Gujarat High Court
Naresh Kadyan Son Of Shri Om Prakash ... vs State Of Gujarat on 2 May, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/11161/2020 ORDER DATED: 02/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11161 of 2020
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NARESH KADYAN SON OF SHRI OM PRAKASH KADYAN
Versus
STATE OF GUJARAT
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Appearance:
MR ASHUTOSH S DAVE(8865) for the Applicant(s) No. 1
MR JYOTINDRASINH J VALA(10975) for the Applicant(s) No. 1
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR VIJAY H PATEL(7361) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/05/2022
ORAL ORDER
1. Heard learned Advocate Mr. Ashutosh Dave on behalf of the petitioner, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1- State and learned Advocate Mr. Vijay H Patel on behalf of respondent no.2- original complainant.
2. By way of this petition the petitioner prays for quashing of FIR bearing C.R. No. - 11208051201148 of 2020 registered with B Division Police Station, Rajkot City on 15.06.2020 for offences punishable under Sections 342, 384, 506(2), 170 and 114 of the Indian Penal Code and all consequential proceedings arising therefrom.
3. The FIR inter alia alleges that the complainant was owner of a Circus named Great Golden Circus and whereas he was owning elephants, using them in the circus and whereas the complainant, on 12.06.2020, was transporting the elephants in Truck No. GJ-37- T -9758, from Ahmedabad Page 1 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 and whereas according to the complainant, the documentation for transporting the said animals were available with him. It is alleged that on 13.06.2020 at around 4.00 A.M. he had received a phone call from his son Joheb Khan, who had informed the complainant that the son had received a phone call at around 12.00 P.M. by one Ataullakhan, who had informed him that the truck concerned had been stopped near Bedi Chokdi, Rajkot and some person named Bhavin Patel who was identified himself as a Forest Officer had sought for the transit pass etc. with regard to the elephants in question and whereas it is alleged that the said person had demanded Rs. 2 lacs, and whereas failing payment of the amount, he had threatened that the elephants shall be deposited with the Forest Department. Further allegations of having given threats etc. is also mentioned. It appears that the persons who were travelling with the elephants had refused to give any money whereupon the said Bhavin had contacted his higher officer i.e. the present petitioner and had informed the said Ataullakhan that the present petitioner who is a superior officer and master trainer and had further pressurized the persons travelling with the elephants by saying that now instead of Rs. 2 lacs, Rs. 5 lacs will have to be given by the said persons. The son of the complainant had informed the complainant that he had instructed the said Ataullakhan not to give any money since they had all the valid permits and it appears according to the complaint that after some time the police and other persons from Animals Right Organization have reached there and had taken a truck with the elephants to the Forest Office and whereas it is alleged in the FIR that upon the complainant talking to the Forest Officer and showing the existence of regular permits, the truck was permitted to go to Jamnagar. Thus alleging allegation of extortion etc., the impugned FIR had been registered.
4. It appears that this Court had entertained the present petition to the extent of issuing notice only and whereas it appears that in the interregnum Page 2 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 the Investigating Officer, had filed the charge-sheet. The said charge-sheet is produced on record along with draft amendment. The same is granted. Amendment to be carried out by 10.06.2022.
5. Learned Advocate Mr. Ashutosh Dave on behalf of the petitioner challenges the impugned FIR by submitting that the FIR is nothing but an abuse of the process of law. Learned Advocate would submit that as such the present petitioner, is a wild life activist, and whereas he had made complaints against the present complainant hereinbefore also and it is on account of a grudge held by the complainant against the petitioner that the impugned FIR is filed. Learned advocate has also submitted that in fact later inquiry by the petitioner had also revealed that the truck was moving without permit. Learned Advocate would also submit that the statements along with the charge-sheet, belong to the employees of the complainant and whereas such employees, while they have confirmed the allegations as made in the FIR, according to learned Advocate what would be relevant to consider is statement of one Jagrutiba Sarvaiya, Police Sub Inspector, who according to the statement was present when the truck was intercepted and according to the said statement, the said Bhavin had neither demanded any money nor he had made any phone calls to the present complainant nor any enhanced demand of money had been made. Learned Advocate Mr. Dave relying upon the said statement would submit that when an independent person, has confirmed the fact of no demand having been made, with regard to the allegations of extortion, and whereas, since it also appears that the complainant, had an axe to grind against the present petitioner, therefore, the impugned FIR, being an abuse of the process of law, may be quashed by this Court.
