Gujarat High Court
Bhavnaben Kiranbhai Rathod vs State Of Gujarat on 25 August, 2025
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11661
of 2025
============================================
BHAVNABEN KIRANBHAI RATHOD
Versus
STATE OF GUJARAT & ANR.
============================================
Appearance:
MR JAGDISHBHAI K CHAUHAN(11689) for the Applicant(s) No. 1
PRATEEK S BHATIA(8629) for the Applicant(s) No. 1
MR ROHAN H. RAVAL, APP for the Respondent(s) No. 1
============================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 25/08/2025
ORAL ORDER
1) Rule. Learned APP waives service of notice of Rule for the
respondent No.1 - State.
2) By way of the present petition, the petitioner is seeking following
reliefs:
"(b) Your Lordships may be pleased to quash and set aside
the impugned First Information Report registered as
C.R.No.11195007250258/2025 dated 19.04.2025 with
Bhabhar Police Station, District: Banaskantha (Annexure-
A);
(c) Pending hearing and final disposal of the present
petition, Your Lordships may be pleased to stay further
proceedings in respect of the First Information Report
registered as C.R.No.11195007250258/2025 dated
19.04.2025 with Bhabhar Police Station, District:
Banaskantha (Annexure-A);
(d) An ex-parte ad interim relief in terms of prayer (C)
above may kindly be granted;
3) Heard learned advocates for the respective parties.
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
4) Learned advocate for the petitioner has submitted that present
petitioner is a lady and with ulterior motive she is arraigned as
an accused no.12. The allegations against the petitioner if taken
to be true and correct then also no offence is made out and no
role is attributed to her. The petitioner had not participated in
the commission of offence and allegations are vague and ill-
motivated. There is no overt act attributed to the present
petitioner and even she do not have any past antecedents. He
has further submitted that the petitioner has not used any
deadly weapon and no recovery or seizure from the present
petitioner and no eye-witness or material is collected against the
petitioner. Hence, he has requested to quash and set aside the
impugned FIR against the present petitioner as she is falsely
enroped in the offence.
5) Learned APP has vehemently opposed the present petition on
the ground that the petitioner is named in the FIR as accused
no.12. The accused persons by hatching unlawful assembly went
to the house of the complainant and they were aggressor. When
they started hurling abusive language to the complainant at his
home, at that time, they restricted the accused not to hurl
abusive language but at that time as the accused persons were
armed with deadly weapons they started assaulting and accused
no.2 got instigated and assaulted by iron tommy on the head of
the complainant. Further, when the daughter of the complainant
intervened at that time the present petitioner and other co-
accused caught hold her and they have also started assault on
complainant and witnesses by kick and fist blows and sticks.
Prima facie involvement of the petitioner is there and merely the
petitioner being a lady is not a ground to quash the impugned
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
complaint. The incident took place on 18.04.2025 and the
investigation is in progress. The anticipatory bail of the present
petitioner was also dismissed and successive application was
also refused. Hence, requested to dismiss the present petition as
investigation is at nascent stage.
6) Having heard the learned Advocates for the respective parties
and having gone through the documents on record, it is worth to
mention that the petitioner is arraigned as an accused no.12.
The impugned complaint is filed on 19.04.2025 for the offences
punishable under Sections 189(2), 191(2), 191(3), 190, 115(2),
118(1), 118(2), 296(b) and 351(3) of the Bharatiya Nyaya
Sanhita, 2023 and under Section 135 of the GP Act, and the
alleged incident took place on 18.04.2025 at 19:45 Hours and
information received on 19.04.2025 at 17:00 Hours.
7) Perusing the record it appears that the investigation is going on
and allegations against the present petitioner is that the
petitioner along with co-accused by hatching unlawful assembly
went to the house of the complainant and while witness
intervened to save the complainant, at that time the petitioner
caught hold of her and thereafter made assault by kick and fist
blows. Not only that, the allegation against the petitioner is that
she was a member of an unlawful assembly and all the accused,
who were aggressors, went to the house of the complainant and
started scuffle by pelting stones and hurled abusive language.
The complainant and victim sustained injuries. Therefore, overt
act attributed on the part of the petitioner is clearly revealed and
petitioner was also a member of unlawful assembly and hence
merely the petitioner being a lady is not a ground to quash and
set aside the impugned complaint and the Court is duty bound to
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
consider the allegations levelled in the complaint. Prima facie the
petitioner is named in the complaint and as she is a member of
unlawful assembly under the head of Sections 189(2), 191(2),
191(3) and 190 of the BNS, she is arraigned as an accused.
Therefore, prima facie involvement and overt act on the part of
the petitioner is clearly revealed and the petitioner being a lady
is not a ground to quash and set aside the proceeding. The
investigation is at preliminary stage and chargesheet is yet to be
filed.
7.1) Further, as it is established that petitioner is member of unlawful
assembly, it is relevant to consider the ingredients of unlawful
assembly as provided in Section 189(1) of BNS. The important
ingredient of an unlawful assembly is, number of persons
forming it i.e. five; and their common object. Common object of
the persons composing that assembly could be formed on the
spur of the moment and does not require prior deliberations. The
course of conduct adopted by the members of such assembly;
their behaviour before, during, and after the incident; and the
arms carried by them are a few basic and relevant factors to
determine the common object. In this regard, reference is
required to be made to the decision in the case of Manjit Singh
v. State of Punjab, (2019) 8 SCC 529.
