Gujarat High Court
Mukeshbhai Rasiklal Sheth vs State Of Gujarat on 4 February, 2025
NEUTRAL CITATION
R/SCR.A/7403/2015 JUDGMENT DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.7403 of 2015
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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MUKESHBHAI RASIKLAL SHETH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRADEEP PATEL(642) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR NASIR SAIYED(6145) for the Respondent(s) No. 2
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/02/2025
ORAL JUDGMENT
1. Rule. Learned APP Mr. Soaham Joshi for the
respondent no.1 - State of Gujarat and learned
advocate, Mr. Nasir Saiyed for the respondent no.2
waive service of notice of rule.
2. By way of the present application under Section
482 of the Code of Criminal Procedure, 1973 (for
short, the 'Code'), the applicant pray for
quashing and setting aside criminal complaint
being Complaint No.2982/2015 filed before the
court of learned Judicial Magistrate First Class,
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Kalol for the offences under Sections 464, 467,
469, 420, 406, 120(B) and 114 of the Indian Penal
Code as also the order dated 30.11.2015 passed
below Exh.1 issuing process upon the applicant.
3. Heard learned advocate, Mr. Pradeep Patel for the
applicant, learned APP Mr. Soaham Joshi for the
respondent no.1 - State of Gujarat and learned
advocate, Mr. Nasir Saiyed for the respondent
no.2.
4. Learned advocate submitted that the impugned
complaint and the order issuing process upon the
applicant is nothing but a gross abuse and misuse
of process of law in view of the fact that while
issuing process, the learned Judge concerned has
not taken properly considered the settled law and
in fact, the said order is non-speaking order,
therefore, the same may be quashed and set aside.
Learned advocate submitted that in fact, earlier
an attempt was being made by the respondent no.2
herein to lodge complaint against the applicant
and others, however, as the offence was not made
out, FIR was not registered, therefore, the
respondent no.2 approached this Court by filing
Special Criminal Application No.716/2012 with a
request to issue appropriate direction upon the
concerned police authority for registration of the
FIR, however, as the Coordinate Bench of this
Court was not inclined to entertain, the said
application was withdrawn with a liberty to avail
remedy under the provision of CrPC including
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filing of a private complaint, copy of said order
is produced on record at Page No.66 of the
compilation, and thereafter, the aforesaid private
complaint was filed before the learned Magistrate.
5. Learned advocate submitted that as stated above,
pursuant to the order passed by this Hon'ble
Court, private complaint has been filed by the
respondent no.2 herein, that too, in English
language on 25.04.2012, wherein on the very same
day i.e. on 25.04.2012, verification of the
respondent no.2 was done in a Gujarati language
and thumb impression of the respondent no.2 herein
has been obtained, which clearly goes on to show
that the same is sponsored litigation and,
thereafter, the learned Magistrate passed an order
under Section 202 of the CrPC directing the Police
Inspector of Kalol Police Station to investigate
into the complaint and submit report within 60
days and pursuant to the said order, the concerned
Police Officer of Kalol Police Station had carried
out investigation and submitted report before the
court of learned Magistrate. Learned advocate
submitted that if the Hon'ble Court would make a
cursory glance upon the recital of the said
report, in that event, it would be found out that
the concerned Investigating Officer has
categorically opined that no offence is made out
against the applicant and the applicant has not
signed on forged document. Learned advocate
further submitted that being aggrieved by such
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report, the respondent no.2 submitted an
application, Exh.4 on 23.03.2015 before the
learned Magistrate to re-investigate the matter
under Section 173(8) of the CrPC alleging
malafides against the concerned Investigating
Officer and without properly appreciating the
facts of the case, learned Magistrate, by an order
dated 23.03.2015, passed an order of inquiry under
Section 202 of the CrPC. Learned advocate
submitted that on the strength of the said order,
the concerned Investigating Officer had once again
carried out investigation and submitted detailed
report before the court of learned Magistrate on
09.10.2015. Learned advocate submitted that if the
Hon'ble Court make a cursory glance upon the
recital of the said report, in that event, it
would be found out that the concerned
Investigating Officer has categorically opined
that neither the accused nos.2 and 3 nor the
applicant herein have played any direct or
indirect role in the alleged commission of crime.
Learned advocate, however, submitted that despite
specific report submitted by the concerned
Investigating Officer, the learned Magistrate
registered the said complaint and issued process
against the applicant and other, therefore, the
prosecution launched against the applicant is
required to be quashed and set aside.
6. Learned advocate, at this stage, has drawn
attention of this Court towards the reports
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submitted by the concerned Investigating Officer
pursuant to the order passed by the learned
Magistrate and submitted that if the Hon'ble Court
make a cursory glance upon the said reports, in
that event, it would be found out that the
applicant has not committed any offence as alleged
and there is no direct or indirect involvement of
the applicant and despite the said fact, the
learned Magistrate has issued process against the
applicant, which clearly goes on to show that
there is total non-application of mind on the part
of the learned Magistrate. Learned advocate has
referred to the order passed by the learned
Magistrate issuing process and submitted that
without assigning any reason, straightway order
has been passed issuing process, which clearly
goes on to show that it is a non-speaking order,
therefore, the view adopted by the learned Judge
while taking cognizance in the matter is erroneous
view. Learned advocate, therefore, submitted that
the present application may be allowed by quashing
and setting aside the impugned complaint as also
order issuing process.
