Gujarat High Court
Vajabhai Tejabhai Rabari vs State Of Gujarat on 21 February, 2025
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6745 of 2017
==========================================================
VAJABHAI TEJABHAI RABARI & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1,2,3,4,5,6,7,8,9
MR HN BRAHMBHATT(200) for the Respondent(s) No. 2
MR CHINTAN DAVE APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/02/2025
ORAL ORDER
In FIR being CR No.I-134 of 2016 lodged with Amirgadh Police
Station for the offence punishable under Sections 395, 447, 504, 506(2)
and 427 of the Indian Penal Code; after filing of the charge-sheet, the
petitioners have invoked the jurisdiction of this Court under Section 482
of the Code of Criminal Procedure seeking quashment of the said FIR and
subsequent proceedings arising there-from.
2. Brief facts emerging from the FIR is that on 31/08/2016 at about
07:00 hours at Village Kapasia the accused named in the FIR having
armed with weapons like stick illegally came in the tractor No.GJ-8-P-
7285 in the agriculture field of the complainant and started giving kick
and fist blows caused damage to the room of the agriculture field and
after having looted four gunny bags of millet and five gunny bags of
castor oil amounting to Rs.20,000/- in the trolley of the tractor while
leaving threatening the complainant to leave the Village and agriculture
field within two days otherwise killed him by igniting with petrol in the
field.
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
3. Learned advocate Mr.Gadhvi for the petitioners taking this Court
through the FIR would submit that necessary and essential words for
establishing the robbery stated in Section 390 of the IPC, more
particularly, "...for that end..." is not satisfied. He would submit that first
informant has not committed that violence or hurt is caused with the
intention to commit theft and since the specific words as has been used in
the said provision are missing, the essential ingredients of Section 395 of
the IPC are not satisfied.
3.1 He would further submit that the picture of the incident stated in
the FIR continue same stage in filing of the charge-sheet. He would
further submit that even filing of the charge-sheet against the petitioner
did not occupy necessary averments and evidence in regards to say that
hurt was caused upon the victim at the time of theft with the intention to
commit theft and therefore since the essential ingredients are missing for
robbery, the FIR may be quashed and set aside in respect of offence
punishable under Section 395 of the IPC.
3.2 In support of his submissions, learned advocate for the petitioner
has relied upon the following case law and would submit that in absence
of necessary ingredient for the alleged charge against the petitioners the
petitioner may not be put to trial.
1. Mohammad Wajid & Another vs. State of Uttar Pradesh &
Ors., [203 (1) Scale 606].
2. Thakor Dashrathji Babuji vs. State of Gujarat [2022 (0)
GujHc 59783.
3. Oral Order rendered in CR.MA No.26157 of 2017 dated
23/11/2017.
4. Himatsing Shivsing vs. State of Gujarat [1961 (0) GLR 678].
5. Haji Iqbal @ Bala Through S.P.O.A. Vs. State of Uttar
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
Pradesh & Ors., [2023 (10) Scale 552].
4. Per contra, learned advocate Mr.Brahmbhatt appearing for the first
informant while placing reliance upon decision in case of Allauddin
Khan vs. State of Bihar [2019 (0) AIJEL-SC 63996] would submit that
jurisdiction under Section 482 of the Code being inherent jurisdiction and
the High Court has no jurisdiction to appreciate the evidence to find out
contradiction and inconsistency or viability of the statement of the
witnesses which are essential issue relating to appreciation of evidence.
He would further submit that such issue is better left for the trial of the
case and should be appreciated thereafter.
4.1 Upon above submissions, he would submit to dismiss the present
petition.
5. Learned APP Mr.Chintan Dave appearing for the respondent -
State while referring to decision in case of Kaptan Singh vs. State of
Uttar Pradesh & Ors., [(2021) 9 SCC 35] would submit that whether
accused came with the intention to cause hurt and loot or not could be
appreciated during the trial only. It cannot be inferred only from the FIR
more particularly when the charge-sheet is filed supporting the case of
prosecution to say that offence of robbery has been committed by the
petitioner. In his submissions, viability or legality of the statement cannot
be appreciated at the time of quashing of the FIR. This Court is legally
prevented from appreciating the evidence at the time of exercising powers
of quashing FIR and therefore he would submit to dismiss this petition.
6. Having heard the learned advocates appearing for the respective
parties and having gone through the FIR and charge-sheet papers what
could be noticed there-from that on 31/08/2016 at about 07:00 hours at
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
Village Kapasia the accused named in the FIR having armed with
weapons like stick illegally came in the tractor No.GJ-8-P-7285 in the
agriculture field of the complainant and started giving kick and fist blows
caused damage to the room of the agriculture field and after having looted
four gunny bags of millet and five gunny bags of castor oil amounting to
Rs.20,000/- in the trolley of the tractor while leaving threatening the
complainant to leave the Village and agriculture field within two days
otherwise killed him by igniting with petrol in the field.
