Gujarat High Court
Anirudhbhai Shantilal Patel (Pramukh, ... vs State Of Gujarat on 5 December, 2024
NEUTRAL CITATION
R/CR.MA/16422/2019 ORDER DATED: 05/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16422 of 2019
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ANIRUDHBHAI SHANTILAL PATEL (PRAMUKH, SHRI VASUDEV
ASHRAMSHALA AT RAIPUR) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AV NAIR(5602) for the Applicant(s) No. 1,2,3
MR RAJABHAI J GOGDA(3628) for the Applicant(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 2
MS. MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/12/2024
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor - Ms. Monali Bhatt waives service of Rule on behalf of the respondent-State.
2. Heard learned advocate Mr. A.V. Nair for the petitioners, learned Additional Public Prosecutor Ms. Monali Bhatt for the respondent-State. Though served, none appeared for the respondent No.2
3. By way of this application under section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C"), the petitioners Page 1 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined have prayed for quashing and setting aside the FIR being I- Cr.R. 25 of 2019 registered with Jetpur Pavi Police Station, Dist. Chhotaudepur for the offences punishable under Sections 304 and 114 of the Indian Penal Code, 1860 (for short, "the Code") and Section 3(2)(v) of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act").
4. Brief facts of the case are as under:-
4.1. The Vadodara Jilla Pachatvarg Seva Mandal Public Trust, established in 1956 for the welfare of Scheduled Caste and Tribe children in Vadodara and Chhotaudepur. The complainant, serving as In-charge Assistant Commissioner in Chhotaudepur District, oversees tribal-run ashram schools and hostels, including Shri Vasudev Ashramshala Raipur. During surprise visits on 31/12/2018 and 27/06/2019, multiple deficiencies were observed, such as the building was in a dilapidated condition, lack of food and bedding, and risk of snake bites during monsoon season. Despite issuing multiple show-cause notices to Page 2 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined the President, Secretary, and Principal of the Ashram, no corrective actions were taken. On 02/07/2019, a student, Karamsingbhai Jethrabhai Rathwa, died from a snake bite due to the lack of ensuring safety and inadequate facilities of coats for students. The complainant has lodged a complaint / FIR, citing serious negligence.
5. Learned advocate for the petitioners submitted that allegations made in the FIR do not attract provisions of Section 3(2)(v) of the Act as well as provisions of Sections 304, 114 of the Code. Allegations in the impugned FIR are general in nature, arising from the unfortunate incident of death of a seven-year-old child due to snakebite, which prompted the filing of the complaint / FIR.
5.1. Learned advocate for the petitioners submitted that the allegations in the FIR do not establish that offense was committed by petitioners solely because the victim belonged to the Scheduled Castes or Scheduled Tribes. Learned advocate for the petitioners has relied upon the provisions of Section 3(2) Page 3 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined
(v) of the Act. It is submitted that the said provision can only be invoked if the ingredients mentioned in the Clause (v) of sub- section 2 of Section 3 of the Act are satisfied. It is submitted that for invoking provisions, the accused must have knowledge that a person is a member of the Scheduled Castes and the Scheduled Tribes and offence punishable under the provisions of the Code for which the punishment is prescribed with imprisonment for a term of 10 years or more against a person or property. It is submitted that during pendency of the present petition, petitioner No.2 - Prabhatbhai Darshanbhai Bariya has expired on 4.6.2021. Section 299 of the Code is also relied upon by learned advocate for the petitioners. Same provision is reproduced hereunder:-
"299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
5.2. It is submitted that for invoking provisions of Section 304 of the Code, offence must have been prima-facie established that there was an intention of the accused of causing death or Page 4 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined the act has been done with an intention of causing bodily injury as is likely to cause death. In the present case, none of the ingredients are found in the impugned FIR. In absence of basic allegations made in the FIR, it would amount to abuse of process of law if the chargesheet is permitted to be filed as prayed for by the learned APP during the course of submission. 5.3. It is further pointed out by learned advocate for the petitioners that Ashramshala which is known as Vasudevashram shala Raipur / Pavi Jetpur is a government granted Ashramshala and on repeated requests made by the President and the Secretary of the Ashramshala to release a grant, the State Government did not release grant for repairing of building. It is submitted that in absence of sufficient funds, building of Ashramshala could not be repaired in time. It is also submitted that incident which has taken place was never in control of the petitioners. The incident of snakebite to the child was not within the knowledge and control of the petitioners and therefore, provisions of Section 299 are not attracted, much less, the provisions contained under Section 304. Learned Page 5 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined advocate for the petitioners has relied upon the decision of Shajan Skaria v. State of Kerala reported in AIR 2024 SC 4557, by relying upon the aforesaid decision, the sum and substance of the submission canvassed by learned advocate for the petitioners is that in absence of allegations that offence has been committed by petitioners because the child was of a particular caste, no offence can be attributed to petitioners. In view of the above submissions it is prayed that the impugned FIR may be quashed and set aside.
