Gujarat High Court
Ishwar Dandumal Hemnani vs State Of Gujarat on 2 August, 2023
NEUTRAL CITATION
R/CR.MA/20271/2017 ORDER DATED: 02/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20271 of 2017
==========================================================
ISHWAR DANDUMAL HEMNANI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR NL RAMNANI(2400) for the Applicant(s) No. 1
MR. HARMISH K SHAH(2438) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/08/2023
ORAL ORDER
1. The present application is filed for seeking following main reliefs:
"A. Your Lordships may be pleased to admit this petition.
B. Your Lordships may be allow this petition and quash the impugned FIR at Annexure-A registered with Maninagar Police station at I-CR. No.91 of 2017 for the offences punishable under section 387 and 506 of the Indian Penal Code.
C. Pending hearing and final disposal of the present petition, Your Lordship be pleased to stay further Page 1 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined proceedings/ investing of the impugned FIR registered with Maninagar Police station at I- CR. No.91 of 2017."
2. Brief facts of the case as per the case of the applicant in this application are as such that in the year 1999, the GIDC, Gandhinagar allotted a plot No.5/A, GIDC, Bhat Village, Gandhinagar to one Dipla Hotel Pvt. Ltd. In the year 202, the said plot was not developed and therefore the GIDC took back the possession of the said plot. In the year 2006, action of the GIDC was challenged before the Hon'ble High Court, but the Hon'ble Court dismissed the writ aplication filed by the Dipla Hotel Pvt. Ltd. In the year 2007, LPA No.1030/07 was preferred by the Dipla Hotel Pvt. Ltd., During the pendency of the LPA, matter was settled out of court between GIDC and Dipla Hotel Pvt. Ltd., and possession of the plot was given back by GIDC. Pursuant to this LPA No.1030/2007 came to be withdrawn. Even after this, the said plot was not developed and the same was used by sell and purchase and huge money was in the form of appreciation of land price was made by the owners of Dipla Hotel Pvt. Ltd., by engaging themselves in various irregularities. On 25.7.2016, the applicant Page 2 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined brought to the notice such irregularities to GIDC, but GIDC did not take any action. It is further the case of the applicant in this application that on 17.01.2017, this Hon'ble Court passed an order in SCA No.21361/2016 filed by the applicant and directed the GIDC to look into the representation dated 25.07.2016 of the applicant. On 02.02.2017, the applicant made another representation to the GIDC along-with a copy of order dated 17.01.2017. On 18.02.2017, the GIDC terminated the lease agreement of Dipla Hotel Pvt. Ltd. On 28.02.2017, the Dipla Hotel Pvt. Ltd., of which respondent No.2 is a major share holder, filed a writ aplication against the order dated 18.02.2017 being SCA No.5113/2017. On 16.04.2017, the applicant filed Civil Application No. 5529/2017 in SCA No. 5113/2017 seeking permission to be joined as party respondent. The matter is pending before the Hon'ble Court. Furthermore, the company of the applicant herein namely Super Bakers (1) Ltd., had entered into MOU in respect of M/s. Meena Plaza Hotels, Bhat village, Gandhinagar and had paid a sum of Rs.1 crore to one Mr. Pitamber Manglani who happens to be partner of the respondent No.2. Said Mr. Manglani, after taking huge amount of Rs.1 crore from the applicant, tried to Page 3 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined sell the said property to some third party. The applicant raised his objection and also filed various litigations in different courts including this Hon'ble Court and as such number of litigations are pending. Since the respondent No.2 and his business partner namely Mr. Pitamber Manglani developed grudge against the present applicant, respondent No.2 filed a false complaint of extortion and threatening against the applicant. Hence the present application is preferred.
3. Heard learned counsel Mr. N.L. Ramnani, representing the applicant, Mr. R.R. Marshall assisted by Mr. Harmish K. Shah, learned counsel, representing the respondent No.2 - complainant and Mr. Soaham Joshi, learned Additional Public Prosecutor (APP), representing the respondent No.1 - State.
4.1 Learned counsel, Mr. N.L. Ramnani, representing the applicant, has drawn the attention of this Court to the averments made in the impugned F.I.R. and the date of the complaint. According to his submission, the complaint was filed on 10.7.2017, and the date of the incident is mentioned in the complaint as 4.11.2016. The complaint Page 4 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined is filed under Section 387 and 506 of the Indian Penal Code. Furthermore, he contends that the reason behind filing such a complaint is that he, being a whistle- blower, made a representation dated 25.7.2016 before the Authority of Gujarat Industrial Development Corporation regarding irregularities in Gandhinagar related to the G.I.D.C. Scheme. Pursuant to that, G.I.D.C., through an order dated 18.2.2017, terminated the license agreement of M/s Dipla Hotel Private Limited. The complainant asserts that they have a shareholder's interest in the property and in the aforementioned company. It is revealed that the complainant challenged the order through Special Civil Application No.5113 of 2017, in which the present applicant was impleaded. 4.2 Additionally, he contends that the present applicant filed Special Criminal Application No.4079 of 2017 and 4080 of 2017, resulting in this Court issuing a rule. The present complaint was filed after receiving a copy of the rule. Thus, he argues that this complaint constitutes an abuse of the process of law, filed with the intent to settle a score and harass the present applicant, who resides in Hyderabad. The complaint is also filed after Page 5 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined much delay without providing any reason for such a delay. Relying on the judgment parameters of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 and the judgment of Delhi High Court in the case of Shiv Kumar & Anr. versus State of N.C.T. of Delhi & Anr. in Criminal Misc. Application No.5860 of 2023 dated 3.7.2023, wherein it is specifically stated that the disputes essentially between the parties are of a civil nature, which are being attempted to be converted into a criminal case. Therefore, this is a suitable case for the Court to exercise its powers under Section 482 of the Criminal Procedure Code, 1973.
