Gujarat High Court
Patel Ashish Dhanjibhai vs State Of Gujarat on 21 March, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/3951/2022 ORDER DATED: 21/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3951 of 2022
==========================================================
PATEL ASHISH DHANJIBHAI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR DIPESH D SONI(9996) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR LB DABHI, PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 21/03/2022
ORAL ORDER
1. This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), for quashing and setting aside the impugned FIR, bearing No. 11206033220083 of 2022, registered with Unjha Police Station, District:
Mahesana, under Section 507 of the Indian Penal Code (in short, 'IPC').
2. Heard, learned Advcoate, Mr. Soni, appearing for the applicant and learned APP, Mr. Dabhi, for the Respondent-State.
3. Learned Advocate, Mr. Soni, submitted that the impugned FIR is nothing but the gross abuse of the process of the Court, wherein, the present applicant has been falsely implicated.
3.1 It was, further, submitted that even the Page 1 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022 R/CR.MA/3951/2022 ORDER DATED: 21/03/2022 ingredients of the offence alleged against the present applicant are, prima facie, not made out from the impugned FIR.
3.2 It was submitted that the offence punishable under Section 507 of the IPC is a non-cognizable offence and therefore, it is not open to the investigating agency / IO to register the FIR for the same.
3.3 It was submitted that there was no immediate threat given by the applicant to Respondent No.2-
original complainant.
3.4 It was also submitted that the impugned FIR is nothing but an armtwisting tactic on the part of Respondent No.2-original complainant.
3.5 In support of his submissions, learned Advocate, Mr. Soni, has placed relinace on the decision of the Apex Court in the case of 'STATE OF HARYANA & OTHERS VS. BHAJAN LAL AND OTHERS', reported in AIR 1992 SC 604, more particularly, Paragraph-108 thereof.
3.6 It was, therefore, prayed that the present application be allowed.
4. On the other hand, learned APP, Mr. Dabhi, strongly opposed this applicatioon and submitted that the State of Gujarat has already issued a Page 2 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022 R/CR.MA/3951/2022 ORDER DATED: 21/03/2022 notification, whereby, the offence punishable under Section 507 of the IPC is made a cognizable offence and therefore, the concerned investigating agency / IO has rightly lodged the impugned FIR under Section 507 of the IPC.
4.1 It was contended that in the impugned FIR, itself, Respondent No.2-original complainant has mentioned the cell phone number of the accuseed.
4.2 It was also submitted that there is also reference to the threat issued by the accused to Respondent No.2-complainant in the presence of one Kuldip Rameshbhai Patel, on whose cell phone the same were recorded.
4.3 Learned APP, Mr. Dabhi, therefore prayed that this Court may not exercise discretion in favour of the present applicant.
5. Having heard the learned Counsels for the parties and having perused the material on record, including the impugned FIR, it emerges that the impugned FIR is filed under Section 507 of the IPC, which has now been made a coginizable offence by the State of Gujarat by issuing a notification.
5.1 From the record, it is also revealed that, as per the allegations made in the impugned FIR, the applicant issued threat to Respondent No.2-original complainant in the presence of one Kuldip Rameshbhai Page 3 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022 R/CR.MA/3951/2022 ORDER DATED: 21/03/2022 Patel and the same was recorded on the cell phone of said Kuldipbhai. Thus, the offence punishable under Section 507 of the IPC, prima facie, is made out from the impugned FIR.
5.2 So far as the reliance placed on by learned Advcoate, Mr. Soni, on the observations made by the Apex Court in Paragraph-108 in the case of 'STATE OF HARYANA & OTHERS' (Supra) is concerned, the same reads as under:
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a serios of deicsions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we given 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 any precise, clearly defined and sufficiently channelised and infelixble guidelines or rigid formulae and to give an exhaustive list of myriad knds of cases wherein such power should be exercised.
1. Where the allegatins 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.Page 4 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022
R/CR.MA/3951/2022 ORDER DATED: 21/03/2022
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not dislcose a cognizable offence, justifyng and investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purivew of Section 155(2) of the Code.
3. Where the uncontroverted alelgations made in the FIR or complaint and the evidence collected in support of the same do not dislcose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and the 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 fo the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and / or where the proceedings i maliciously Page 5 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022 R/CR.MA/3951/2022 ORDER DATED: 21/03/2022 instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
5.3 Admittedly, the case of the present applicant does not fall in any of the categories mentioned herein above and hence, the same would render no assistance to the case of the applicant. Even otherwise, in view of the notification issued by the State of Gujarat, whereby, the offence punishable under Section 507 of the IPC is made a cognizable offence, it cannot be said that the concerned investigation agency or the IO has committed an error in registering the FIR.
6. For the foregoing reasons, this application fails and is REJECTED.
(VIPUL M. PANCHOLI, J) UMESH/-
Page 6 of 6 Downloaded on : Tue Mar 22 21:09:53 IST 2022