Gujarat High Court
Mahendrasinh Bahadursinh Jadeja vs State Of Gujarat on 23 August, 2023
NEUTRAL CITATION
R/CR.MA/6700/2017 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6700 of 2017
With
R/SPECIAL CRIMINAL APPLICATION NO. 91 of 2017
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MAHENDRASINH BAHADURSINH JADEJA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
KSHITIJ M AMIN(7572) for the Applicant(s) No. 1,2
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/08/2023
COMMON ORAL ORDER
1. Rule. Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No. 6700 of 2017 is considered as leading matter and both the matters are decided together.
2. The present application is filed for seeking following reliefs:
"(B) This Hon'ble Court may be pleased to quash and set aside the FIR bearing I - C. R. No. 57 of 2016 registered with Panshina Police Station, Surendranagar, in the interest of justice;
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NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined OR (BB) This Hon'ble Court may be pleased to quash and set aside section 394 of the Indian Penal Code in FIR bearing IC. R. No. 57 of 2016 registered with Panshina Police Station, Surendranagar, in the interest of justice; (C) That, pending admission, hearing and till final disposal of the present application, this Hon'ble Court be pleased to grant stay as to further investigation/proceedings of the FIR bearing I - C. R. No. 57 of 2016, registered with Panshina Police Station, Surendranagar, in the interest of justice;" 3.1 Brief facts as per the case of the applicants in this application are as such that on 30.12.2016 the complainant was travelling from Rajkot to Palanpur in his car. On the way he stopped at a HP Petrol Pump near Limbdi Sugar Spice Hotel to fill diesel. After ascertaining that the petrol pump accepts payment by card, he had filled up diesel of Rs. 1500/-. However, no payment could be processed despite the card was swiped repeated times. Therefore, he had asked the petrol pump attendant to call his manager and the first informant Page 2 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined informed him that may be because the card had reached its limit of Rs. 24,000/- and therefore he offered to give Rs. 900/- and remaining Rs. 600/- would be given when he returns as he is working at Rajkot and goes to Palanpur every weekend.
3.2 It is further the case of the applicants in this application are as such that the owner of the petrol pump had asked the first informant to arrange for the money and therefore the first informant had called his brother from Palanpur. That, when the owner of the petrol pump had asked the first informant to hand over the keys of his car, the first informant had refused to oblige as his office papers were there in the car. That, two police officials from Panshina Police Station had reached there and therefore the first informant was surrounded by the employees of the petrol pump, its owner and the police officials and he was assaulted. It is further alleged that the first informant was forcefully made to sit in a car to be taken to Police Station that is when the first informant disclosed his identity. It is further alleged that despite disclosing his identity he was assaulted in his car. Hence, the impugned FIR is Page 3 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined lodged. It is further the case of the applicants in this application are as such that the applicants are innocent and have not committed any offence as alleged in the impugned FIR and the same is false, frivolous and is also filed with an ulterior motive of causing harassment to the applicants and other and the same amounts to abuse of the process of law. Hence, the present application is preferred.
4. Heard learned advocate Mr. Kshitij M. Amin for the applicants and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent No.1 - State. Though serviced to the respondent No.2 - complainant, he has chose not to appear before this Court to contest the case. This Court has given sufficient opportunity to him to appear, therefore, the matter is adjourned today for final disposal of the matter.
