Gujarat High Court
Yuvrajsinh Kishorsinh Gohil vs State Of Gujarat on 3 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1554 of 2025
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YUVRAJSINH KISHORSINH GOHIL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. PARAM. S. DAVE(14217) for the Applicant(s) No. 1
MS. SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/02/2025
ORAL ORDER
1. The present petition is filed for seeking the
following reliefs:
"(A) This Hon'ble Court may be pleased to admit and allow
this petition.
(B) This Hon'ble Court may be pleased to quash and set
aside F.I.R. being C.R. No.11189006241082 of 2024
registered at Tankara Police Station, District
Morbi, on 12.12.2024, for the offence U/Ss. 199, 233, 228,
201, 336, 338, 340, 308 (2), 3 (5), 61 and 54 of Bhartiya
Nagrik Sanhita; 2023 read with Section 7, 12, 13(1) (a) and
13 (2) The Prevention of Corruption; 1988 at Annexure-A
and all other subsequent and consequential proceedings qua
the present petitioner arising from the impugned FIR.
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(C) Pending admission, final hearing and disposal of the
present petition, stay the further proceedings as well direct
the investigation officer to not take any coercive action in
connection with the F.I.R. being C.R. No. 11189006241082 of
2024 registered at Tankara Police Station, District Morbi,
on 12.12.2024, for the offence U/Ss. 199, 233, 228, 201, 336,
338, 340, 308 (2), 3 (5), 61 and 54 of Bhartiya Nagrik
Sanhita; 2023 read with Section 7, 12, 13(1) (a) and 13 (2)
The Prevention of Corruption; 1988 at Annexure-A and all
other subsequent and consequential proceedings qua the
present petitioner arising from the impugned FIR;
(D) This Hon'ble Court may be pleased to grant any other
and further relief/s, as may be deemed just and proper in
the interest of justice."
2. Heard Mr. C.B. Upadhyay, learned advocate with
Mr. Param Dave, learned advocate for the petitioner and
Ms. Shruti Shah, learned APP for the respondent -
State.
3. Mr. C.B. Upadhyay, learned advocate with Mr.
Param Dave, learned advocate for the petitioner has
submitted that on bare reading of the FIR, it transpires
that the FIR is having nothing but a patent misuse of
machinery and the reasons stated in the FIR states the
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oblique motive of the complainant. He has further
submitted that informant - complainant in the complicity
with the machinery has given the complaint for his own
wrongdoing and has given such so called incident as
complexion of criminal offence. He has further submitted
that there cannot be any FIR against the police officer,
who is supposed to discharge his duty. He has further
submitted that the proceedings, which are initiated by
way of present FIR are manifestly attended and not only
with malafide intention but also a malicious proceeding
is instituted with an ulterior motive for wracking
vengeance. Furthermore, he has submitted that offences,
which are allegedly mentioned in the FIR, are
contradictory to each other. Furthermore, he has
submitted that in the facts of the case, the provisions of
the Prevention of Corruption Act cannot be applied and
if those provisions are applied then the case of extortion,
which is mentioned in the complaint, cannot at all be
considered as available. He has further submitted that
there is difference between theft and extortion.
Furthermore, he has submitted that looking to the facts
of the case in the FIR, the accused No.4 has deliberately
concealed his identity at the time of arrest when the
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initial raid was carried out by the present petitioner
being a police officer thereafter, has made issue of
identity. With the help of some other police officers and
with a view to wracking vengeance against the present
petitioner, the present complaint has been preferred by
the present complainant. He has further submitted that
in the background of this factual aspects and considering
the offences as mentioned in the FIR, no offence is made
out. In support of his submissions, he has relied upon
the decision of the Hon'ble Apex Court in the cases of
(i) Mohammed Ibrahim and Others vs. Stateof Bihar and
Another reported in (2009) 8 SCC 751, (ii) Usha
Chakraborty and Another vs. State of West Bengal and
Another reported in (2023) 15 SCC 135, and (iii) Salib
Alias Shalu alias Salim vs. State of U.P. and Others
reported in 2023 SCC OnLine SC 947, and has
submitted that the proceedings are required to be
quashed by exercising powers under Section 582 of the
Bharatiya Nyan Sanhita, 2023 as the basic requirement
of sections, which are alleged in the FIR, are not
satisfied and continuation of the proceedings will amount
to abuse of process of law. Hence, he has prayed for
interference of this Court.