5.1 On the contrary, learned senior counsel Mr. R.R. Marshall, assisted by Mr. Harmish K. Shah, learned counsel, representing the respondent No.2 - complainant, has submitted that the applicant was released on bail following the impugned F.I.R. and that initial investigation took place to some extent. However, due to the interim relief granted by this Court vide order dated 4.9.2017, which has been extended over time, it appears that further investigation would not proceed and has Page 6 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined reached its logical end.
5.2 Nevertheless, he argues that upon bare reading the complaint, the allegations made therein require investigation. If the Investigating Officer finds that the offense is substantiated after the investigation, appropriate action can be taken. The Investigating Officer also has the option to file a final report summarily if the allegations in the F.I.R. are found baseless. Given the contents of the F.I.R., when there is a prima facie indication of an offense by the applicant, it is not appropriate to halt the investigative process that was already delayed for about 6 years. He further highlights the contents of the affidavit-in-reply. Therefore, he requests the dismissal of this application and the vacation of the interim relief. He argues that the powers under Section 482 of the Criminal Procedure Code, 1973, should not be exercised by this Court, and it should be exercised very sparingly. In the present case, where there is a prima facie indication of an offense or to prevent an abuse of the legal process, it can be argued that a prima facie offense is made out.
Page 7 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined
6. Mr. Soaham Joshi, learned Additional Public Prosecutor (APP), representing the respondent No.1 - State, has submitted that since this Court granted interim relief, the investigation should not proceed further. However, he points out from the available record that investigation had taken place until the interim relief was granted by this Court. He notes certain aspects that establish a relationship between the applicant and respondent No.2. Based on witness statements, it appears that the statements support the complainant's assertions in the impugned F.I.R. Therefore, he contends that the necessary procedure requires further investigation, including call details and seeking opinion from the FSL regarding the details of the C.D. Further, he prays that prima facie materials indicate the genuineness of the F.I.R., the interim relief granted in the present application should be revoked. The powers under Section 482 of the Criminal Procedure Code, 1973 should not be exercised in this situation.
7.1 I have heard learned advocates for the respective parties. I have also considered the rival submissions made at the bar. I have also perused the papers of investigation.
Page 8 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined 7.2 Based on the aforementioned considerations, it cannot be definitively concluded that prima facie, the F.I.R. is devoid of accurate details or lacks authenticity. On a bare reading of the F.I.R., it becomes evident that offense has been made out. Conversely, the very point upon which the applicant relies to support their argument also necessitates a review of the applicant's standing to raise such a dispute before the relevant Authority. This perspective should also be taken into account when assessing the content of the F.I.R. It appears that the applicant may have attempted to exploit personal relations with the complainant to unjustly benefit from voicing these grievances before the Authority. While the concerned Authority initially believed the efforts made by the present applicant, leading to the termination of the license agreement, it is possible that, under the guise of such actions, the applicant engaged in activities that contravene the law. This could have prompted the complainant to file the present complaint with the Authority. Consequently, it is premature to conclude, without further investigation, that the impugned F.I.R. was lodged solely to harass the Page 9 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined applicant, who is originally a resident of Hyderabad. 7.3 Additionally, it is pertinent to consider that, as a resident of Hyderabad, the applicant has no inherent interest in intervening in activities taking place in Gandhinagar. Even if the applicant is regarded as a whistle-blower, they should not exploit the situation inappropriately. Therefore, all these facets demand a thoughtful evaluation, and the suspension of the investigation following the complainant's allegations indicates prima facie evidence of the alleged offense as outlined in the F.I.R. The ingredients of Sections 387 and 507 of the Indian Penal Code also seem to be prima facie satisfied, as follows:
"Section 387 in The Indian Penal Code:-
387. Putting person in fear of death or of grievous hurt, in order to commit extortion.--Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Page 10 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined Section 507 in The Indian Penal Code:-
507. Criminal intimidation by an anonymous communication.--Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section."
7.4 In light of the aforementioned, there is no dispute about the ratio laid in 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 Page 11 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined 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 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
Page 12 of 21
Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION
R/CR.MA/20271/2017 ORDER DATED: 02/08/2023
undefined
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 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 Page 13 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined aggrieved party.
(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."
7.5 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:
"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 Page 14 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined 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 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).
Page 15 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined
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;
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;
Page 16 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined
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 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;
Page 17 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined
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 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 Page 18 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined 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 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 Page 19 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023 NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined 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."
7.6 Considering the aforementioned observations, this is a case in which this Court should refrain from exercising its discretion under Section 482 of the Criminal Procedure Code, 1973 in favour of the applicant. Granting such discretion, in my opinion, would inadvertently encourage the abuse of the legal process.
8. Accordingly, the present application is dismissed with no order as to costs. Interim relief, if any, granted earlier stand vacated.
Page 20 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023
NEUTRAL CITATION R/CR.MA/20271/2017 ORDER DATED: 02/08/2023 undefined
9. At this point, the learned advocate for the applicant seeks a stay on the order issued in the present case. Looking to the pendency of this application and the fact that the investigation has remained inactive for approximately six years, I am of the opinion that let the investigation be carried out forthwith. Therefore, the request for a stay is denied.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 21 of 21 Downloaded on : Sat Sep 16 23:55:13 IST 2023