Gujarat High Court
Hiral @ Hiren Dhirubhai Korat vs State Of Gujarat on 16 January, 2025
NEUTRAL CITATION
R/SCR.A/190/2025 ORDER DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 190 of 2025
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HIRAL @ HIREN DHIRUBHAI KORAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HITESH B PRAJAPATI(13805) for the Applicant(s) No. 1
MR. SUMIT K PRAJAPATI(8867) for the Applicant(s) No. 1
MS. C.M. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/01/2025
ORAL ORDER
1. The present petition is filed for seeking the
following main reliefs:
"(A) xxx.
(B) YOUR LORDSHIPS may be pleased to issue appropriate
writ, order or direction, quashing and setting aside the FIR
being C.R. No. 11214020241125 of 2024 registered with
Kamrej Police Station, Dist.: Surat Rural qua the petitioner;
(C) YOUR LORDSHIPS pending hearing, admission and final
disposal of this petition, may be pleased to stay the further
proceedings of FIR being C.R. No. 11214020241125 of 2024
registered with Kamrej Police Station, Dist.: Surat Rural qua
the petitioner;
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(D) YOUR LORDSHIPS may be pleased to grant such other
and further reliefs as are deemed fit by this Hon'ble Court,
in the interest of justice;"
2. Brief facts of the case as per the case of the
present petitioner are as such that the first informant
states that the first informant is residing at the address
mentioned in the FIR and is having business of artificial
flower at ABC One Mall, Varachha, Surat. It is alleged
in the FIR that on 2.5.2024 at around 9:00 a.m., when
the first informant was returning from his shop, at that
time, two unknown person near Patti Road came on
motorcycle and stopped him and assaulted with iron
pipe. It is also alleged in the FIR that then after 4-5
unknown people came on two motor cycle and they also
started assaulting the first informant. It is also alleged
in the FIR that one accused person struck him on the
head and one other accused person gave blows on his
left elbow and knee. It is also alleged in the FIR that
one of the accused persons who was having revolver in
his hand, snatched gold chain of first informant and
threatened him and warned him to stay away from the
case of Hiren Dhiru Korat and Himmat Popatbhai Savaj.
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It is also alleged in the FIR that the said accused
person also threatened to the first informant that if the
first informant doesn't stay back from the case, he will
be done to death. It is also stated in the FIR that then
after the accused persons run away from the spot and
subsequently, the first informant had taken to the
hospital for treatment. It is also stated in the FIR that
the first informant is a witness in one of the case filed
by the Bhupendra Patel against the present applicant
and, therefore, the said attack was carried out to
pressurize the first informant to prevent from attending
court and therefore the FIR was registered.
2.1 Furthermore, pursuant to the registration of the
FIR, the present applicant apprehends his arrest, had
preferred an application for anticipatory bail before the
Court of Ld. District and Sessions Court, Surat being
Criminal Misc. Application No. 5179 of 2024, the said
bail application however the same was rejected by the
concerned trail court, Surat vide order dated 26.07.2024.
The applicant had then preferred an application for
anticipatory bail before this Court being Criminal Misc.
Application No. 15777 of 2024. The said anticipatory bail
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however was withdrawn vide order dated 30.09.2024.
Hence, this petition.
3. Heard Mr. R.R. Marshal, learned senior advocate
with Mr. Sumit Prajapati, learned advocate for the
petitioner, Mr. Dipak patel, learned advocate for the
respondent No.2 - complainant and Ms. C.M. Shah,
learned APP for the respondent - State.
4. Mr. R.R. Marshal, learned senior advocate with Mr.
Sumit Prajapati, learned advocate for the petitioner has
drawn my attention towards the allegations made in the
FIR whereby the role of the present petitioner as well as
one Himmatbhai Popatbhai Savaj is identical as, as per
the allegation in the FIR, both of them have sent six
unidentified persons to attack on the complainant, and
thereby, they attacked the complainant with Spade and
with Iron Rod and one of the accused has shown
revolver to the complainant and has threatened the
complainant by saying not to interfere in the case
between the present petitioner Hiren Dhiru Korat and
Himmat Popatbhai Savaj, otherwise, you will face
consequences. Thereafter, those six unidentified persons
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have looted golden chain and thereafter, the complainant
has been taken to the hospital by 108 Ambulance and
thereafter, the complaint has been filed. He has further
submitted that on bare reading of the complaint, it does
not inspire any confidence as presence of the present
petitioner is neither found on the place of incident nor
any other accused mentioned in the FIR as six
unidentified persons are caught by the police during the
course of investigation of the complaint, which is filed on
03.05.2024. He has also submitted that as such, the Co-
ordinate Bench of this Court has, vide order dated
12.06.2024 in Special Criminal Application No.6395 of
2024, allowed the consent quashing petition filed by the
co-accused - Himmat Popatbhai Savaj. Therefore also,
there is no reason to continue the proceeding qua the
present petitioner. He has further submitted that on bear
reading of the FIR, the police has also unable to find
out the accused, who has actually committed such loot
and assaulted to the complainant and in absence of that,
the proceeding against the present petitioner will amount
to abuse of process of law and, therefore, he has
submitted that continuation of the present proceeding
would amount to abuse of process of law as the
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complainant cannot use this complaint as armed twisting
technique, more particularly, when he has entered into
compromise with Himmat Popatbhai Savaj, who is having
similar role as per the FIR and, therefore, continuation
of the proceeding pursuant to the impugned FIR will
amount to harassment to the present petitioner as well
as an abuse of process of law. Hence, he has prayed for
interference of this Court.
