Gujarat High Court
The Chikhli Education Society Through ... vs State Of Gujarat on 11 January, 2024
NEUTRAL CITATION
R/CR.MA/6416/2018 ORDER DATED: 11/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6416 of 2018
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THE CHIKHLI EDUCATION SOCIETY THROUGH CHETANBHAI
DHIRUBHAI DESAI & 18 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
for the Applicant(s) No. 6
MR ARPIT A KAPADIA(3974) for the Applicant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,3,4,5,7,8,9
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 : 11/01/2024
ORAL ORDER
1. The present application is filed for seeking the following main reliefs:
"(A) xxx.
(B) Your Lordships be pleased to quash and set aside the impugned complaint bearing Criminal Inquiry No. 19 of 2016 filed by respondent No.2 herein in the Court of learned Judicial Magistrate First Class, Chikhli, for the offence punishable under Sections 66 for the violation of Section 35 of the Bombay Public Trusts Act, 1950 and the process issued thereon by the Ld JMFC, Chikhli vide order dated Page 1 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 02/12/2016 (Annexure A);
(C) Pending hearing, admission and final hearing of this application, Your Lordships may be pleased to stay the proceedings of impugned complaint bearing Criminal Inquiry No.19 of 2016 filed by respondent No.2 herein in the Court of learned Judicial Magistrate First Class, Chikhli, for the offence punishable under Sections 66 for the violation of Section 35 of the Bombay Public Trusts Act, 1950 (Annexure A;
(D) Your Lordships be pleased to pass any other appropriate and just order/s in favour of the applicants;"
2. Brief facts of the case as per the applicants in this application are as such that the Chikhli Education Society is a Trust registered under the Trust Act. It is imparting the education and one of the oldest Trust in the Navsari District in the field of education. It is registered with the in the Office of the Charity Commissioner being Registration No.F2/Navsari. The Trust is running four education schools. The Trust has a school from Jr. Kg to 7 Standard, another School from 8 to 12, another education institution running the course of I.T.I and other educational institution imparting the Page 2 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined education in the field of computer education. There are 3500 students and there are 140 employees. It is further the case of the applicants in this application that the Trust is an owner of a land bearing Block No.878 Paiki situated in Samroli Gram Panchayat on a Bilimora- Vansda State Highway. The Managing Committee of the Chikhli Education Society passed the Resolution dated 15.05.2001 to construct 18 shops upon the said land for the purpose of sale. The resolution itself says that the Trust can have the financial benefit by selling the shops. It was resolved to get the necessary permission from the office of the Charity Commissioner and the authority is entrusted to the Trustee. It is further the case of the applicants in this application that the Chikhli Education Society made the application trough its authorized officer under Section 35 of the Act for the construction of 18 shops upon the land in question. The application states the approximate cost of construction is Rs.13,40,000/- for constructing 18 shops. The permission is sought for making the investment for construction in the office of the Charity Commissioner.
It is further the case of the applicants in this Page 3 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined application that the Joint Charity Commissioner, vide order dated 05.10.2001 has granted the permission to make an investment in the construction of 18 shops for Rs.13,14,000/- on the two fold conditions. Firstly, that the necessary permission under Section 36 is to be taken before creating any third party interest upon the said construction and secondly upon the construction, necessary change report is to be filed by the Assistant Charity Commissioner, Navsari. It is further the case of the applicants in this application that Chikhli Education Society passed the Resolution dated 01.12.2001 to get the permission from the Joint Charity Commissioner under Section 36 for the sale of eight shops. It is further the case of the applicants in this application that the Chikhli Education Society through its Trustee made the application to the Joint Charity Commissioner to grant the permission under Section 36 for the sale of eight shops. It is further the case of the applicants in this application that the Joint Charity Commissioner, Surat Division Surat, vide order dated 17.05.2005 has granted the permission for the sale of eight shops in exercise of power under Section 36 of the Act. The advertisement has been issued in the vernacular newspaper for the sale Page 4 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined of eight shops. The tender was opened before the Joint Charity Commissioner, Surat, on 6.03.2003. It is submitted that on opening the tender, the Trust received a deposit amount of Rs.11,62,201/-. It is submitted that the Joint Charity Commissioner Surat has passed the order dated 17.05.2005 and, thereafter, within a period of six months, the Trust has received Rs. 1,01,57,764/-. an amount. From the aforesaid amount so received, the trust has commenced the construction of another 10 shops.