6. Per contra, learned APP Ms. Monali Bhatt for respondent- State has placed on record the Investigation Report dated 5.12.2024 coupled with the documents such as the inquiry form duly filled in by the officer of the Tribal Development Department and certain communications together with the communication which was ensued between Ashramshala and the Government, copies of the show-cause notices dated 1.4.2019 and 29.6.2019 are placed on record, which are taken on record. Compilation of the Investigation Report also contains statements showing release of grant by the State Government in Page 6 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined favour of the Ashramshala for the years 2015-16 to 2019-2020. Learned APP has submitted that the contention of not releasing grant by the State Government at the appropriate time is a fallacy in view of the statement which is produced by the Investigating Officer alongwith its Investigation Report. The statement shows that Rs.33,08,036/- was released by the State Government in favour of the Ashramshala for various purposes which includes building maintenance. Said amount was not released for construction of compound wall. It is further submitted by learned APP that ingredients which are mentioned in Section 3(2)(v) of the Act are attracted in the present case. It is submitted that sub-clause 5 of sub-section 2 of Section 3 of the Act is applicable if the offence is punishable under the provisions of the Code and the punishment of imprisonment for a term of 10 years or more is prescribed for the commission of such offence under the provisions of the Code and the offence is committed knowing that person is a member of the Scheduled Castes and the Scheduled Tribes. It is submitted that in the present case, Ashramshala is meant for tribal students and petitioners were in full knowledge that students who were Page 7 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined studying in Ashramshala are from the Scheduled Tribes. When the knowledge is attributed to the petitioners with regard to the fact that the deceased child was from the Scheduled Tribes, allegations made in the complaint prima-facie indicate the involvement of petitioners in the offence. Hence, the provisions of the Act are applicable and the application may be dismissed. 6.1. Learned APP has relied upon a show-cause notice dated 29.6.2019 and submitted that in Clause No.5 of the said show- cause notice, there is a clear mention that there is no facility of coats for the students and in absence of facility of coats, there are every chance of snakebite in the monsoon season. The incident of snakebite has taken place on 2.7.2019, i.e. after the issuance of show-cause notice. Issuance of show-cause notice clearly indicates that petitioners had full knowledge that in absence of such basic facilities, there is every chance of happening of any incident which might put the life of students in danger. Since the petitioners did not take care of having basic facilities in the Ashramshala, and the incident has taken place on 2.7.2019, ingredients of Sections 299, 304 of the Code are Page 8 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined attracted.
6.2. Learned APP has further submitted that Investigating Officer has recorded statements of the teachers who are residing in the Ashramshala and those persons have supported the version of complainant that Ashramshala was in a very dilapidated condition and petitioners did not get the building repaired. It is submitted that decision which are relied upon by the learned advocate for the petitioners are not applicable to the facts of the present case as all the decisions which have been relied upon are after completion of Trial. In the present case, chargesheet is yet to be filed and the Investigating Officer is praying for a permission to file chargesheet before the learned Magistrate.
