Gujarat High Court
Shivdayal Govindlal Shrivastav vs State Of Gujarat on 4 February, 2025
NEUTRAL CITATION
R/CR.MA/5802/2024 ORDER DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5802 of 2024
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SHIVDAYAL GOVINDLAL SHRIVASTAV
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR A A ZABUAWALA(6823) for the Applicant(s) No. 1
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/02/2025
ORAL ORDER
1. The present application is filed for seeking the
following reliefs:
"a. Quash and set aside the F.I.R. being I Crime Register
No. 11199001220745 OF 2022 REGISTERED ON 25.07.2022
at City C Division Police Station, Bharuch for the offences
punishable under section
354 D, 509, 504 and 506 (2) of the Indian Penal Code,
1860 and quash and set aside the Criminal Case No. 3495
Of 2023 Pending before the Ld. Chief Judicial Magistrate
First Class; Bharuch District Bharuch, in interest of Justice.
b. By way of interim/ad interim relief stay further
proceedings of Criminal Case No. 3495 Of 2023 Pending
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before the Ld. Chief Judicial Magistrate First Class;
Bharuch District Bharuch, during pendency and till the
final disposal of the present petition; in interest of justice.
C. Grant any other and further relief/s as may deem fit in
the interest of justice."
2. Heard Mr. A.A. Zabuawala, learned advocate for the
applicant and Mr. Pranav Dhagat, learned APP for the
respondent - State.
3. Mr. A.A. Zabuawala, learned advocate for the
applicant has submitted that considering the materials
available on the record, the present FIR is nothing but a
counterblast FIR of the earlier complaint filed by the
applicant. He has submitted that considering the
provisions of law, no ingredients as alleged in the FIR
are satisfied. He has submitted that considering the fact
that the impugned FIR is filed with a view to mala fide
intention and wracking vengeance with the accused and
with a view to settling the private and personal grudge.
Furthermore, he has relied upon the decision of the
Hon'ble Apex Court in the case of State of Haryana V/s
Bhajan Lal reported in AIR 1992 SC 604, and has
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submitted that the present proceeding is required to be
quashed by exercising powers of this Court as the
complaint of the respondent No.2 is totally false,
imaginary and concocted one and with a view to settle
the score with the present applicant. Hence, he has
submitted that this Court should exercise its discretion
by granting the prayers made in the present application
by quashing the proceeding initiated pursuant to the FIR
wherein, charge-sheet is also filed and now, Criminal
Case No.3495 of 2023 is also registered and pending
before the concerned Court.
4. Learned APP for the respondent - State has
strongly opposed the submissions made at the bar and
has submitted that on bare reading of the FIR, prima
facie, case is made out against the present applicant,
and, therefore, the Court may not interfere at this stage
as such powers should be exercised very sparingly.
5.1 I have considered the rival submissions made at the
bar. I have also perused the materials available on the
record. The present FIR is registered on 25.07.2022
under the provisions of Sections 354D, 509, 504, and
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506(2) of the I.P.C., the provisions are as under:
"Section 354D in The Indian Penal Code, 1860:-
354D. Stalking.--
(1) Any man who--
(i) follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly despite
a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or
any other form of electronic communication,
commits the offence of stalking:
Provided that such conduct shall not amount to stalking if
the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or
detecting crime and the man accused of stalking had been
entrusted with the responsibility of prevention and detection
of crime by the State; or
(ii) it was pursued under any law or to comply with any
condition or requirement imposed by any person under any
law; or
(iii) in the particular circumstances such conduct was
reasonable and justified.
(2) Whoever commits the offence of stalking shall be
punished on first conviction with imprisonment of either
description for a term which may extend to three years,
and shall also be liable to fine; and be punished on a
second or subsequent conviction, with imprisonment of either
description for a term which may extend to five years, and
shall also be liable to fine.
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509. Word, gesture or act intended to insult the modesty of
a woman.--
Whoever, intending to insult the modesty of any woman,
utters any word, makes any sound or gesture, or exhibits
any object, intending that such word or sound shall be
heard, or that such gesture or object shall be seen, by such
woman, or intrudes upon the privacy of such woman, shall
be punished with simple imprisonment for a term which
may extend to three years, and also with fine.
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.
506. Punishment for criminal intimidation.--
Whoever commits, the offence of criminal intimidation shall
be punished with imprison-ment 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 imprisonment for life, or
with imprisonment for a term which may extend to seven
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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."
5.2 Considering the nature of the allegations made in
the FIR, it transpires that the accused is indulged in
the activity in making obscene gestures and also
capturing the photographs of the ladies residing in the
society namely Rayshreeben and other ladies of that
society. It is also alleged in the FIR that when the
complainant went for dumping of the garbage, at that
point of time, the accused has intercepted the
complainant and has made some obscene gestures against
the complainant and also threatened the complainant by
saying that he will take the revenge against the
complainant by doing some ritual work with the help of
some occultist (Tantrik).
5.3 Furthermore, it is required to take note of the fact
that in the present FIR, the investigation is carried out
and charge-sheet is also filed before the trial court in
the year 2023 and pursuant to that, Criminal Case
numbered as No.3495 of 2023 is also registered.
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5.4 On perusal of the materials available on the record
and the papers of the charge-sheet, it cannot be said
that continuation of the proceeding will amount to abuse
of process of law in any manner neither it can be said
that there is no prima facie case is made out against
the present applicant. On the contrary, on going through
the material, it transpires that the applicant is indulged
in such activities, which clearly molested the ladies of
the concerned society and one of the ladies has shown
some courage and registered the FIR against the present
applicant. Merely, some earlier incident has taken place
whereby the applicant has filed some complaint is not a
good ground to consider that present complaint is an
counterblast FIR of the earlier complainant filed by the
applicant with a view to seek revenge by the
complainant by which, prima facie, the ingredients as
alleged in the FIR are satisfied.
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
reported in (2024) 10 SCC 527, more particularly Paras :
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15, 17and 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
or not. At this stage, the Court is not
required to ascertain as to which specific
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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
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
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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
investigation to go on;
iv) The power of quashing should be exercised
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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
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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;
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
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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
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
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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
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
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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 valid reason at the stage of investigation to
quash the impugned FIR, more particularly, now the
trial is also ripe for further proceeding as criminal case
is already registered and hence, no purpose will be
served in considering the present application any further
as the present application is found merits-less and,
therefore, needs to be dismissed and is dismissed
accordingly.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
