Gujarat High Court
Mukeshbhai @ Shamal Maganlal Marwadi vs State Of Gujarat on 23 January, 2025
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R/CR.MA/1335/2025 ORDER DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1335 of 2025
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MUKESHBHAI @ SHAMAL MAGANLAL MARWADI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. BK. RAJ(3794) for the Applicant(s) No. 1,2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/01/2025
ORAL ORDER
1. The present application is filed for the following
prayers:
"(7.1) May Your Lordships be please to pass an order under
Sec. 528 of BNSS for quashing of the impugned FIR No.
11207061240966/2024 dated 10.11.2024 registered before the
Shehera Police Station of Panchmahal District for the offence
punishable under section 309(4), 54 of BNS, 2023 and other
consequential proceedings arising out of this complaint qua
petitioner no.1 & 2.
(7.2) During the pendency of this petition for admission and
final hearing, through an Ex-parte ad-interim relief, May Your
Lordships be please to stay the further proceeding of the
impugned FIR No. 11207061240966/2024 dated 10.11.2024
registered before the Shehera Police Station of Panchmahal
District for the offence punishable under section 309(4), 54 of
BNS, 2023 and other consequential proceedings arising out of
this complaint qua petitioner.
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(7.3) May Your Lordships be please to grant any other relief
which may be fit and appropriate in the fact circumstances of
the case."
2. Heard learned advocate Mr. B.K.Raj for the applicants
and learned APP, Mr. Chintan Dave for the respondent -
State.
3. Learned advocate for the applicants has submitted that
on bare reading of the FIR, no believable offences are made
out against the present applicants. He has further submitted
that hire-purchase agreement is executed and the seizure of
the vehicle from the person who has availed the facility from
the Bank will not amount to any offence. He has further
submitted by relying on the judgment of the Hon'ble Apex
Court in the case of Charanjit Singh Chadha and Ors. Vs.
Sudhir Mehra reported in (2001) 7 SCC 417 and has
submitted that in para 17 of that judgment, it is observed
that in case of hire-purchase agreement the repossession of
goods as per the term of the agreement, may not amount to
any criminal offence. He has further submitted that in view
of the judgments of the Hon'ble Apex Court reported in 2013
6 SCC 740 as well as 2007 12 SCC 1, the Court can
exercise powers under Section 482 of the Cr.P.C. He has also
relied on the judgment in the case of State of Haryana Vs.
Bhajan Lal, reported in 1992 Supp (1) SCC 335 and
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submitted that no offences are made out from the alleged
incident whereby the present applicants have taken the
possession of the vehicle in question and therefore, he prays
that the continuation of the proceedings would amount to
abuse of process of law and the matter is therefore required
to be considered appropriately and the impugned FIR is
required to be quashed and set aside. Therefore, he prays for
passing of appropriate order in favour of the present
applicants.
4. Learned APP, Mr. Dave has strongly opposed the
contentions raised on behalf of the applicants by contending
that on bare reading of the FIR, it transpires that the
possession is taken over by the persons who have portrayed
themselves as seizures of the concerned finance company and
they have seized the Suzuki Motorcycle from the complainant
and there are eye-witnesses of the incident who have
supported the case of the complainant. He has further
submitted that prima facie investigation is required to be
carried out as offences are made out against the applicants
and therefore, no interference of this Court is required in the
present matter.
5. I have considered the rival submissions made at the
bar, I have also considered the provisions of Sections 309(4)
and 54 of the Bharatiya Nyaya Sanhita, 2023, which read as
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under:
"309(4). Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
54. Abettor present when offence is committed.
Whenever any person, who is absent would be liable to be
punished as an abettor, is present when the act or offence
for which he would be punishable in consequence of the
abetment is committed, he shall be deemed to have
committed such act or offence."
6. It is also required to be noted that from the tenor of
the FIR, it clearly transpires that the applicants have
intercepted the complainant when he was going with his
friend and thereafter, seized the vehicle, though the
complainant resisted to do so and while taking the
motorcycle, the applicants have threatened the complainant
that since you are not paying the installment of the vehicle,
we are seizing the vehicle as a seizure of the finance
company and if the complainant is approaching the
applicants, they will cause injury to the complainant by
beating him. These averments are also witnessed by the
friend of the complainant - Hiteshbhai and on bare reading
of the FIR, the offences are made out against the present
applicants. There is no quarrel about the factum that when
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the agreement is executed in favour of the finance company,
the finance company is entitled to recover the possession of
the vehicle if any default is committed pursuant to the
agreement by the borrower, however, that can be done in
accordance with law and not in the manner which was
followed in the present case.
7. Considering the above stated facts, prima facie,
ingredients are satisfied as the complainant was intercepted
without issuing any prior notice and it can be said that the
possession of the vehicle is taken forcefully without following
any process of law. Therefore, the judgments relied on by the
learned advocate for the applicants are not helpful to the
case of the present applicants.
7.1 Furthermore, it is needless to say that the Hon'ble
Apex Court has given specific directions in the case of
Neeharika Infrastructure Pvt.Ltd. V/s State of Maharashtra
reported in 2021 SCC Online SC 315, wherein, it is held in
paragraph 80 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
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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).
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;
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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;
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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;
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
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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 misapplied."
8. In view of the foregoing reasons, this Court is of the
opinion that the present application lacks merit and the same
is required to be dismissed.
9. Accordingly, the present application is dismissed.
(SANDEEP N. BHATT,J)
SLOCK BAROT