It is further the case of the applicants in this application that the Chikhli Education Society has made the another application under Section 35 of the Act to get the permission for the another construction of 10 shops made at the cost of Rs 42,57,550/. It is further the case of the applicants in this application that before making construction, necessary permission has also been sought from the Taluka Panchayat. The Taluka Panchayat, vide order dated 25.01.2001, has granted the permission for the construction of the shops upon the land in question. It is further the case of the applicants in this application that the Trust has also filed the Page 5 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined Change Report before the Assistant Commissioner. Charity. It is further the case of the applicants in this application that the change report has been allowed by the learned Assistant Charity Commissioner, Navsari vide order dated 30.10.2007. The Trust has originally made the application under Section 35 for making investment in the construction of 18 shops at the cost of Rs. 13,14,000/- The said application was allowed by the learned Joint Charity Commissioner. However, due to delay in work caused, the objections were raised the cost of construction has been increased. The Trust has made the construction of 8 shops initially and sought permission of the Charity Commissioner for sale of eight shops. The Trust has received the tender deposit of Rs.11,62,201/- and sale consideration of Rs.1,01,57,764/-. Thereafter the construction of another 10 shops have commenced. Therefore the revised permission under Section 35 for the enhance investment has also been made in the year 2011. Due to escalation of price, the another investment of Rs.42,57,550/-is made. For that reason, the application under Section 35 has been made in the year 2011.
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NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined It is further the case of the applicants in this application that certain persons persons have made the application dated 15.04.2011 to the Assistant Charity Commissioner raising a complaint alleging the misappropriation of Rs.42,57,550/-. It appears that the learned Charity Commissioner, Gujarat State, has granted the permission to the Assistant Charity Commissioner, Navsari, to do legal procedure as per the law. It is further the case of the applicants in this application that the Joint Charity Commissioner, Surat Division, Surat, vide order dated 19.09.2016 has granted the sanction under Section 83 of the Act without application of mind. Thereafter, the respondent No.2 herein has filed the Criminal Complaint bearing Criminal Inquiry No.19 of 2016 before the learned Judicial Magistrate First Class, Chikhli, for the offence punishable under Sections 66 for the violation of Section 35 of the Act. Hence, this application is preferred.
3. Heard Mr. Arpit A. Kapadia, the learned counsel for the applicants and Mr. Dhawan Jayswal, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State.
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4. Mr. Arpit A. Kapadia, the learned counsel for the applicants has drawn my attention to the impugned complaint bearing Criminal Inquiry No.19 of 2016 filed by respondent No.2 herein in the Court of learned Judicial Magistrate First Class, Chikhli, for the offence punishable under Sections 66 for the violation of Section 35 of the Bombay Public Trusts Act, 1950 and the process issued thereon by the JMFC, Chikhli vide order dated 02.12.2016 and has submitted that Section 35 deals with power of Charity Commissioner to permit the trustee of a public trust to invest the money in any manner. Furthermore, he has submitted that the Trust has made the application in the year 2001 through its trustee to make an investment of Rs.13,14,000/- for the construction of 18 shops. Furthermore, he has submitted that aforesaid permission has been granted and the construction has commenced. Furthermore, he has submitted that thereafter, there has been some delay due to the objections raised by the certain people connected with the land in question. Furthermore, he has submitted that the Trust has immediately sought the permission of the Joint Charity Commissioner to sell the Page 8 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 8 shops. Furthermore, he has submitted that the Joint Charity Commissioner vide order dated 17.05.2005 has granted the permission for the sale of eight shops. Therefore, the Trust has received the deposit amount of Rs.11,62,201/- and has also received the sale proceeds of Rs.1,01,57,764/- and this sell proceed is out of only eight shops. Furthermore, he has submitted that still 10 shops are remaining with the Trust, and entire project is profitable one. Therefore, no criminality can be attributed to the present applicants. Furthermore, he has submitted that due to escalation of price, the another expenditure of Rs.42,57,550/- is made on the construction of residuary shops. Therefore, the Trust has made the application in the year 2011 under Section 35 of the Act to the Joint Charity Commissioner. Furthermore, he has submitted that the Trust is basically engaged in imparting the education and running schools and as the Trust owes a land and, therefore, in the year 2001, it was decided to construct the shop and raised money. Therefore, it has remained a profitable project for the trust. Furthermore, he has submitted that due to some delay in construction work, the price has been escalated for the construction of remaining ten shops. Hence, necessary application is Page 9 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined filed, which is still pending and, therefore, when the Charity Commissioner is yet to decide the application under Section 35 of the Act, the said complaint itself is premature. Furthermore, he has referred Section 66 of the Act and has submitted that many tenants are also suggested. Furthermore, he has submitted that in fact, the applicants have not caused any financial loss to the trust on the contrary the project remain profitable and moreover, now the permission is also sought for additional construction. Furthermore, he has submitted that continuation of proceedings against trustees of trust will certainly demoralize the persons such a present applicants from indulging any social welfare activities. Therefore, he prays that the present application may be allowed by exercising the powers under Section 482 of the Criminal Procedure Code, 1973 by giving proper relief as prayed in the present application as no fruitful purpose would be served in continuing with the proceedings of criminal complaint filed by the respondent No.2 in view of judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, .