7. I have heard the learned advocates for the respective parties and perused the impugned FIR and other material which are placed on record for my consideration. Allegations made in the complaint are that on a surprise visit at the Ashramshala, namely, Vasudevashramshala Raipur / Pavi Jetpur on 31.12.2018 Page 9 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined by the complainant, it was found that Ashramshala was in a dilapidated condition and having no facilities for students. Resultantly, a show-cause notice dated 1.4.2019 came to be issued which was replied to by the Ashramshala on 24.4.2019 and gave assurance that basic facilities would be provided in the Ashramshala very soon. Complainant and its team again visited Ashramshala on 27.6.2019, it was found that the defects which were found and mentioned in the show-cause notice dated 1.4.2019 were not cured. Resultantly, another show-cause notice dated 29.6.2019 came to be issued wherein apprehension of snakebite was brought to the notice of Ashramshala. It was also alleged in the complaint that direction was also given to petitioners and the management of Ashramshala to shift Ashramshala within two days in any alternate place and complete renovation of the building. As defects which were brought to the notice of the management of Ashramshala was not adhered to, the unfortunate incident occurred on 2.7.2019 on which date the child, namely, Karamsingbhai Jethrabhai was bitten by snake and he unfortuntately succumbed. The requirement for invoking provisions of Section 3(2)(v) of the Act Page 10 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined are mainly two fold; firstly, that a person who is not a member of the Scheduled Castes or the Scheduled Tribes, if commits any offence punishable under the provisions of the Code with imprisonment for a term of 10 years or more against a person or property and secondly, while committing the offence, the accused is in knowledge of the fact that such a person is a member of the Scheduled Castes or the Scheduled Tribes. In the present case, undisputedly, there is no material to show that petitioners were not knowing that the deceased child was from the Scheduled Tribes. When the Ashramshala is run for the benefit of tribal child, a presumption can be drawn that petitioners had knowledge about the fact that the deceased child is a member of the Scheduled Tribes. Thus, provisions of Section 3(2)(v) are presumed to be present in the present case. So far as the next contention which has been raised by the learned advocate for the petitioners that in absence of any intention and knowledge in causing death or a bodily injury, no offence can be attributed to the petitioners. To answer this question, it would be apposite to refer the show-cause notices which were issued by the Officer of the Tribal Development Page 11 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined Department on 31.12.2018. A show-cause notice dated 1.4.2019 was issued wherein it is specifically mentioned that students, when asked with regard to basic facilities, they could not reply satisfactorily. In Clause No.9 of the said notice, there is a specific mention about not having coats in the Ashramshala. Again another show-cause notice dated 29.6.2019 came to be issued to the Ashramshala wherein it was again brought to the notice of the management that there is no facility of coats in the Ashramshala for students. By another notice dated 29.9.2019, management of the Ashramshala was intimated to get the Ashramshala shifted to some another alternative place within two days failing which the permission to run the Ashramshala would be cancelled. Against the aforesaid show-cause notices, replies were given on 24.4.2019. By way of the reply, a grievance is raised with regard to non-releasing of the grant and so far as other issues are concerned, management assured to cure defects which were pointed out by the Authority. A reply dated 2.7.2019 was submitted by Ashramshala against the notice dated 29.6.2019 and reiterated the same assurance but on the same day, unfortunate incident occurred in the Page 12 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined Ashramshala which resulted into the death of the minor child aged about seven years of age. Much hue and cry is made by petitioners with regard to non-release of grant by the State Government, however on perusal of the statement which is produced by the Investigating Officer, it reflects that for the year 2019-20, grant was released to the tune of Rs.33,08,036/- which was to be used under different heads which are mentioned in the statement. At serial No.2, it has been mentioned that as per the Resolution dated 25.11.1988, grant can be used for other uses which includes maintenance of building. The account statement which has been produced by the Investigating Officer along with the Investigation Report for the years 1.4.2019 to 31.3.2020 on the income side, there are two entries; one is Government Maintenance Grant to the tune of Rs.15,10,800/- and secondly, Employees Salary Grant to the tune of Rs.17,85,836/-. A resolution dated 25.11.1988 also permits the Ashramshala to use the maintenance grant for repairing building, it seems from the statement of income expenditure for the years 1.4.2019 to 31.3.2020, no expense has been expended for the maintenance of the building. The story of Page 13 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined non-release of grant by the State Government falls flat by relying upon the material which is placed by the respondent. Petitioners have also produced statement of income expenditure for the year commencing from 1.4.1999 to 31.3.2000, 1.4.2000 to 31.3.2001, 1.4.2018 to 31.3.2019, 1.4.2022 to 31.3.2023. All these documents go to show that the State Government has released grant under the aforesaid two classes. 