6.1 This court while issuing Notice on 20/03/2017 has passed the
following order:
"This Court intends to examine a limited issue as regards the
applicability of the Section-395 of the I.P.C. having regard to the
nature of the allegations.
Let Notice be issued to the respondents, returnable on 20/06/2017.
Ms. Pathak, the learned Additional Public Prosecutor waives
service of notice for and on behalf of the respondent no.1-State of
Gujarat. The respondent no.2 be served directly through the
Investigating Officer of the concerned Police Station.
Since the investigation is over and the same has been culminated
in Criminal Case, let there be an ad-interim order in terms of
Para-7(B). On the returnable date, the Investigating Officer shall
remain present with the papers of the investigation. Notify the
matter on top of the board. Direct service is permitted."
7. Thus, the Court has limited examination of the issue in regards to
applicability of Section 395 of the IPC which reads thus:
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
"395. Punishment for dacoity.--
Whoever commits dacoity shall be punished with imprisonment for
life, or with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine."
8. The word dacoity is defined in Section 391 which reads thus:
"391. Dacoity.--
When five or more persons conjointly commit or attempt to commit
a robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or
more, every person so committing, attempting or aiding, is said to
commit "dacoity".
9. At this juncture, I may also refer to Section 390 which defines
robbery.
"390. Robbery.--
In all robbery there is either theft or extortion. When theft is
robbery.-- Theft is "robbery" if, in order to the committing of the
theft, or in committing the theft, or in carrying away or attempting
to carry away property obtained by the theft, the offender, for that
end, voluntarily causes or attempts to cause to any person death or
hurt or wrongful restraint, or fear of instant death or of instant
hurt, or of instant wrongful restraint. When extortion is robbery.--
Extortion is "robbery" if the offender, at the time of committing
the extortion, is in the presence of the person put in fear, and
commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that
person or to some other person, and, by so putting in fear, induces
the person so put in fear then and there to deliver up the thing
extorted.
Explanation.-- The offender is said to be present if he is
sufficiently near to put the other person in fear of instant death, of
instant hurt, or of instant wrongful restraint."
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
10. It is not in dispute that according to the case of the prosecution five
or more person jointly have alleged to have committed the offence.
Learned advocate for the petitioners heavily relied upon the word "...for
that end..." used in Section 390 and submitted that since the FIR and
relevant part are missing the same, Section 395 of the IPC cannot be
invoked in the FIR. At this juncture, I may refer to the decision in case of
Mohammad Wajid (supra), more particularly, paragraph 17 thereof
which reads thus:
"17. Ordinarily, if violence or hurt is caused at the time of theft, it
would be reasonable to infer that violence or hurt was caused for
facilitating the commission of the theft or for facilitating the
carrying away of the property stolen or for facilitating the attempt
to do so. But there may be something in the evidence to indicate
that hurt or violence was caused not for this purpose but for a
different purpose. We are of the view that prosecution has
blindfoldedly and without understanding the true purport of the
offence of "dacoity" registered the FIR for the offence punishable
under Section 395 of the IPC and proceeded to even prepare
charge sheet for the offence of dacoity."
11. If violence is caused at the time of theft, it would be reasonable to
infer that violence or hurt was caused for facilitating the commission of
the theft or for facilitating the carrying away of the property stolen or for
facilitating the attempt to do so. Coming back to the facts of the case, it
would appear that the accused named in the FIR having armed with
weapons like stick illegally came in the tractor No.GJ-8-P-7285 in the
agriculture field of the complainant and started giving kick and fist blows
caused damage to the room of the agriculture field and after having looted
four gunny bags of millet and five gunny bags of castor oil amounting to
Rs.20,000/- in the trolley of the tractor while leaving threatening the
complainant to leave the Village and agriculture field within two days
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
otherwise killed him by igniting with petrol in the field. Now, whether
was intention for committing loot or robbery or not can be tested during
the trial only. At this stage, learned advocate for the petitioner failed to
point that incident of causing hurt by giving kick and fist blows to the
complainant and taking away the gunny bags are two different act and
incident. FIR and charge-sheet papers alleging that in same breath the
accused committed entire offence. Learned advocate for the petitioners
also failed to point out any other circumstances to indicate that hurt or
violence was caused not for the purpose but for the different purpose.
12. In Allauddin Khan vs. State of Bihar (supra), the Apex Court
bars the High Court from exercising the jurisdiction under Section 482 of
the Code while appreciating the evidence and it has been held in
paragraph 17 to 18 as under:
"17. In our view, the High Court had no jurisdiction to appreciate
the evidence of the proceedings under Section 482 of the Code Of
Criminal Procedure, 1973 (for short "Cr.P.C.") because whether
there are contradictions or/and inconsistencies in the statements of
the witnesses is essentially an issue relating to appreciation of
evidence and the same can be gone into by the Judicial Magistrate
during trial when the entire evidence is adduced by the parties.