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5. Mr. Dhawan Jayswal, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State, has presented that the criminal case is now registered following the criminal inquiry, specifically Criminal Inquiry No.19 of 2016. By an order dated 17.5.2023, the Judicial Magistrate First Class, Chikhli, directed the Registry to assign a Pakka Number to the said criminal case. He has further asserted that based on the earlier permission granted by the Charity Commissioner under Section 35 of the Act, which sanctioned the expenses for constructing 18 shops at an investment of Rs.13,14,000/-, a violation occurred. Construction was subsequently carried out without obtaining additional permission, incurring a cost of Rs.42,57,550/-, breaching the initially granted permission of Rs.13,14,000/-. This constitutes a clear violation of the Charity Commissioner's permission. Moreover, Mr. Jayswalm has contended that the mere pendency of permission for additional cost before the Charity Commissioner does not absolve the present applicants from liability under Section 66 of the Act. Additionally, he has highlighted that the concerned Charity Commissioner has not been impleaded as a party in the current proceeding, despite the permission being Page 11 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined granted by the Charity Commissioner. Therefore, he has argued that considering the material available on record, a prima facie case is established against the trust. Hence, he has urged the court to let the applicants face the proceedings of the criminal case before the concerned trial court in accordance with the law, notably, the criminal case is registered pursuant to the order passed in the criminal inquiry case, and the court should refrain from exercising inherent powers and the powers under Section 482 of the Cr.P.C. should be exercised very sparingly, as per the 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.
6.1 I have considered the rival arguments presented at the bar by the respective parties. I have also reviewed the provisions of Sections 36, 66, and 83 of the Bombay Public Trusts Act, 1950, as follows:
"36. Alienation of immovable property of public trust :
(1) Notwithstanding anything contained in the instrument of trust -
(a) no sale, exchange or gift of any immovable Page 12 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined property, and
(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of nonagricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust;
(c) if the Charity Commissioner is satisfied that in the interest of any public trust any immovable property thereof should be disposed of, he may, on application, authorise any trustee to dispose of such property subject to such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust.
(2) The Charity Commissioner may revoke the sanction given under clause (a) or clause (b) of subsection (1) or, the ground that such sanction was obtained by fraud or misrepresentation made to him or by concealing from the Charity Commissioner, facts material for the purpose of giving sanction; and direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation Page 13 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined (or such further period not exceeding in the aggregate one year as the Charity Commissioner may from time to time determine) as may be specified in the direction for the recovery of the property.
(3) No sanction shall be revoked under this section unless the person in whose favour such sanction has been made has been given a reasonable opportunity to show cause why the sanction should not be revoked.
(4) If, in the opinion of the Charity Commissioner, the trustee has failed to take effective steps within the period specified in sub ection (2), or it is not possible to recover the property with reasonable effort or expense, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay compensation to the trust equivalent to the advantage so assessed.
36A. Powers and duties of and restrictions on, trustees: (1) A trustee of every public trust shall administer the affairs of the trust and apply the funds and properties thereof for the purpose and objects of the trust in accordance with the terms of the trust, usage of the institution and lawful directions which the Charity Commissioner or Court may issue in respect thereof, and exercise the same care as a man of ordinary Page 14 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined prudence does when dealing with such affairs, funds or property, if they were his own. (2) The trustee shall, subject to the provisions of this Act and the instrument of trust, be entitled to exercise all the powers incidental to the prudent and beneficial management of the trust, and to do all things necessary for the due performance of the duties imposed on him. (3) No trustee shall borrow moneys (whether by way of mortgage or otherwise) for the purpose of or on behalf of the trust of which he is a trustee, except with the previous sanction of the Charity Commissioner, and subject to such conditions and limitations as may be imposed by him in the interest or protection of the trust. (4) No trustee shall borrow money for his own use from any property of the public trust of which he is a trustee. Provided that, in the case of trustee who makes a gift of debentures or any deposit in his business or industry the trustee shall not be deemed to have borrowed from the trust for his own use 36B. Register of moveable and immovable properties : (1) A public trust shall prepare and maintain a register of all moveable and immovable properties (not being property of a trifling value) of such trust in such form or forms giving all such information as may be prescribed by the Charity Commissioner. (2) Such Page 15 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined register shall show the jewels, gold, silver, precious stones, vessels and utensils and all other moveable property belonging to the trust with their description, weight and estimated value. (3) Such register shall be prepared within three months from the expiry of the accounting year after the commencement of the Bombay Public Trust (Amendment) Act, 1970, (4) Such register shall be signed by all the trustees or by any person duly authorised by trustees in this behalf after verifying its correctness, and shall be made available to the auditor for the purpose of auditing if the accounts are required to be audited under the provisions of this Act. Where the accounts are not required to be audited, the trustees shall file a copy of such register duly signed and verified, with the Deputy or Assistant Charity Commissioner of the region. (5) The auditor shall mention in the audit report whether such register is properly maintained or not, and the defects or inaccuracies, if any, in the said register and the trustees shall comply with the suggestions made by the auditor and rectify the defects or inaccuracies mentioned in the audit report within a period of three months from the date on which the report is sent to the trustees. (6) Every year within three months from the date of balancing the accounts, the trustee or any person authorised by him shall scrutinize such register, and shall bring it uptodate by showing alterations, Page 16 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined commissions or additions to the same, and such changes shall be reported to the Deputy or Assistant Charity Commissioner in the manner provided in section 22.