5.1 Learned advocate Mr. Kshitij M. Amin for the applicants has drawn my attention to the impugned F.I.R., which is filed under the provisions of Sections 323, 342, 294 and 114 of the Indian Penal Code by Page 4 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined narrating the incidents as alleged in the F.I.R. He has submitted that incident has essentially has taken place at the time when the complainant visited the petrol pump for getting the diesel filled up in his car. Thereafter, due to some technical problem, payment could not be proceeded. Therefore, he is not having sufficient case against the accused. He has further submitted that at that place, some heated exchanges have taken place and as per his complaint, the key of the car is taken by the petrol pump owner as well as some altercations have taken place between the complainant and petrol pump staffs. At that point of time, two police personnel have also visited the petrol pump. Therefore, the incident has occurred. Thought the complainant has given his identity as Judge of the Civil Court yet some ill-treatment is given by the accused persons, that is the sum and substance of the complaint. 5.2 He has further submitted that considering the fact that even on bare reading of impugned F.I.R., no ingredients under the provisions of Indian Penal Code is satisfied. He has further submitted that the complaint is filed with a view to harass the accused persons by Page 5 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined exaggerating the facts of the incident and by abusing the powers of an authority as a Civil Judge, such complaint is filed. He has further submitted that in view of the various judgments of the Hon'ble Apex Court as well as this Court, and in view of ingredients of robbery as alleged Section 392 in the complaint under the provisions of Section 394, looking to the averments made in the complaint, at the best, it can be said that there is some insistence from the petrol pump owner for payment of the amount of fuel. Therefore, the present complaint is nothing but an abuse of process of law. He has also drawn my attention to the complaint filed by one of the petrol pump owner on 31.12.2016, which is prior to the complaint filed by the present complainant, which is subsequent to that complaint. Therefore, he has submitted the same is filed by as a counterblast. 5.3 He has further submitted that such incident is occurred due to highhandedness of the complainant himself and by using his legal brain, he has tried to implicate the applicants in the impugned F.I.R. under Section 394 resulting to harassment of the applicants. Therefore, he has submitted that the impugned F.I.R. is Page 6 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined false and frivolous, which amounts to abuse of process of law. Therefore, this Court should exercise the powers under Section 482 of the Criminal Procedure Code by quashing the impugned F.I.R., in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604.
6. Though complaint is served and he has not contested the present application. Learned APP has contested this application by submitted that prima facie case is made out against the applicants and now the investigation is began. Therefore, this Court should not exercise the powers under Section 482 of the Criminal Procedure Code, which should be exercised very sparingly, and therefore, he has prayed to dismiss the present application.
7.1 I have considered the rival submissions made at the bar by the parties. I have considered the submissions made at the bar. It is fruitful to refer the provisions of Sections 323, 342, 294 and 114 of the Indian Penal Code, as under:
"Section 323 in The Indian Penal Code:- Page 7 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023
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323. Punishment for voluntarily causing hurt.--
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 342 in The Indian Penal Code:-
342. Punishment for wrongful confinement.--Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 294 in The Indian Penal Code:-
294. Obscene acts and songs.--Whoever, to the annoyance of others--
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Section 114 in The Indian Penal Code:-
114. Abettor present when offence is committed.--
Whenever any person, who is absent would be liable Page 8 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined 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." 7.2 Additionally, considering the fact that petrol pump owner has already lodged the complaint before the Police Station concerned on 31.12.2016 prior to the filing of impugned F.I.R. It transpires that prima facie, some incident has taken place due to non-payment of cost of diesel filled up in the complainant's car. Thereafter, on insistence of such payment, the complainant - car owner has given his identity as Civil Judge, has refused to pay the amount due to non-process of payment of his Debit/Credit Card. Thereafter, the complainant has said that he is having only Rs.900/- cash against the bill of Rs.1,500/-. Therefore, the owner and staff of petrol pump have insisted him for payment of remaining cost of diesel. Therefore, it seems that there is some altercation has taken place and due to that the complaint is filed. 7.3 In light of above and considering the averments of F.I.R., I have perused the papers of investigation, whereby nothing is found against the present applicants, Page 9 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined which remotely connects the accused persons in any offence under Section 394. Moreover, offence as alleged under Section 323 and 343 are also prima facie not made out from the averments made in the F.I.R. 7.4 On the contrary, the conduct of the complainant speaks volume that being a Civil Judge, he has travelled in the car during the night hours and when he went for filling up fuel at the petrol pump in his car, at that point of time, at the time of payment, some insistence was made by the present applicants. Therefore, it is fruitful to refer the judgment of this Court in the case of Dharmendrabhai Nandubhai Patel versus State of Gujarat reported in 2011 (0) AIJEL HC 225440, more specifically, paragraphs 19, 20 and 21 are relevant, as under:
19. In the present case, prima facie, I am of theview that the offences punishable under Sections 395 and 397 IPC are not sustainable. This is my prima facie opinion. The reason for this is obvious.