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4.1 Ms. Shruti Shah, learned APP for the respondent -
State, has strongly opposed the submissions made at the
bar by the learned advocate for the petitioner. She has
submitted that the petitioner, being a Police Inspector of
the Tankara Police Station at the relevant time, carried
out a raid at the hotel, during which some of the
persons were arrested for engaging in gambling, and
offences were duly registered for the gambling activity.
However, it transpires that the petitioner became
involved in unlawful activity by demanding a certain
amount from those caught red-handed at the gambling
location. Ms. Shah, learned APP has further submitted
that the record reveals the petitioner received a
substantial amount of money. Initially, Rs. 12 lakhs was
shown as the amount recovered; later, Rs. 41 lakhs was
also demanded and received, and subsequently, Rs. 10
lakhs were also obtained from the accused persons by
misusing his powers as a Police Officer. This clearly
indicates the involvement of the petitioner in the alleged
offence. She has further stated that when the Director
General of Police received the complaint, he assigned the
investigation to the State Monitoring Cell. The DIG of
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the State Monitoring Cell personally visited the site of
the incident and the surrounding areas. After conducting
the necessary inquiries, he found sufficient evidence,
leading to the registration of the impugned FIR against
the petitioner under the provisions of the Bharatiya
Nyan Sanhita, 2023, and the Prevention of Corruption
Act. She has further argued that serious allegation of
extortion is evident from a bare reading of the FIR,
given that the petitioner misused his authority while
discharging his duties as a police officer and, with the
intention of providing benefits to the accused, demanded
and received money. She also noted that, based on the
materials in the investigation papers, it appears the
petitioner attempted to manipulate the investigation of
the earlier gambling raid by changing the mobile
numbers and names of the accused, which is a serious
matter. Therefore, considering the evidence, it is clear
that an offence under the Prevention of Corruption Act
is made out, based on a simple reading of the FIR as
well as other materials and statements recorded by the
State Monitoring Cell during the investigation. This
includes statements from all involved parties, including
the hotel staff, police officers, and Panchas present
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during the raid. These facts strongly connect the
petitioner to the offence as alleged in the FIR, and all
the ingredients of Sections 199, 233, 228, 201, 336, 338,
340, 308(2), 3(5), 61, and 54 of the Bharatiya Nyan
Sanhita, 2023, read with Sections 7, 12, 13(1)(a), and
13(2) of the Prevention of Corruption Act, 1988, are
satisfied.
4.2 She further submitted that the judgments relied
upon by the petitioner are not helpful to the facts of the
present case, as the facts of those cases are different.
She has submitted that the petitioner and other
individuals involved in the illegal activities as police
members have been suspended following the registration
of the FIR. Despite more than a month having passed
since the FIR's registration, the petitioner has not co-
operated in the investigation process by not appearing
before the police authorities. Therefore, she has argued
that since prima facie case has been established, the
Court should refrain from exercising its powers under
Article 226/227 of the Constitution of India, as well as
under Section 582 of the Bharatiya Nyan Sanhita, 2023
as such powers should be exercised sparingly when the
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Court finds no offence is made out from the bare
reading of the complaint or when the continuation of
proceedings would amount to an abuse of the legal
process. In this case, none of these conditions are
satisfied, and thus, the Court should not exercise its
powers. Hence, she has prayed that the present petition
may be dismissed.
5.1 I have considered the rival submissions made at the
bar. Prima facie, it transpires from the FIR and other
materials available on record that, on 26.10.2024, a raid
was carried out at Comfort Resort, Room No. 105, near
Tankara, by the present petitioner and other police
officers. At that relevant time, the present petitioner was
serving as Police Inspector at Tankara Police Station.
During the course of the raid, nine persons were found
at the scene of the incident. It further transpires that
the present petitioner used his powers to demand an
illegal amount from the accused persons and also
received Rs. 12 lakhs from one Sumit Akbari, who is a
friend of the accused, Bimal Padariya. Subsequently, Rs.