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6. This application is vehemently opposed by learned Advocate Mr. Vijay Patel who would submit that as such the so-called earlier applications of the petitioner herein, has no bearing with regard to the present incident. Learned Advocate would submit that the complainant having made a very specific allegation that a demand of money in the nature of extortion, had been made and whereas since the complaint makes out such existence of cognizable offneces and since a charge-sheet has also been filed by the Investigating Officer, therefore this Court may not interfere at this stage.
7. Learned APP Ms. M.D. Mehta would submit that while the FIR had been filed, alleging offence of extortion, since the Investigating Officer, after investigation had found merit, in the allegations had filed a charge-sheet and whereas according to learned APP if there is no material, according to the petitioner, in the charge-sheet, which would connect him to the offence in question, then the proper course for the petitioner would be to file an application for discharge. As such learned APP would submit that no case for quashing of the FIR and investigation thereupon, is made out and hence this Court may not interfere in the present petition.
8. Heard learned Advocates for the parties who have not submitted anything else.
9. At the outset it would be required to be noted that the present petition is moved by a person who is a self styled 'National Commissioner for Animals.' The term National Commissioner, being used by the petitioner, is suggestive of the fact, that the petitioner, holds some very important designation as conferred by the Central Government. To a specific query put to the learned Advocate for the petitioner as to who had conferred the designation of National Commissioner for Animals upon the Page 4 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 petitioner, learned Advocate had no answer. Thus it prima facie appears that the petitioner is masquerading as an authority, or rather a Senior Official of the Central Government, for what purpose, only an investigation and subsequent trial may reveal. In any case prima faice to this Court it appears that such titles are being used by person normally to mislead. Be that as if may, the Court will now consider submission of the learned Advocates on its merits.
10. Insofar as the submissions of learned Advocate that the truck was being plyed without any permit in the considered opinion of this Court, the same would not make any difference to the facts of this case either way. The allegation is that the present petitioner had attempted to extort money from the complainant or his employees and whereas for the purpose of considering such a complaint, the fact of whether the truck was travelling without permit or not, would not have any bearing or relevance.
11. Furthermore, it appears to this Court that the fact of the incident i.e. the incident of the truck carrying the animals in question having been detained, is undeniable. It is also undeniable that the truck in question had been detained at the instance of one Bhavin. Such conclusions arrived by the Court, more particularly reading the statements of the witnesses as also reading the statement of the witness PSI, which is heavily relied upon by learned Advocate for the present petitioner. It appears before this Court that there are one set of statements, which support the allegation of extortion and whereas there is another statement which is diametrically opposite, which takes a contrary view. Insofar as the variance in the statements of witnesses are concerned, in the considered opinion of this Court, it would be only in the trial, after leading of evidence, that the truth with regard which of the two versions, is the correct version would made out. It would be too pre-mature for this Court, to conclude eitherway Page 5 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 merely on basis of the fact that witnesses who have given statement confirming the allegation of extortion being employees of the complainant or the statements taking a contrary view, being of a police official, that either of the versions would be correct.
12. At this stage, this Court is also of the conscious of the observation of the Hon'ble Apex Court in case of Central Bureau of Investigation (CBI) and Anr. Vs. Thommandru Hannah Vijayalakshmi alias T. H. Vijayalakshmi and Anr., reported in AIR 2021 SC 5041 that while exercising of jurisdiction under Section 482 of the Code of Criminal Procedure, this Court is not required to conduct a mini trial. Paragraph no. 41 of the said judgment being relevant for the present purpose is quoted hereinbelow for benefit:
"41 The judgment of a two Judge Bench of this Court in Gunmala Sales (P) Ltd. v. Anu Mehta makes it abundantly clear that the High Court does not conduct a mini-trial or a roving inquiry while exercising its powers under Section 482 of the CrPC. Justice Ranjana P Desai held:
"34.4. No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director."