66. Penalty:
Whoever contravenes any provision of any of the sections mentioned in the first column of the following table shall, on conviction, for each such offence be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table. Explanation : The entries in the second column of the said table headed "subject " are not intended as the definitions of offences described in the section mentioned in the first column or even as abstracts of these section, but are inserted merely as reference to the subject of the sections, the numbers of which are given in the first column :
Section Subject Fine which may
be imposed
Section 18, sub- Duty of trustee to make Rs. 1,000 section (1) and an application to Deputy 4 or Assistant Charity Commissioner for registration of public trust within time Section 18, sub- Duty of trustee to sent Rs. 200 section (7) memoranda of moveable property to certain officers and authorities within time Page 17 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined Section 22 Failure to report a Rs. 1000 change Section 22B Failure to make an Rs. 500 application within the time provided for Section 22C Failure to sent Rs.100 memoranda with in the time provided for Section 29 Duty of an executor to Rs. 1000 apply for registration of a public trust within the time provided for Section 32 Duty to keep regular Rs. 1000 accounts Section 35 Failure or omission to Rs. 1000 invest money in public securities Section 41 A Failure without Rs. 2000 reasonable cause to comply with any directions issued under that section Section 59 Failure to pay Rs. 1000 contribution under section 58 by a trustee (other than Charity Commissioner) or by a persons charging or collecting dharmada
83. Previous sanction of Charity Commissioner necessary for prosecution : No prosecution for an offence punishable under this Act, shall be instituted without the previous sanction of the Charity Commissioner."
6.2 It is revealed that the trust initially obtained Page 18 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined permission for the construction of 18 shops. In the year 2001, the Joint Charity Commissioner granted permission for an investment of Rs.13,14,000. Subsequently, the trust constructed eight shops, sold them, and earned income exceeding Rs.1 crore. Ten shops are still pending construction. It transpires that there was a delay in constructing the shops due to objections raised by interested parties in the vicinity. Consequently, the construction costs for the remaining shops escalated. The trust sought further permission for the additional expenditure of Rs.42,57,550, which was incurred without prior permission or in addition to the permission granted in 2001. In the year 2011, another application was filed under Section 35 of the Act to seek permission for the amount already spent. Following this, a criminal complaint was filed, naming the trust and trustees. It transpires that a criminal inquiry case was registered, and prior to that, permission was sought from the Joint Charity Commissioner in Prosecution Case No.83/4/2013, granted under Section 83 of the Act. It appears from the record that, while granting permission under Section 83, the Joint Charity Commissioner noted the lack of evidence indicating that a breach of the provisions of Page 19 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined Section 35 was not established. No documentary evidence was produced by the trustees or trust. Therefore, the Charity Commissioner has rightly permitted the prosecution against the trust and trustees, as they spent over three times the amount than sanctioned without obtaining prior permission.
6.3 Additionally, in such eventuality, the concerned authority may not permit the aspect of permission. The provisions of the Bombay Public Trusts Act, 1950, must be considered by keeping in mind its object, and it should be noted that the persons handling the affairs of the trust must act in accordance with the law and as per the necessary procedures prescribed under the law.
In this case, there is a clear breach of Section 35 of the Act, evident from the material available on the record. 6.4 Further, in the 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:
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NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined "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 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 Page 21 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 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;
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;Page 22 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024
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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 Page 23 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 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 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 Page 24 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 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 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 Page 25 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined 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."
6.5 In light of above discussions, I found no valid reason to interfere with the process issued by the concerned trial court, which is now registered as criminal case and proceedings are also going on. Let the proceeding of criminal case, which is earlier registered as Criminal Inquiry No.19 of 2016, be proceeded further in accordance with law by giving proper opportunities to the parties to lead their respective evidences available under Page 26 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024 NEUTRAL CITATION R/CR.MA/6416/2018 ORDER DATED: 11/01/2024 undefined the law, and shall decide the same in accordance with law, as expeditiously as possible, preferably on or before 31.12.2024 as the said proceedings are pending since the year 2016.
7. In view of the above, the present application is dismissed. Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 27 of 27 Downloaded on : Thu Jan 11 21:10:00 IST 2024