Gujarat High Court
Leenaben Jagdishbhai Parmar vs State Of Gujarat on 25 February, 2025
NEUTRAL CITATION
R/SCR.A/2855/2025 ORDER DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2855 of 2025
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LEENABEN JAGDISHBHAI PARMAR & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
NISHITH P ACHARYA(9308) for the Applicant(s) No. 1,2
MR. CHINTAN DAVE, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 25/02/2025
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2. By this application under section 528 of the BNNS, 2023,
the applicants seek to invoke the inherent powers of this Court
praying for quashing of the first information report being
C.R.No.11191028240275 of 2024 registered before the
Vejalpur Police Station, Ahmedabad City for the offence
punishable under sections 323, 294(b) and 114 of the Indian
Penal Code and Section 135 of the Gujarat Police Act.
3. The gist of the facts of the present case is that on
09.05.2024 at around 10:00 O'clock in the night hours, when
the complainant along with his family were standing there near
the gate of Shyam Sunder Society, Block-33 to leave for some
work, and at that time, as the complainant was having some
cough, he spat there, and at that time, the accused were
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passing from there, and on seeing the complainant spitting,
the accused started making altercation with the complainant,
and then accused got enraged and started beating the
complainant, his wife, son and daughter. With this sort of
allegations, the impugned FIR has been filed.
4. Learned advocate Mr. Nishith Acharya appearing for the
applicant submits that the impugned FIR is nothing but a sheer
abuse of process of law as the same is a counterblast to the
FIR lodged by the applicant-accused. Learned advocate Mr.
Acharya further submits that first the applicant-accused lodged
the FIR against the opposite side clearly alleging therein that
when she along with her daughter Jeel were leaving from the
Society, the complainant herein spat on the side of the
applicant, for which, the applicant scolded him, upon which,
the complainant got instigated and then all the accused
persons gathered there and started beating the applicants.
However, after five days, i.e, on 15.05.2024, on the same set
of facts, with the concocted story, the complainant lodged a
false and fabricated complaint against the applicants just with
a view to settle the score. Learned advocate Mr. Acharya also
submits that originally the complaint was lodged by the
applicants against the accused persons named therein as they
were brutally beaten by the rival party, however, it is to be
noted that after five days of the registration of the complaint
by the applicants, the complainant also lodged the FIR against
the applicants alleging the incident mentioned in her complaint
on the very same date and time as mentioned by the
applicants in her complaint. Thus, it is crystal clear that the
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impugned FIR filed against the applicants is false and
fabricated one filed with a view to pressurize the applicants to
settle the dispute. Learned advocate Mr. Acharya also submits
that even if the entire case of the first informant is
accepted as true, none of the ingredients to constitute the
offence as alleged in the FIR, are spelt out and, therefore, the
continuation of the criminal proceedings against the applicant-
accused would be nothing, but an abuse of the process of law.
5. On the other hand, this application has been vehemently
opposed by Mr. Dave, the learned Additional Public Prosecutor
appearing for the respondent-State of Gujarat. Learned APP
Mr. Dave submits that the allegations levelled in the FIR are
clear and serious in nature. Learned APP Mr. Dave also submits
that there was a free fight between the rival parties, and both
the sides sustained injuries in the said fight. Learned APP Mr.
Dave submits that the investigation officer has collected
sufficient materials against the applicants, on the basis of
which, the investigating officer thought fit to file charge-sheet
against the applicants, and just because there are counter
complaints, the same cannot be made a ground for quashing
of the FIR as the trial is going on and the law would take its
own course at the end of the trial. Under the circumstances,
learned APP Mr. Dave prays that, therefore, at this stage, the
First Information Report should not be quashed and the trial
should be permitted to proceed further. Hence, the present
application deserved to be rejected.
6. Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
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only question that falls for my consideration is whether I should
quash the complaint.
7. It appears from the record and from the contents of both
the FIRs produced on record that there was a free fight took
place between the rival sides, wherein members of both the
parties sustained injuries, due to which, both the parties had
filed counter complaints. From the statements of the witnesses
and the Panchnama drawn by the investigating officer, it
appears that the applicant-accused was very much available at
the scene of offence, and there was a free fight taken place
between the rival sides. Just because there are counter
complaints, the applicants would not become entitle to get the
FIR quashed filed by the rival party. It is an undisputed fact
that there was a free fight between both the sides, in which,
members of both the sides have sustained injuries. The Court
should be loath in exercising powers under Section 482 of the
Cr.P.C. when the when the allegations made in the FIR prima
facie do disclose a commission of a cognizable offence. Such
powers should be exercised sparingly with utmost care and
caution.
8. In the aforesaid context, I would like to refer to and rely
upon the decision of the Hon'ble Apex Court in the case of M/s.
Neeharika Infrastructures Pvt. Ltd. vs. State of Maharashtra &
Ors., Criminal Appeal No.330 of 2021, decided on 13.04.2021,
wherein it has been observed thus;
"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
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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 482Cr.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 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
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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 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;
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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
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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."
9. Hence, looking to the peculiar facts and circumstances of
the present case and the materials placed on record as well as
the principle enunciated in the aforequoted judgment, I am of
the opinion that the allegations made in the FIR do disclose a
prima facie offence against the applicants, and the evidences
available on record needs to be examined during the course of
trial to establish the guilt or innocence of the applicants-
accused. Hence, I am not inclined to quash the impugned FIR
at this stage now and would like to permit the trial to go on to
reach to its logical conclusion.
10. In the result, this application fails and is hereby rejected.
Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