5. Mr. Dipak patel, learned advocate for the
respondent No.2 - complainant has tendered copy of the
relevant documents whereby he has submitted that one
more complaint is filed by one Bhupendrabhai
Parshottambhai Pate on 11.11.2019 against the present
petitioner pursuant to fraud of garnet coin and pursuant
to that, charge is also framed and thereafter, the present
petitioner has entered into compromise with the
complainant in that FIR of the year 2019 whereby the
present complainant of present FIR has filed objection in
that FIR and has submitted before the Court that FIR
is not required to be quashed as he is also affected
party and, therefore, due to that incident, there is direct
enmity between the present complainant and present
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petitioner as the application for quashing of that FIR of
the year 2019 by way of consent quashing could not be
allowed due to intervention of the present complainant
in that FIR. He also submitted that prime facie, case is
also made out and merely, settlement with Himmat
Popatbhai Savaj, whereby his name is wrongly given,
otherwise, he has no connection with the FIR of the
year 2019 as he was never accused in those proceedings.
Therefore, the statement is arrived at between the
parties and complaint is quashed qua him and, therefore,
he has submitted that when the persons, who have
actually acted on the instructions of the present
petitioner and assaulted the present complainant are yet
not arrested, it is not proper to use discretion of this
Court in favour of the present petitioner as prima facie,
case is made out, which is required to be investigated
thoroughly.
6. Ms. C.M. Shah, learned APP for the respondent -
State has strongly opposed the submissions made at the
bar by learned senior advocate for the petitioner and has
tendered report received from Kamrej Police Station and
has submitted that earlier also, there are antecedents by
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way of FIR being C.R. No.10 of 1019 under Section 406,
409, 420, 120B and GPID Act against the present
petitioner. She has further submitted that the petitioner
has never co-operated with the process of investigation
and remained absconded and now, further action has
been taken pursuant to the application given by the
Police before the Court and warrant is issued under
Section 72 of the BNSS, 2023, the Investigating Officer
repeatedly visited the resident of the petitioner as well
as other places but he was not available or found and
neither has co-operated the Investigating Officer in any
manner. She has also submitted that considering the fact
that pursuant to the earlier FIR, the present incident
has occurred and, therefore, unless the involvement of
the present petitioner, such incident could not have been
taken place, merely non-arrest of the other accused
person, who have committed the offence, is not a good
ground to exercise discretion of this Court by quashing
the proceedings at this stage as investigation is still to
be progressed. She has further submitted that prima
facie, offence is made out under Sections 323, 325, 397,
504, 506(2) of the Indian Penal Code as well as Section
25(1)(b) of the Arms Act and Section 135 of the G.P.
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Act. Thought the presence of the petitioner is not found
at the place of the incident, but it cannot be said that
he has not sent some person on his behalf to assault
the present complainant and, therefore, the matter is
required thorough investigation. Considering the history
and direct nexus with the earlier incident as the
complainant has intervened in the earlier incident at the
time of petition filed by the present petitioner for
consent quashing, that is the root cause for the
threatening the present complainant by doing assault
with such deadly weapons including revolver by the
unidentified persons at the behest of the present
petitioner, and considering that the investigation is going
and, therefore, no interference is required to be called for
by this Court at this stage.
7. I have considered the rival submissions made at the
bar. Though it is true that there is no personal presence
of the present petitioner at the time of incident, but
considering the nature of the incident and considering
the nature of threats given at the behest of the present
petitioner, it clearly transpires that the petitioner can be
consider as mastermind of such incident, which has
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taken place. It also transpires from the record as
indicated by the learned advocate for the complainant
that in earlier complaint, the complainant has objected
the quashing of the FIR on the ground of consent given
by the original complainant and, therefore, the present
petitioner has believable cause to give threat through
some unidentified persons and also by assaulting the
complainant with a view to threaten him not to interfere
in that case. Furthermore, when the investigation is
going on and considering the papers available on the
record, whereby the complainant has taken treatment in
the hospital, and therefore, incident has taken place
merely the other accused person could not be arrested by
the Police due to some lackluster or erroneous approach
of the concerned investigating officer, is not a good
ground for interfering with the investigation at this
stage, more particularly, there is strong material
available on the record which indicates possibility of the
involvement of the present petitioner. Therefore, the FIR
is filed under the provisions of Sections 323, 325, 397,
504, 506(2) of the Indian Penal Code as well as Section
25(1)(b) of the Arms Act and Section 135 of the G.P.
Act, and unless fulfledged investigation is carried out, it
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is too pre-mature stage to exercise my discretion in
favour of the present petitioner, more particularly, there
is some believable material produced before this Court
which gives sufficient indication about the involvement of
the present petitioner in the alleged offence, which
requires further proper investigation by the concerned
Investigating Officer. Therefore, the present petition lacks
merit and therefore deserves to be dismissed considering
then 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."
8. Accordingly, the present petition is dismissed with
no order as to costs.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