That stage is yet to come in this case.
18. It is due to these two errors, we are of the considered opinion
that the reasoning and the conclusion arrived at by the High Court
for quashing the complaint filed by the appellant against
respondent Nos. 2 and 3 is not legally sustainable and hence it
deservers to be set aside."
13. Reiterating after the said view, in Kaptan Singh (supra), the
Hon'ble Apex Court has held in paragraph 9.1 to 14 as under:
"9.1 At the outset, it is required to be noted that in the present case the
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
High Court in exercise of powers under Section 482 Cr.P.C. has
quashed the criminal proceedings for the offences under Sections 147,
148, 149, 406, 329 and 386 of IPC. It is required to be noted that when
the High Court in exercise of powers under Section 482 Cr.P.C.
quashed the criminal proceedings, by the time the Investigating Officer
after recording the statement of the witnesses, statement of the
complainant and collecting the evidence from the incident place and
after taking statement of the independent witnesses and even statement
of the accused persons, has filed the charge-sheet before the Learned
Magistrate for the offences under Sections 147, 148, 149, 406, 329 and
386 of IPC and even the learned Magistrate also took the cognizance.
From the impugned judgment and order passed by the High Court, it
does not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even the
statements recorded. If the petition under Section 482 Cr.P.C. was at
the stage of FIR in that case the allegations in the FIR/Complaint only
are required to be considered and whether a cognizable offence is
disclosed or not is required to be considered. However, thereafter when
the statements are recorded, evidence is collected and the charge-sheet
is filed after conclusion of the investigation/inquiry the matter stands on
different footing and the Court is required to consider the
material/evidence collected during the investigation. Even at this stage
also, as observed and held by this Court in catena of decisions, the High
Court is not required to go into the merits of the allegations and/or
enter into the merits of the case as if the High Court is exercising the
appellate jurisdiction and/or conducting the trial. As held by this Court
in the case of Dineshbhai Chandubhai Patel (Supra) in order to
examine as to whether factual contents of FIR disclose any cognizable
offence or not, the High Court cannot act like the Investigating agency
nor can exercise the powers like an Appellate Court. It is further
observed and held that question is required to be examined keeping in
view, the contents of FIR and prima facie material, if any, requiring no
proof. At such stage, the High Court cannot appreciate evidence nor
can it draw its own inferences from contents of FIR and material relied
on. It is further observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation, it becomes the
job of the Investigating Authority at such stage to probe and then of the
Court to examine questions once the charge-sheet is filed along with
such material as to how far and to what extent reliance can be placed
on such material.
9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after
considering the decisions of this Court in Bhajan Lal (Supra), it is held
by this Court that exercise of powers under Section 482 Cr.P.C. to
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
quash the proceedings is an exception and not a rule. It is further
observed that inherent jurisdiction under Section 482 Cr.P.C. though
wide is to be exercised sparingly, carefully and with caution, only when
such exercise is justified by tests specifically laid down in section itself.
It is further observed that appreciation of evidence is not permissible at
the stage of quashing of proceedings in exercise of powers under
Section 482 Cr.P.C. Similar view has been expressed by this Court in
the case of Arvind Khanna (Supra), Managipet (Supra) and in the case
of XYZ (Supra), referred to hereinabove.
9.3 Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, we are of the opinion that the High
Court has exceeded its jurisdiction in quashing the criminal
proceedings in exercise of powers under Section 482 Cr.P.C.
10 The High Court has failed to appreciate and consider the fact that
there are very serious triable issues/allegations which are required to
be gone into and considered at the time of trial. The High Court has lost
sight of crucial aspects which have emerged during the course of the
investigation. The High Court has failed to appreciate and consider the
fact that the document i.e. a joint notarized affidavit of Mamta Gupta -
Accused No.2 and Munni Devi under which according to Accused no.2 -
Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was
transferred to her itself is seriously disputed. It is required to be noted
that in the registered agreement to sell dated 27.10.2010, the sale
consideration is stated to be Rs.25 lakhs and with no reference to
payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing
over the possession. However, in the joint notarized affidavit of the
same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs
out of which Rs.25 lakhs is alleged to have been paid and there is a
reference to transfer of possession to Accused No.2. Whether Rs.25
lakhs has been paid or not the accused have to establish during the
trial, because the accused are relying upon the said document and
payment of Rs.25 lakhs as mentioned in the joint notarized affidavit
dated 27.10.2010. It is also required to be considered that the first
agreement to sell in which Rs.25 lakhs is stated to be sale consideration
and there is reference to the payment of Rs.10 lakhs by cheques. It is a
registered document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The High Court
has failed to notice and/or consider the material collected during the
investigation.