7.1. In view of the above discussion and in view of the undisputed fact that the show-cause notices were issued wherein the apprehension was conveyed to the management of the Ashramshala of which the petitioner No.1. is the Trustee and petitioner No.3. is the Acharya of the Ashramshala. When the complete knowledge regarding apprehension was brought to the notice of the management of chances of incidents of happening of snakebite, petitioners cannot run away by submitting that the act was not done with intention of causing death and Furthermore, they cannot escape from the fact that they were not aware that such an act could result in the death of any of the students. Ratio laid down by the Hon'ble Apex Page 14 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined Court in the decisions which have been relied upon by the learned advocate for the petitioners, in my opinion, is not applicable because for the reason that in those decisions, observations are made with regard to absence of ingredients by invoking the provisions of Section 3(1) and Section 3(2)(v) of the Act after the full fledged trial. In the present case, chargesheet is yet to be filed and contentions which are raised by the petitioners for quashing the complaint / FIR can be raised during trial and can be decided by the learned Sessions Judge after considering evidence produced by the prosecution. Contentions which are raised in the present application do not inspire this Court to quash the FIR at this stage, however, liberty is granted to the petitioners to raise all the contentions which are raised before this Court and the learned Sessions Court may deal with the same in accordance with law.
8. At this stage, in a recent decision of the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, is required to be referred to. After taking into Page 15 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined consideration the earlier decision of State of Haryana V. Bhanaj Lal, reported in 1992 Supp (1) SCC 335 and others. The Hon'ble Supreme Court has observed in Paragraph Nos.10.3 & 33, which are as under:
"10.3.Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:
"102.(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 section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.
(3) Where the uncontroverted allegations Page 16 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 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 section 155(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 Act concerned (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 Act concerned, 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 ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In the above decision, the Apex Court came to the Page 17 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined conclusion that;
"33. 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 of Cr.P.C and/or under 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 of Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C.
and/or under section 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 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;Page 18 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025
NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined
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;
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 Page 19 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia 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 of 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 Page 20 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined made by the alleged accused and the court when it exercises the power under section 482 of 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 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 / Page 21 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined charge-sheet 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 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."
9. In view of the above decision given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd. (Supra), it transpires that the power of quashing of criminal proceedings Page 22 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies. It is well settled that at the stage when the High Court considers a petition for quashing criminal proceedings under Section 482 of the Cr.P.C, the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no cognizable offence, as alleged has been made out, that the Court may be justified in exercising its jurisdiction to quash.
10. Applying to the law laid down by the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. (supra) to the facts of the case in hand, this Court is of the firm opinion that this is not a fit case to entertain present application and to quash the criminal proceedings in exercising the powers under Section 482 of Cr.P.C. at the threshold. The submissions made Page 23 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025 NEUTRAL CITATION R/CR.MA/16422/2019 ORDER DATED: 05/12/2024 undefined on behalf of the petitioenrs that they are innocent and/or they have not committed any offence alleged is premature.
11. In view of the above and for the reasons stated herein above, no case is made out to quash the FIR / criminal proceedings at this stage while exercising the powers under Section 482 of Cr.P.C. Therefore, present application fail and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. No order as to costs. Interim relief, if any, stands vacated.
12. At this stage, learned advocate for the petitioners have made a request to continue the interim protection which was granted by this Court for a period of four weeks. Against this, learned APP has objected and submitted that petitioners were enlarged on anticipatory bail and there is no question of arrest. In view of the above, request is rejected.
(D. M. DESAI,J) MANISH MISHRA Page 24 of 24 Uploaded by MANISH MISHRA(HC01776) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:21:53 IST 2025