7. At this stage, learned advocate submitted that
considering the principle of law laid down by the
Hon'ble Apex Court in case of State of Haryana Vs.
Bhajan Lal, reported in AIR 1992 SC 604 as well as
in case of R.P. Kapur Vs. State of Punjab,
reported in AIR 1960 SC 866 : 1960 Cri LJ 1239,
the prosecution launched against the applicant is
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required to be quashed and set aside.
8. On the other hand, learned APP Mr. Joshi opposed
the present application with a vehemence and
submitted that bare reading of the contents of the
FIR, prima facie basic and essential ingredients
of the alleged offences are made out, therefore,
the order issuing process by the learned
Magistrate is just and proper, which does not
require interference any ends of this Hon'ble
Court. Learned APP further submitted that in fact,
the present application is preferred at premature
stage, therefore, no discretion may be exercised
in favour of the applicant.
9. Learned advocate, Mr. Saiyed appearing for the
respondent no.2 has also opposed the present
application and submitted that name and specific
role of the present applicant is clearly spelt out
in the body of the complaint. He submitted that in
fact, the applicant in connivance with other
accused have created forged and fabricated
documents and on the strength of the said forged
documents, the respondent no.2 herein was
dispossessed from the property, which led to
initiation of criminal proceedings against the
accused and after appreciating the facts of the
case and material available on record, the learned
Magistrate has rightly issued process by impugned
order, which may not be interfered with and the
accused may be directed to be prosecuted in such
serious offence.
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10. Having heard learned advocates appearing for the
parties and having considered the allegations
leveled in the impugned FIR, it is found out that
the respondent no.2 herein has filed private
complaint, wherein an order of inquiry under
Section 156(3) of the CrPC was passed directing
the Police Officer of Kalol Police Station to
investigate into the complaint filed by the
respondent no.2 herein and submit detailed report
within 60 days and pursuant thereto, the
investigation was carried out and the concerned
Investigating Officer submitted report before the
learned Magistrate to the effect that the
applicant is not directly or indirectly involved
in the commission of crime, however being
aggrieved by the said report, the respondent no.2
submitted an application to re-investigate into
the complaint and pursuant thereto, the learned
Magistrate passed an order of investigation under
Section 202 of the CrPC for investigation
directing the Police Officer to submit detailed
report and pursuant thereto, the investigation was
carried out again and detailed report had been
submitted before the learned Magistrate, which
clearly goes on to show that no offence is made
out against the applicant and despite that, the
order issuing process has been passed against the
petitioner, which led to filing of the present
petition.
11. I have considered the details reports submitted by
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the concerned Investigating Officer after carrying
out investigation as per the order passed by the
learned Magistrate and found that in the said
reports, the concerned Investigating Officer has
categorically opined that the petitioner has not
signed on forged documents and there is no direct
or indirect involvement of the petitioner in the
alleged commission of offence. I have also
considered the impugned order dated 30.11.2015
issuing process upon the petitioner, that too,
without assigning any reason, which clearly goes
on to show that the order impugned is non-speaking
order and while passing said order, the material
available on record has not been properly
considered including the report submitted by the
concerned IO. Therefore considering the above
facts of the case, I am of the considered opinion
that the present petition deserves to be allowed
and the impugned order deserves to be quashed and
set aside.
12. I have also considered the parameters set out by
the Hon'ble Apex Court in the case of Bhajan Lal
(supra) and in the case of R.P. Kapur (supra) and
in view of the aforesaid observations made by the
Coordinate Bench of this Court in the aforesaid
quashing petition, I am of the considered view
that even if the allegations levelled against the
applicant in the impugned FIR are taken at their
face value and accepted in their entirety, keeping
in view the facts of the present case and the
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penal provisions, they do not prima facie
constitute any offence or make out a case against
the accused persons.
13. Further, the scope and ambit of inherent powers of
the Court under Section 482 CrPC or the extra-
ordinary power under Article 226 of the
Constitution of India, now stands well defined by
series of judicial pronouncements. Undoubtedly,
this Court has inherent power to do real and
substantial justice, or to prevent abuse of the
process of the Court. At the same time, the Court
must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power vested in the Court
should not be exercised to stifle a legitimate
prosecution. However, this Court can exercise its
inherent power or extra-ordinary power if it comes
to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court, or the ends of justice require that the
proceeding ought to be quashed.
14. Thus, if the facts of the present case are to be
examined in the context of the aforesaid
observations made by the Hon'ble Apex Court, I am
of the considered opinion that the chances of an
ultimate conviction of the applicant on the basis
of the facts of the present case are bleak and
therefore continuation of criminal prosecution
against the applicant is nothing but sheer misuse
of process of the Court. Thus, considering the
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ratio enunciated by the Hon'ble Apex Court in
catena of decisions, I am of the considered
opinion that the complaint and the order passed
therein issuing process deserve to be quashed qua
the applicant.
15. In the result, the application succeeds and is
hereby allowed. Accordingly, the criminal
complaint being Complaint No.2982/2015 filed
before the court of learned Judicial Magistrate
First Class, Kalol as also the order dated
30.11.2015 passed below Exh.1 issuing process upon
the applicant are hereby quashed and set aside qua
the applicant.
16. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
