent No.2. As per the law laid down in the case of State of M.P. vs. Mishrilal (Dead) and Others reported in (2003) 9 SCC 426, the Hon'ble Apex Court held that when cross-case is filed then such cross-case should be tried together by the same Court irrespective of the nature of offence involved. Further, it is held that rationale behind this is to avoid the conflicting judgment over the same incident. Herein, incident is same, timing is also same and presence of accused persons is not in dispute. The trial of cross-case being faced by present respondent No.2 is in progress while the trial of impugned complaint faced by present petitioners is at stand-still. In view of the above, proceeding of sessions case arising out of the FIR being CR No.11215007200399 of 2020 is required to be stayed and tried together alongwith proceedings arising out of the impugned FIR being CR No.11215007200398 of 2020.

[7.3] So far as voice raised by the learned advocate for the petitioners qua applicability of sections 143 and 149 of the IPC is concerned, while exercising the jurisdiction under Section 482 of

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the CrPC, appreciation of evidence is not permissible and Court is not duty bound to hold mini-trial at this stage. Learned advocate for the petitioners has submitted that present petitioners have not committed any offence as alleged against them. It is needless to say that the petitioners are facing charge under Section 149 of the IPC. The Hon'ble Supreme Court in the case of Parshuram vs. State of M.P. rendered in Criminal Appeal No.524 of 2021, considering the judgment of Constitutional Bench of Hon'ble Supreme Court in the case of Masalti vs. State of U.P. reported in AIR 1965 SC 202 has observed and held as under:

"17. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained alognwith the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.

It is in that context that the observations made by this Court in the case of Baladin [AIR 1956 SC 181] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly..."

Hence, it is question of evidence as to whether any overt act was there or not on the part of the petitioners but common

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object and other facts and participation of the petitioners is required to be considered after appreciation of evidence. The said common object may infer from the cumulative effect of facts of a particular case. In this regard, reference is required to be made to the case of Mahendran vs. The State of Tamil Nadu reported in (2019) 5 SCC 67.

[7.4] Herein, allegation against the petitioners is that more than 5 accused came by forming unlawful assembly with common object in connection of dispute qua land and then accused have made an assault and present petitioners have also used abusive language and are also facing charge under Sections 504 and 506(2) of the IPC. In view of the above, the argument canvassed by the learned advocate for the petitioners that petitioners are not liable for prosecution as they came subsequently is not acceptable as in the complaint itself it is stated that by forming unlawful assembly with common object, present petitioners alongwith other accused came at the place of offence.

[8.0] The second limb of argument of learned advocate for the petitioners is that no any allegation of commission of offence punishable under section 307 of IPC is made against the present petitioners. It is needless to say that under Sections 211 to 224 of the CrPC provisions being made for framing of charge. Section 220 of CrPC provides for provision of trial for more than one offence while section 221 of CrPC provides for if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute an offence and under Section 223 of the CrPC, person may be charged jointly and at the time of framing of charge, it is the duty

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of the concerned Presiding Officer to consider the investigation papers and frame appropriate charge. Hence, this Court in exercise of powers under Section 482 of the CrPC is not required to appreciate the investigation papers and to decide as to under which section charge is to be framed and hence, said argument is also not accepted.

[9.0] In view of the above discussion, this is not a case to scuttle the criminal proceedings when at the initial stage prima facie offence is made out and FIR does not fall within the purview of exception and rarity than the original rules. 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. The inherent power of the Court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 of the CrPC. At this stage, it will be profitable to refer to the decision of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, wherein it is observed and paragraph 57 of which reads as under:

"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

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 cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare

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cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

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 and a rarity 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. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;..."

[9.1] It is also necessary to consider whether the power conferred by the High Court under section 482 of the CrPC is warranted. It is true that the powers under Section 482 of the CrPC are very wide and the very plenitude of the power requires great caution in its exercise. In this regard, this Court deems it fit to refer to the judgment of the Hon'ble Apex Court in the case of Central Bureau of Investigation v. Aryan Singh reported in 2023 SCC OnLine SC 379; Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 OnLine SC 484 and Parbatbhai Aahir and Ors. vs. State of Gujarat and Ors. reported in (2017)9 SCC 641.

[10.0] In wake of aforesaid discussion, no case is made out to entertain the present petition and same is accordingly dismissed. Consequently, the interim relief granted earlier

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stands vacated forthwith since in cross-complaint, which is filed subsequent to the impugned complaint by respondent No.2, proceedings are going on which causes serious prejudice to the defence of respondent No.2, who is original complainant in the present case.

[11.0] The learned Sessions Judge, Anand is directed to expedite the trial of proceedings arising out of the impugned FIR being CR No.11215007200398 of 2020. While further proceedings of Sessions Case No.26 of 2021 arising out of FIR being CR No.11215007200399 of 2020 filed against present respondent No.2 is in progress and evidence being recorded. So as to avoid prejudice being caused to respondent No.2 herein, learned Sessions Judge is directed to stay the proceedings of Sessions Case No.26 of 2021 till recording of evidence of witnesses in connection of impugned FIR being CR No.11215007200398 of 2020 is over and then shall hear the arguments of both the cases. Learned Sessions Judge is also directed to try and decide both the cases together so as to avoid any conflicting judgments in cases arising out of a common incident. Rule is hereby discharged.

[12.0] In view of disposal of Criminal Misc. Application No.117 of 2021, Criminal Misc. Application (For vacation of stay) No.1 of 2024 in Criminal Misc. Application No.117 of 2021 also stands disposed of.

(HASMUKH D. SUTHAR, J.) Ajay