41 lakhs was also received, and later, an additional Rs.
10 lakhs in cash was received from the relatives of the
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accused persons. Accordingly, he has prepared the
necessary papers for the investigation by changing the
names and mobile numbers of the persons involved. It
also transpires from the investigation papers that the
petitioner is not co-operating with the process of
investigation, despite the FIR being filed on 12
December, 2024. Although he is a Police Officer, he is
absconding and is not cooperating with the police
machinery in any manner. The police have also filed a
report before the concerned Magistrate regarding this.
Furthermore, there are serious allegations made under
the provisions of Sections 199, 233, 228, 201, 336, 338,
340, 308(2), 3(5), 61, and 54 of the Bharatiya Nyan
Sanhita, 2023, read with Sections 7, 12, 13(1)(a), and
13(2) of the Prevention of Corruption Act, 1988, which
are as follows:
"199. Public servant disobeying direction under law.
Whoever, being a public servant,-
(a) knowingly disobeys any direction of the law which
prohibits him from requiring the attendance at any place of
any person for the purpose of investigation into an offence
or any other matter; or
(b) knowingly disobeys, to the prejudice of any person, any
other direction of the law regulating the manner in which
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he shall conduct such investigation; or
(c) fails to record any information given to him under sub-
section (1) of section 173 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 in relation to cognizable offence
punishable under section 64, section 65, section 66, section
67, section 68, section 70, section 71, section 74, section 76,
section 77, section 79, section 124, section 143 or section
144, shall be punished with rigorous imprisonment for a
term which shall not be less than six months but which
may extend to two years, and shall also be liable to fine.
[Similar to Section 166A from Old IPC-Also Refer ]
233. Using evidence known to be false.
Whoever corruptly uses or attempts to use as true or
genuine evidence any evidence which he knows to be false
or fabricated, shall be punished in the same manner as if
he gave or fabricated false evidence.
[Similar to Section 196 from Old IPC-Also Refer ]
228. Fabricating false evidence.:-
Whoever causes any circumstance to exist or makes any
false entry in any book or record, or electronic record or
makes any document or electronic record containing a false
statement, intending that such circumstance, false entry or
false statement may appear in evidence in a judicial
proceeding, or in a proceeding taken by law before a public
servant as such, or before an arbitrator, and that such
circumstance, false entry or false statement, so appearing in
evidence, may cause any person who in such proceeding is
to form an opinion upon the evidence, to entertain an
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erroneous opinion touching any point material to the result
of such proceeding is said "to fabricate false evidence".
Illustrations.
(a) A puts jewels into a box belonging to Z, with the
intention that they may be found in that box, and that this
circumstance may cause Z to be convicted of theft. A has
fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose
of using it as corroborative evidence in a Court. A has
fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a
criminal conspiracy, writes a letter in imitation of Z's
handwriting, purporting to be addressed to an accomplice in
such criminal conspiracy, and puts the letter in a place
which he knows that the officers of the police are likely to
search. A has fabricated false evidence.
[Similar to Section 192 from Old IPC-Also Refer ]
201. Public servant framing an incorrect document with
intent to cause injury.
Whoever, being a public servant, and being, as such public
servant, charged with the preparation or translation of any
document or electronic record, frames, prepares or translates
that document or electronic record in a manner which he
knows or believes to be incorrect, intending thereby to
cause or knowing it to be likely that he may thereby cause
injury to any person, shall be punished with imprisonment
of either description for a term which may extend to three
years, or with fine, or with both.
[Similar to Section 167 from Old IPC-Also Refer ]
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336. Forgery.
(1) Whoever makes any false document or false electronic
record or part of a document or electronic record, with
intent to cause damage or injury, to the public or to any
person, or to support any claim or title, or to cause any
person to part with property, or to enter into any express
or implied contract, or with intent to commit fraud or that
fraud may be committed, commits forgery.
[Similar to Section 463 from Old IPC-Also Refer ]
(2) Whoever commits forgery shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
[Similar to Section 465 from Old IPC-Also Refer ]
(3) Whoever commits forgery, intending that the document
or electronic record forged shall be used for the purpose of
cheating, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine.