Case of the prosecution right from the beginning appears to be very specific and clear. It appears that the first informant, the injured, developed some intimacy with a girl named Gitaben Patel. As a result Page 10 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined of this intimacy they got married. The accused- applicant herein and the other co-accused who have been convicted by the trial Court are all very close relatives of Gitaben Patel. They did not approve the relations of the first informant, the injured with Gitaben and also got annoyed by the fact that the first informant got married with Gitaben without the consent of the family members of Gitaben. Due to this reason, it appears that on the fateful day of the incident a quarrel ensued, as a result of which the first informant was badly thrashed by the accused- applicant along with the other co-accused and this was with the sole intention of teaching him a lesson for taking the extreme step of getting married with Gitaben surreptitiously.
20. Now, in this background, it appears that the prosecution came forward with a case that when the first informant was being assaulted, at that point of time, the accused-applicant and the other co-accused snatched away some gold ornaments, a watch, mobile phone and some cash. It is the case of the prosecution that the first informant i.e. the injured and his witnesses were robbed of these articles on a gun point. Firstly, it deserves to be noted that the accused- pplicants have been acquitted from the charge under the Arms Act.
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21. Now, in this background of the entire prosecution case and the evidence on record, can it be said that the common object of the unlawful assembly was to commit an offence of dacoity. Can it be said that the motive behind the crime was commission of dacoity or whether the common object of the unlawful assembly was to thrash the first informant for the reason that he developed intimacy with Gitaben and got married with Gitaben surreptitiously without seeking any permission from the family members of Gitaben. This is the core issue which, prima facie, needs to be considered in the appeal. However, prima facie, I am of the view that without going much into appreciation of evidence the conviction under Sections 395 and 397 appears to be unsustainable. I am of the view that the Court owes a duty to consider, as to whether the accused has a fair chance of succeeding in the appeal or not ? I may consider my prima facie opinion in light of what has been explained by the Division Bench of this High Court so far as Section 390 of IPC is concerned. The Division Bench of this High Court, in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed as under:-
"Theft amounts to 'robbery' if, in order to the Page 12 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined 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. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted 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. The second necessary ingredient is that this must be 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 third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, Page 13 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:- " The words "for that end" in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances." In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows : "
Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. Page 14 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023
NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N.
372. Their Lordships put the question in this way: " It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time." The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, is as follows :-
"The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose Page 15 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined of carrying away the paddy, which had been harvested." Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases."
7.5 Further, it will also be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"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 Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 Page 16 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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. Page 17 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023
NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined (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 sec.156(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 institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an Page 18 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 7.6 In light of the above, I am of the view that the present complaint is nothing but an exaggerated version of the narration of incident and with a view to implicate the accused persons in the serious offence, the present complaint is filed. Moreover, considering the fact that prior complaint was already filed by the petrol pump owner then the present complaint can be considered as counterblast of that complaint, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Bhajan Lal (supra), this is a fit case where the Court should exercise the powers under Section 482 of the Criminal Procedure Code by quashing the impugned complaint for the respective applicants.
8. Accordingly, the present application is allowed.
9. The impugned FIR C.R. No.I 57 of 2016 registered with Panshina Police Station, Surendranagar as well as consequential proceedings arising pursuant to the impugned F.I.R. are hereby quashed and set aside qua Page 19 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023 NEUTRAL CITATION R/CR.MA/6700/2017 ORDER DATED: 23/08/2023 undefined the present applicants.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 20 of 20 Downloaded on : Sun Sep 17 02:14:39 IST 2023