Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 907 (GUJ)

Mahendrabhai Dayabhai Patel v. State Of Gujarat

2023-08-01

J.C.DOSHI

body2023
JUDGMENT : 1. Heard learned advocate Mr. Riddhesh Trivedi for the petitioners and learned APP Ms. Asmita Patel for the respondent State. 2. Rule is served to respondent No.2, but he has chosen not to appear. 3. The petitioners have invoked jurisdiction u/s 482 of the Code of Criminal Procedure to quell the FIR being I – C.R. No.33 of 2015 registered with Dhansura Police Station for the offences punishable u/s 143, 323, 294(B), 506(2), 427 of the IPC. 4. The facts which can be gathered that the petitioners are the partners of the partnership firm Jagdip Engineering having business of fabrication work as per the need and requirement of the customer. The complainant is in the business of cold storage in the name and style of Jay Gurudev Agro Products at Vadagam, Dhansura. The petitioners were contacted by the complainant for construction of cold storage and fabrication work and said work was entrusted to the petitioners by oral contract. The work was completed. The bill was tendered by the petitioners. According to the petitioners, the original accused did not pay heed to clear the amount of the petitioners though several reminders were made, but the same turned into futile exercise. Since the complainant was not receiving the call, the petitioners went to Jay Gurudev Agro Products on 1.6.2015, but found with shock and surprise that the complainant denied to pay the amount of the bill and started abusing the present petitioners and warned not to enter into the premises and demand money with displaying intent that he shall not pay any amount. Therefore, the petitioners approached Dhansura Police Station to lodge the complaint against the complainant, but it could not be registered. The petitioners alleges that the complainant was powerful and influential person. Meanwhile, civil litigation started for recovery of the amount. In the background of these facts, the complainant filed impugned FIR before Dhansura Police Station on 1.6.2015 alleging that the petitioners came to the business premises of the complainant and spoken filth and abusive language to the son of the complainant. The petitioners were aggravated or exited, and out of such aggravation, they were speaking anything,Not only that, the son of the complainant was given kick and fist blow. Then the petitioners have passed with a threat of life to the complainant. 5. The petitioners were aggravated or exited, and out of such aggravation, they were speaking anything,Not only that, the son of the complainant was given kick and fist blow. Then the petitioners have passed with a threat of life to the complainant. 5. The petitioners approached this Court by way of this petition seeking quashment of the impugned FIR u/s 482 of the Code of Criminal Procedure. 6. Learned advocate Mr. Riddhesh Trivedi for the petitioners would assail the FIR on two grounds. Firstly, he would submit that bare reading of the FIR would not indicate the ingredients of offences alleged in the FIR. He would further submit that no injury certificate is collected nor the complainant showed that on what part of the body, the son of the complainant was given kick and fist blow. He would further submit that the complainant alleges that the petitioners have spoken filthy and abusive language on 1.6.2015. However, the FIR came to be lodged on 6.7.2015 i.e. almost after one month, without any reason for delay. This aspect assumes significance on the ground that one of the petitioners, namely, Mahendrabhai Patel had filed written complaint before Dehgam Police Station alleging misbehaviour of the complainant on 4.6.2015. Thus, the impugned FIR is counterblast to the said complaint. He would further submit that meanwhile, between the parties, civil proceedings also materialized and pending for disposal. He therefore, would submit that the FIR on bare face is absurd and improbable and cannot be allowed to run. Upon these submissions, he prays to allow this petition. 7. As stated earlier, none remained present for the complainant. 8. Learned APP Ms. Asmita Patel controverting the submission of learned advocate for the petitioners would submit that the FIR indicates kick and fist blows given to the son of the complainant. It further indicates that some third parties were present and they came to help and saved the son of the complainant. In that circumstances, prima facie case is made out for the offences alleged in the FIR. She would further submit that looking to the averments made in the FIR, the investigation, filing of charge sheet as well as trial has to be allowed, so that the allegations can be justified. This submission is canvassed to dismiss this petition. 9. In that circumstances, prima facie case is made out for the offences alleged in the FIR. She would further submit that looking to the averments made in the FIR, the investigation, filing of charge sheet as well as trial has to be allowed, so that the allegations can be justified. This submission is canvassed to dismiss this petition. 9. At the outset, it is apt to refer the law laid down by the Hon’ble Apex Court in case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604 . The relevant para reads as under:- “In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. In the case of Dinesh Dutt Joshi vs. State of Rajasthan, reported in (2001) 8 SCC 570 , while dealing with the inherent powers of the High Court, the Supreme Court has observed thus; "The principle embodied in Section is based upon the maxim: Quando lex aliquid alicuiconcedit, concederevidetur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedureal law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases. The principle embodied in Section is based upon the maxim: Quando lex aliquid alicuiconcedit, concedere videtur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedureal law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases." 11. With profit, I may also refer to the observations of the Hon’ble Apex Court in case of G. Sagar vs. State of U.P., reported in (2000) 2 SCC 636 , the observation of the Hon’ble Apex Court is as follows; "Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 12. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 12. The Supreme Court in the case of Rishipal Singh vs. State of U.P., & Anr., reported in (2014) 7 SCC 215 , has very succinctly discussed the position of law so far as quashing of the criminal proceedings is concerned. The Apex Court observed thus; "10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice". A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C. 11. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd and Others 2000 (3) SCC 269 , has discussed at length about the scope and ambit while exercising power under Section 482 Cr.P.C. and how cautious and careful the approach of the Courts should be. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd and Others 2000 (3) SCC 269 , has discussed at length about the scope and ambit while exercising power under Section 482 Cr.P.C. and how cautious and careful the approach of the Courts should be. We deem it apt to extract the relevant portion from that judgement, which reads: "Exercise of jurisdiction under inherent power as envisaged in Section 482 of the Code to have the complaint or the charge sheet quashed is an exception rather than rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution with the lodgement of First Information Report. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the fact of it does not constitute or disclose any offence alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situations as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount". 12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC 122 . These principles or the guidelines were reiterated by this Court in (1) Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC 122 . This Court in Zandu Pharmaceuticals Ltd., observed that: "The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact." 13. The contention of learned advocate Mr. Trivedi for the petitioners is that this is a counterblast FIR. It got some importance reading Annexure B that the petitioners have given the complainant on 4.6.2015 alleging the offence u/s 406, 420 of the IPC against the complainant and some other persons. Much prior to impugned FIR, Civil proceedings are also pending. Thus, what prima facie appears is that the civil proceedings are given colour of criminal proceedings. 14. It seems that the dispute which is essentially of civil nature has been given cloak of a criminal offence. Much prior to impugned FIR, Civil proceedings are also pending. Thus, what prima facie appears is that the civil proceedings are given colour of criminal proceedings. 14. It seems that the dispute which is essentially of civil nature has been given cloak of a criminal offence. The shortcut remedy thus, is not permissible. The ball of criminality in this given facts and circumstances cannot be permitted to roll on further. The bare perusal of the FIR indicates and demands the exercise of powers u/s 482 of the Code of Criminal Procedure. The contention of the FIR even if remained uncontroverted, it appears to be truly improbable and absurd. Thus, the vindictiveness, which has been propagated by way of impugned FIR at the behest of the complainant cannot be allowed to be vented. 15. For the foregoing reasons, present petition is allowed and FIR being I – C.R. No.33 of 2015 registered with Dhansura Police Station and all other consequential proceedings arising therefrom are hereby quashed and set aside. Rule discharged.