[Similar to Section 468 from Old IPC-Also Refer ]
(4) Whoever commits forgery, intending that the document
or electronic record forged shall harm the reputation of any
party, or knowing that it is likely to be used for that
purpose, shall be punished with imprisonment of either
description for a term which may extend to three years,
and shall also be liable to fine.
[Similar to Section 469 from Old IPC-Also Refer ]
338. Forgery of valuable security, will, etc.
Whoever forges a document which purports to be a valuable
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security or a will, or an authority to adopt a son, or which
purports to give authority to any person to make or
transfer any valuable security, or to receive the principal,
interest or dividends thereon, or to receive or deliver any
money, movable property, or valuable security, or any
document purporting to be an acquittance or receipt
acknowledging the payment of money, or an acquittance or
receipt for the delivery of any movable property or valuable
security, shall be punished with imprisonment for life, or
with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
[Similar to Section 467 from Old IPC-Also Refer ]
340. Forged document or electronic record and using it as
genuine.
(1) A false document or electronic record made wholly or in
part by forgery is designated a forged document or
electronic record.
[Similar to Section 470 from Old IPC-Also Refer ]
(2) Whoever fraudulently or dishonestly uses as genuine any
document or electronic record which he knows or has reason
to believe to be a forged document or electronic record,
shall be punished in the same manner as if he had forged
such document or electronic record.
[Similar to Section 471 from Old IPC-Also Refer ]
308. Extortion.
(2) Whoever commits extortion shall be punished with
imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
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[Similar to Section 384 from Old IPC-Also Refer ]
3. General explanations.-
(5) When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone.
[Similar to Section 34 from Old IPC-Also Refer ]
61. Criminal conspiracy.-
(1) When two or more persons agree with the common
object to do, or cause to be done(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof.
Explanation. - It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object.
[Similar to Section 120A from Old IPC-Also Refer ]
(2) Whoever is a party to a criminal conspiracy,(a) to
commit an offence punishable with death, imprisonment for
life or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this
Sanhita for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such
offence;
(b) other than a criminal conspiracy to commit an offence
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punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding
six months, or with fine or with both.
[Similar to Section 120B from Old IPC-Also Refer ]
54. Abettor present when offence is committed.
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.
[Similar to Section 114 from Old IPC-Also Refer ]
Prevention of Corruption Act.
7. Offence relating to public servant being bribed.
[Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Any public servant who,-
(a) obtains or accepts or attempts to obtain from any
person, an undue advantage, with the intention to perform
or cause performance of public duty improperly or
dishonestly or to forbear or cause forbearance to perform
such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper or
dishonest performance of a public duty or for forbearing to
perform such duty either by himself or another public
servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
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consequence of accepting an undue advantage from any
person, shall be punishable with imprisonment for a term
which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an undue
advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or
has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give
him an amount of five thousand rupees to process his
routine ration card application on time. 'S' is guilty of an
offence under this section.
Explanation 2. - For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to
obtain" shall cover cases where a person being a public
servant, obtains or "accepts" or attempts to obtain, any
undue advantage for himself or for another person, by
abusing his position as a public servant or by using his
personal influence over another public servant; or by any
other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to obtain the
undue advantage directly or through a third party.
12. Punishment for abetment of offences.
[Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Whoever abets any offence punishable under this Act,
whether or not that offence is committed in consequence of
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that abetment, shall be punishable with imprisonment for a
term which shall be not less than three years, but which
may extend to seven years and shall also be liable to fine.]
13. Criminal misconduct by a public servant.
- [(1) A public servant is said to commit the offence of
criminal misconduct,-
(a) if he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted
to him or any property under his control as a public
servant or allows any other person so to do; or
13(2) Any public servant who commits criminal misconduct
shall be punishable with imprisonment for a term which
shall be not less than one year but which may extend to
seven years and shall also be liable to fine."
5.2 Considering the nature of the allegations made in
the present FIR, and the report tendered by the learned
APP, which has been produced for the perusal of this
Court, particularly the Muthammal Receipt, it is clear
that some mobile numbers, as well as the names of the
mobile instrument and the names of the persons from
whom such instruments were recovered, have been
altered by the petitioner, who was in-charge of the
Tankara Police Station and under whose leadership, the
raid was carried out. It also transpires that there is a
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screenshot of the illegal demand made by the present
petitioner and his aide, all of whom are suspended.