11. Now so far as the finding recorded by the High Court that no case is
made out for the offence under Section 406 IPC is concerned, it is to be
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
noted that the High Court itself has noted that the joint notarized
affidavit dated 27.10.2010 is seriously disputed, however as per the
High Court the same is required to be considered in the civil
proceedings. There the High Court has committed an error. Even the
High Court has failed to notice that another FIR has been lodged
against the accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarized affidavit. Even according
to the accused the possession was handed over to them. However, when
the payment of Rs.25 lakhs as mentioned in the joint notarized affidavit
is seriously disputed and even one of the cheques out of 5 cheques each
of Rs.2 lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can be said
to be entrustment of property. Therefore, at this stage to opine that no
case is made out for the offence under Section 406 IPC is premature
and the aforesaid aspect is to be considered during trial. It is also
required to be noted that the first suit was filed by Munni Devi and
thereafter subsequent suit came to be filed by the accused and that too
for permanent injunction only. Nothing is on record that any suit for
specific performance has been filed. Be that as it may, all the aforesaid
aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the
criminal proceedings by entering into the merits of the allegations as if
the High Court was exercising the appellate jurisdiction and/or
conducting the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under Section
482 Cr.P.C.
13. Even the High Court has erred in observing that original complaint
has no locus. The aforesaid observation is made on the premise that the
complainant has not placed on record the power of attorney along with
the counter filed before the High Court. However, when it is specifically
stated in the FIR that Munni Devi has executed the power of attorney
and thereafter the Investigating Officer has conducted the investigation
and has recorded the statement of the complainant, accused and the
independent witnesses, thereafter whether the complainant is having the
power of attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated above, the impugned
judgment and order passed by the High Court quashing the criminal
proceedings in exercise of powers under Section 482 Cr.P.C. is
unsustainable and the same deserves to be quashed and set aside and is
accordingly quashed and set aside. Now, the trial to be conducted and
proceeded further in accordance with law and on its own merits. It is
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
made clear that the observations made by this Court in the present
proceedings are to be treated to be confined to the proceedings under
Section 482 Cr.P.C. only and the trial Court to decide the case in
accordance with law and on its own merits and on the basis of the
evidence to be laid and without being influenced by any of the
observations made by us hereinabove. The present appeal is
accordingly allowed."
14. In view of the above, the submission of learned advocate
Mr.Gadhavi for the petitioner that this Court should find out absence of
purpose or intention from the FIR to believe that it is not a case of
robbery is unacceptable submission. FIR and subsequent proceedings
clearly states that accident took place in the same breath where firstly the
first informant was beaten with kick and fist blows and thereafter gunny
bags of millet and castor oil were looted by carrying them away in the
trolley of the tractor.
15. It was also argued by learned advocate for the petitioner that
necessary averments constituting the offence under Section 395 of the
IPC are missing in the FIR. It is also submitted that since the first
informant has not mentioned about the intention of causing hurt and
looted the goods in a same breath, the FIR needed to be quashed. Closely
looking at the FIR, as observed herein above, necessary ingredients of
Section 395 of IPC are revealed. Even, otherwise the FIR is not an
encylcopaedia which may disclose statement in detail in relating to the
offence. With profit, I may also refer to the decision in case of Supdt. of
Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 and in the case of
State of U.P. v. Naresh, (2011) 4 SCC 324, it is observed and held by this
Court that FIR is not an encyclopaedia, which must disclose all facts and
details relating to the offence reported. In paragraph 20 in the case of
Tapan Kumar Singh (supra), it is observed and held as under:
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
"20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details relating to the
offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence took
place. A first informant need not necessarily be an eyewitness so as to
be able to disclose in great detail all aspects of the offence committed."
16. I may also refer to the decision in case of M/S Neeharika,
Infrastructure Pvt. ... vs The State Of Maharashtra [AIR 2021 SC
1918] where the Hon'ble Apex Court in paragraph 33.1 to 33.18 has held
as under:
"23. 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 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).
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
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 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 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
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
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 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
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
NEUTRAL CITATION
R/CR.MA/6745/2017 ORDER DATED: 21/02/2025
undefined
misapplied."
17. In view of the learned advocate for the petitioner has failed to
make out a case for exercise of power under Section 482 of the Code of
Criminal Procedure. The case law cited at the bar by learned advocate for
the petitioners are on different facts of the case and therefore they are not
relevant and discussed herein.
18. For the foregoing reasons, the petition fails and is accordingly
dismissed. Interim-relief granted by the co-ordinate Bench of this Court
on 20/03/2017 is vacated. Request of the learned advocate for the
petitioners to extend the interim-relief for a period of six weeks to enable
the petitioners to approach the Higher forum is also rejected.
(J. C. DOSHI,J)
sompura