This principle also applies squarely to the exercise of powers by a High Court under Article 226 of the Constitution while considering a writ petition for quashing an FIR. Further, in Page 6 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 numerous judgements of this Court it has been held that a court cannot conduct a mini-trial at the stage of framing of charges. Hence, doing so at the stage of considering a petition for quashing an FIR under Section 482 of the Cr.P.C., or Article 226 of the Constitution is obviously also impermissible. Therefore, we disapprove of the reasoning provided by the Telangana High Court in its impugned judgement dated 11 February 2020 for quashing the FIR."
13. As far as the statement of the PSI concerned, which has been heavily relied upon by learned Advocate for the petitioners, in the considered opinion of this Court the said statement, leaves much to be desired. The PSI concerned had made a statement that she had intercepted the truck in question at the request of the said Bhavin, who had informed her "that his persons have attempted to stop the truck but the truck driver was not stopping therefore he had sought for help from the police and the police had intercepted and stopped the truck." Furthermore the said PSI also states that after the truck had stopped, " Bhavinnbhai had inquired of the truck driver, Mahot and Cleaner of the truck as to whether they have any pass or permit and except for the same, the said Bhavin had not stated anything." It appears that the police officer, was not conscious of the impact of her statement. A Police Officer could not be heard to state that she had intercepted the truck at request of certain persons who had themselves tried to take law into their hands and had tried to stop the truck at some other place. A Police officer also cannot be heard to make a statement that she had permitted a civilian to question the truck drivers and other persons in the truck as to the existence of any pass or permit with the truck driver. Thus prima facie the statement by the PSI cannot be considered by this Court at this stage. It appears that it is in view of the questionable facts stated by the PSI, that even inspite of a contrary version, appearing on record that the Police Inspector concerned had though it appropriate to submit charge-sheet against the accused including the Page 7 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 petitioner before the Court concerned.
14. This Court further notes that insofar exercise of jurisdiction under Section 482 of Code of Criminal Procedure and under Article 226 of the Constitution of India, where an application is preferred praying for quashing of the complaint, the primary consideration, as per the decision of the Hon'ble Apex Court more particularly in recent decision in case of M/s Niharika Infrastructure vs. State of Maharashtra- 2021 SCC Online SC 315, that should weigh with the Court is that whether the allegations taken at its face value, reflect a prima facie case made out against the applicant. This Court is also conscious of the law laid down , at paragraph no. 57 of the said decision, where the Hon'ble Apex Court has stated the aspects which are required to be taken into consideration, while considering an application for quashing. Paragraph no. 57 is quoted hereinabove for benefit:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
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 cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence or any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
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;Page 8 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022
R/CR.MA/11161/2020 ORDER DATED: 02/05/2022
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity 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. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
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. During or 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 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; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to Page 9 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022 R/CR.MA/11161/2020 ORDER DATED: 02/05/2022 consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
15. Having regard to the law laid down by the Hon'ble Apex Court more particularly considering the present fact situation , from the said perspective, in the considered opinion of this Court, even a plain reading of the complaint or taking the allegations in the complaint at its face value, it appears that there is an allegation of having committed a cognizable offence, as made out against the present petitioner. Furthermore, in the considered opinion of this Court, the present is not such a case, that non- quashing of the impugned FIR, would lead to a miscarriage of justice. Rather in the considered opinion of this Court, interfering in FIRs of the present nature, may give an impetus to vigilante justice group, who under the guise of animal protection etc., take law into their own hands and engage in illegal activity like extortion etc. At this stage this Court cannot be oblivious of the self styled title given by the petitioner to himself which may be to mislead and misguide public and public servants alike to pressurize them to succumb to the illegal demands. Thus in the considered opinion of this Court, ends of justice would not be secured, if the impugned FIR is quashed by this Court and whereas it also does not appear that the FIR is an abuse of the process of law of the Court.
16. Having regard to the discussion reasoning and conclusions arrived at hereinabove in the considered opinion of this Court, present petition does not make out a case for interference. Hence the present petition stands rejected.
(NIKHIL S. KARIEL,J) NIRU Page 10 of 10 Downloaded on : Mon May 09 20:05:06 IST 2022