Therefore, considering the above, it is found that, prima
facie, case is made out.
5.3 It is also relevant to note that the complaint was
received to the Director General of Police from the media
and other persons. Pursuant to this, the Director General
of Police directed the Deputy Inspector General of the
State Monitoring Cell to carry out the necessary inquiry
and investigation regarding the allegations of extortion
and some mischief played by the raiding party. After
recording the necessary statements of the raiding party,
hotel staff, the accused persons, who were caught red-
handed at the time of the incident, and the persons who
gave money to the present petitioner, the FIR was
registered on 12.12.2024 under the provisions of Sections
199, 233, 228, 201, 336, 338, 340, 308(2), 3(5), 61, and
54 of the Bharatiya Nyay Sanhita, 2023, read with
Sections 7, 12, 13(1)(a), and 13(2) of the Prevention of
Corruption Act, 1988. Therefore, when prima facie
material is available on record to connect the present
petitioner to the offence, it cannot be said that no prima
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facie case is made out. Moreover, considering the conduct
of the petitioner, who happens to be a Police Inspector
and who has allegedly tried to misuse his position to
accept gratification in exchange for doing some favour in
favour of the accused is required to be viewed very
seriously, especially considering that he is not cooperating
with the investigation process even after almost 46 days
since the lodging of the FIR by the Police Authority.
5.4 Considering the fact that there is sufficient material
available on record, it cannot be said that the
continuation of the proceedings will amount to abuse of
the process of law in any manner. The Court should
exercise its powers very sparingly when it comes to
quashing such criminal prosecutions, considering the
serious nature of the allegations and considering the fact
that prima facie material is available on record against
the present petitioner, I am of the view that no powers
should be exercised in favour of the present petitioner.
5.5 At this stage, it would be fruitful to refer to the
recent decision of the Hon'ble Apex Court in the case of
Somjeet Mallick versus State of Jharkhand and others
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reported in (2024) 10 SCC 527, more particularly Paras :
15, 17 and 18 thereof, which read as under :
" 15. Before we proceed to test the
correctness of the impugned order, we must
bear in mind that at the stage of deciding
whether a criminal proceeding or FIR, as the
case may be, is to be quashed at the
threshold or not, the allegations in the FIR
or the police report or the complaint,
including the materials collected during
investigation or inquiry, as the case may be,
are to be taken at their face value so as to
determine whether a prima facie case for
investigation or proceeding against the
accused, as the case may be, is made out.
The correctness of the allegations is not to
be tested at this stage.
17. It is trite law that FIR is not an
encyclopaedia of all imputations. Therefore, to
test whether an FIR discloses commission of
a cognizable offence what is to be looked at
is not any omission in the accusations but
the gravamen of the accusations contained
therein to find out whether, prima facie,
some cognizable offence has been committed
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or not. At this stage, the Court is not
required to ascertain as to which specific
offence has been committed.
18. It is only after investigation, at the
time of framing charge, when materials
collected during investigation are before the
Court, the Court has to draw an opinion as
to for commission of which offence the
accused should be tried. Prior to that, if
satisfied, the Court may even discharge the
accused. Thus, when the FIR alleges a
dishonest conduct on the part of the accused
which, if supported by materials, would
disclose commission of a cognizable offence,
investigation should not be thwarted by
quashing the FIR."
5.6 Furthermore, in 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, and more particularly para
80 is relevant, which is as under:
"80. In view of the above and for the reasons stated
above, our final conclusions on the principal/core
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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
Cr.P.C and/or under Article 226 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 Cr.P.C.,
while dismissing/disposing of/not entertaining/not
quashing the criminal proceedings/complaint/FIR in
exercise of powers under Section 482 Cr.P.C. and/or
under Article 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 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
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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;
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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 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;
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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) 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 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
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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. 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
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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."
6. In view of above observations as well as facts
and and circumstances of the case, this Court does not
find any merit at this stage to quash the impugned FIR.
This petition, therefore, needs to be dismissed and is
dismissed accordingly.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
