Gujarat High Court
Priyankaben Bhupendrabhai Pandya vs State Of Gujarat on 10 February, 2025
NEUTRAL CITATION
R/SCR.A/2312/2024 ORDER DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2312 of 2024
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PRIYANKABEN BHUPENDRABHAI PANDYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1
MR RAHUL K DAVE(3978) for the Applicant(s) No. 1
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/02/2025
ORAL ORDER
1. The present petition is filed for seeking the
following reliefs:
"a. Your Lordships be pleased to admit this petition.
b. Your Lordships be pleased issue writ of mandamus or
any other appropriate writ direction or order to quash and
set aside the FIR filed before Aanand Town Police Station
being I CR No. 11215002240146 of 2024 u/s. 406 and 420
of the IP Code along with all the prior and subsequent
proceedings there to qua the applicant.
c. Your Lordships be pleased to stay the further proceeding
and investigation of the FIR filed before Aanand Town
Police Station being I CR No. 11215002240146 of 2024 u/s.
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406 and 420 of the IP Codepending the admission and final
hearing of this petition qua the applicant.
d. Your Lordships be pleased to grant any such other and
further relief/s as deemed just and proper in the interest of
justice"
2. Heard Mr. Kirtidev Dave, learned advocate for the
petitioner and Mr. Chintan Dave, learned APP for the
respondent - State.
3. Mr. Kirtidev Dave, learned advocate for the
petitioner has referred towards paragraph No.7 of the
present petition and has submitted that the complainant
after making several attempts to file complaint before
Petlad Rural Police Station, Lotiya Bhagole Police
Station, Anand Town Police Station and LCB Police
Station, and ultimately, the present FIR is registered by
the Anand Town Police Station under Sections 406 and
420 of the Indian Penal Code. He has further submitted
that essentially, there is some transaction by way of
mortgage entered into by the wife of the present
complainant with the present petitioner and thereafter,
the present complaint has been filed with the view to
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pressurizing the present petitioner by the complainant
and, therefore, the same will amount to abuse of process
of law. He has further submitted that FIR is registered
after a long delay, which indicates that there is some
fishy in the matter. He has further submitted that as
narrated in the FIR that though Kiritbhai Patel, who is
living in USA belongs to his village and he has helped
him to meet with visa consultant and as the complainant
is in need of money as she has filed application for visa
through one Hetalbhai, she has taken money from the
applicant and given property in the mortgage and,
therefore, he has submitted that continuation of the
proceeding pursuant to the complaint will amount to
abuse of process of law.
4. Mr. Chintan Dave, learned APP for the respondent
- State has tendered the copy of the report received
from concerned Police Station and has submitted that
now, charge sheet is filed after proper investigation
carried out by the investigating agency. He has
submitted that from the papers of charge-sheet, it clearly
transpires that prima facie, offence is made out and
there is sufficient material available on the record, which
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indicates that petitioner has committed offence by
defrauding the complainant regarding the process of Visa.
He has therefore submitted that all the issues raised by
the petitioner at the best can be considered at the time
of trial, and no powers can be exercised at this stage.
5.1 I have considered the rival submissions made at the
bar. Considering the tenor of the complaint, it transpires
that there is complaint filed by one Arpitaben Vipulbhai
Suthar against the present petitioner by alleging that the
petitioner has demanded Rs.1,50,000/- by check and
Rs.8,50,000/- in cash from Vipulbhai Suthar, who happens
to be the relative of the complainant and thereafter, the
visa is not granted and therefore, the amount which is
taken towards granting of visa is also duped. Moreover,
it is alleged in the FIR that petitioner has asked the
husband of the complainant to create mortgage of some
property and accordingly, the mortgage is also created for
the property to complete the work, which is not
completed by the present petitioner. I have considered
the nature of such offences. It is fruitful to refer the
provisions which are involved in the FIR under Sections
406 and 420 of the I.P.C., which reads as follows:
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"Section 406 in The Indian Penal Code, 1860:-
406. Punishment for criminal breach of trust.--
Whoever commits criminal breach of trust shall be punished
with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
420 in The Indian Penal Code, 1860:-
Cheating and dishonestly inducing delivery of property:-
Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which
is capable of being converted into a valuable security, shall
be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine."
5.2 Prima facie, on bare reading of the FIR, offence is
made out. Considering the fact that after thorough
investigation, charge-sheet is also filed, which prima facie
established the case of the complainant and the Court is
aware that the Court should exercise powers if the
proceedings are found to be initiated without malicious
intention or on bare reading of the FIR, no offence is
disclosed or continuation of the proceeding will create
undue hardship and amount to abuse of process of law.
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Considering the nature of the allegations and considering
the offence involved in the present matter and
considering the fact that now charge-sheet is also filed, I
am of the view that no cause is made out for quashing
of the impugned FIR as prima facie, the FIR satisfies
the ingredients of the alleged offence and the section as
alleged of the I.P.C.
5.3 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
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
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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
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
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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
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;
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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) 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
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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
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
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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
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
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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."
5.4 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 :
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.
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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
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
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quashing the FIR."
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