7.2) Further, it would be apposite to refer to Sections 189(2), 191(2),
191(3), 190, 115(2), 118(1), 118(2), 296(b) and 351(3) of the
Bharatiya Nyaya Sanhita. Under Section 189(2) of the BNS,
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. Under Section
191(2), whoever is guilty of rioting, shall be punished with
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
imprisonment of either description for a term which may extend
to two years, or with fine, or with both. Under section 191(3),
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 five years, or with
fine, or with both and under Section 190, Every member of
unlawful assembly guilty of offence committed in prosecution of
common object : If an offence is committed by any member of
an unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence. Herein
case on hand, there are in total 12 accused and they have made
an assault and accused were member of unlawful assembly with
armed deadly weapons like iron tommy, knife and sticks and
utters ballad or words and intimidated with dire consequences
and assaulted the complainant and victim, so offence under
Sections 115(2), 118(1), 118(2), 296(b) and 351(3) of the
Bharatiya Nyaya Sanhita is also, prima facie, made out from
bare reading and uncontroverted allegations made in the
complaint.
7.3) This is a very premature and nascent stage to decide and come
to the conclusion in absence of any of the material. Merely relied
on the complaint that the present petitioners are not involved in
the present offence as present accused are also facing charge in
the aid of Section 190 of the Bharatiya Nyaya Sanhita, 2023 also
and once role attributed to the present petitioner is prima facie
appeared and her involvement is revealed. So far as other
defence is concerned, itself is a question of the evidence and
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
while exercising the powers under Section 528 of the BNSS, the
Court should not gone into defence raised by the accused
persons and shall not hold mini trial.
8) Further, reference is required to be made to the judgment of the
Apex Court in case of Rajeev Kourav v. Baisahab reported in
(2020) 3 SCC 317, it is observed that the evidence produced
by the accused in his/their defence cannot be looked into by the
court, except in very exceptional circumstances, at the initial
stage of criminal proceedings. The High Court cannot embark
upon the appreciation of evidence while considering the petition
filed under Section 482 of Cr.P.C. for quashing criminal
proceedings. If a prima facie case is made out disclosing the
ingredients of the offence alleged against the accused, the Court
cannot quash a criminal proceeding.
9) It is also appropriate to refer to the decision of the case of
Emperor vs. Khwaja Nazir Ahmed reported in AIR 1945 PC
18, wherein it has been observed that in India, there is a
statutory right on the part of the police to investigate the
circumstances of an alleged cognizable crime without requiring
any authority from the judicial authorities. It is further observed
that it would be an unfortunate result if it should be held
possible to interfere with those statutory rights by an exercise of
the inherent jurisdiction of the Court. It is further observed that
the functions of the judiciary and the police are complementary,
not overlapping, and the combination of individual liberty with a
due observance of law and order is only to be obtained by
leaving each to exercise its own function.
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
10) Considering the fact that the defence of accused or cross-
complaint can not be looked into at this stage. It would be
apposite to refer the case of Neeharika Infrastruecture Pvt.
Ltd. vs. State of Maharshtra, reported in 2021 SCC Online
SC 315 wherein, the Apex Court has observed that:
"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 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 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 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
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
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) xxx xxxx xxxx xxx xxx xxxxx
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
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 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) xxxxx xxxxx xxxxx xxx xx
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 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
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
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;"
11) Further, reference is required to be made to judgment passed by
the Apex Court in the case of Amit Kapoor v. Ramesh
Chandra, reported in 2012 9 SCC 460 online wherein the Apex
Court had held as under:
"27.1. Though there are no limits of the powers of
the Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the
rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the
case and the documents submitted therewith prima facie
establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no prudent
person can ever reach such a conclusion and where the
basic ingredients of a criminal offence are not satisfied
then the Court may interfere.
xxxxx xxxxx xxxxx xxxx xxxxxxx
27.8. Where the allegations made and as they appeared
from the record and documents annexed therewith to
predominantly give rise and constitute a 'civil wrong' with
no 'element of criminality' and does not satisfy the basic
ingredients of a criminal offence, the Court may be
justified in quashing the charge. Even in such cases, the
Court would not embark upon the critical analysis of the
evidence.
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
"27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction, the Court is concerned primarily
with the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
27.10 . It is neither necessary nor is the court called upon
to hold a full- fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out whether
it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint
cannot be maintained.
xxxxx xxxxx xxxxx xxxx
27.13. Quashing of a charge is an exception to the
rule of continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its quashing
at that initial stage. The Court is not expected to marshal
the records with a view to decide admissibility and
reliability of the documents or records but is an opinion
formed prima facie."
12) Further, in the case of Ramveer Upadhyay and Anr. vs. State
of U.P. and Anr. reported in 2022 OnLine SC 484, it is
observed and held by the Apex Court that the High Court, while
exercising jurisdiction under Section 482 of the Cr.P.C, would
not ordinarily embark upon an enquiry into whether the evidence
is reliable or not or whether there is reasonable possibility that
the accusation would not be sustained and scuttled the
NEUTRAL CITATION
R/SCR.A/11661/2025 ORDER DATED: 25/08/2025
undefined
investigation at very preliminary stage as investigation is in
progress.
13) Considering the aforesaid conspectus facts, and settled position
of law, as prima facie involvement of the petitioner is revealed
and allegation also discloses involvement of the petitioner in the
offence, hence, merely the petitioner being a lady is not a
ground, therefore, the Court is unable to come any conclusion
that the offence is not made out and complaint is filed only with
a view to harass the petitioner and ulterior motive. Therefore,
the petition stands dismissed. Observations made herein above
are tentative in nature and will not cause any prejudice to either
party at the trial. No case is made out to entertain the present
petition. Rule is discharged.
(HASMUKH D. SUTHAR,J)
ANKIT
