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[Cites 6, Cited by 0]

Gujarat High Court

Khodabhai Bababhai Desai vs The State Of Gujarat on 27 June, 2023

                                                                                    NEUTRAL CITATION




     R/CR.MA/17969/2018                               ORDER DATED: 27/06/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 17969 of 2018

==========================================================
                          KHODABHAI BABABHAI DESAI
                                   Versus
                            THE STATE OF GUJARAT
==========================================================
Appearance:
MR JAYPRAKASH UMOT(3581) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 27/06/2023

                               ORAL ORDER

1. By way of present application, the applicant - original accused no.3 [as per charge-sheet] has prayed for the following reliefs:-

7(a) to quash and set aside Criminal Case No.50714 of 2018 pending in the Court of Addl. Chief Metropolitan Magistrate, Court No.1, Ahmedabad arising out of the F.I.R. being Prohibition C.R. No.5279 of 2017 registered with Isanpur Police Station, Ahmedabad qua the present petitioner and to pass all incidental and consequential orders as may be deemed fit and Page 1 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined proper;
(b) pending admission, final hearing and disposal of this petition, to stay further proceedings of Criminal Case No.50714 of 2018 pending in the Court of Addl.

Chief Metropolitan Magistrate, Court No.1, Ahmedabad arising out of the F.I.R. being Prohibition C.R. No.5279 of 2017 registered with Isanpur Police Station, Ahmedabad qua the present petitioner;

(c) to pass any other and further orders as may be deemed fit and proper.

2. Mr. Aniq Kadri, learned advocate for the applicant submits that though charge-sheet is filed in view of the order passed by a co-ordinate bench of this Court in Criminal Misc.

Application No.3273 of 2017, the Court has observed even in such cases, charge-sheet is not required to be filed where no other offence except the statement of co-accused is available.

He has therefore submitted that the present applicant even otherwise son of deceased person in whose premises the goods, involved in the present offence, is found. Therefore, Page 2 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined considering the FIR and also, papers of charge-sheet except the statement of co-accused, no other evidence is available.

Therefore, he prays to quash and set aside the impugned FIR by exercising by exercising the inherent powers of this Court under section-482 of the Cr.P.C. in view of the decision of the Hon'ble Supreme Court in the case of State of Haryana v.

Bhajan Lal, reported in 1992 Supp (1) SCC 335.

3. Per contra Mr. Soaham Joshi, learned APP has drawn attention of this Court towards the complaint and submits that huge quantity of the liquor was found from the premises, where the father of the present applicant is owner of the said premises, and which is given on rent. He further submitted that it also reveals from the panchnama, that about 126 bottles were recovered from the said premises, which is owned by the father of the present applicant and the applicant is also aware of that the said premise was given on rent to such person. It is the duty of the owner of the premises to see that the premise, which is rented to the third person is not misused by the tenant or the person, who is in possession of the said premises. Therefore, it cannot be said that there is no Page 3 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined involvement of the applicant. The name of the applicant is shown on the basis of the statement of the co-accused.

Therefore, there is sufficient material for which the trial is required to be conducted. Therefore, this court should not exercise its inherent powers under Section-482 of the Cr.P.C.

4. I have considered the rival submissions made at the bar.

I have considered the fact that it is true that this Court in the other set of circumstances has observed that the applicant should not be implicated on the basis of the statement of co-

accused, but looking to the facts of the present case, more particularly, the liquor is found from the premises, which is owned by the deceased father of the present applicant and looking to the papers of charge-sheet as well as in the FIR, there is some allegations are made against the applicant, this Court is of the opinion that it is not appropriate at this stage to exercise discretion of this Court under Section-482 of Cr.P.C. as such aspects are required to be tested at the time of trial and while exercising powers under Section-482 of Cr.P.C. this Court has only to examine whether the prima-

facie offence is made out against the accused.

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NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined

5. In view of the judgment of Hon'ble Apex Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors. reported in 2021 SCC Online SC 315 in Para-18 & 23, the Hon'ble Apex Court has held as under:-

"18. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that "it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation". It is further observed that this kind Page 5 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is observed that such orders are de hors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:
"25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an Page 6 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind."

23. 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;
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NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined

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).

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 Page 8 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined 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 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 Page 9 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined 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;

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 10 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 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 Page 11 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023 NEUTRAL CITATION R/CR.MA/17969/2018 ORDER DATED: 27/06/2023 undefined 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."

6. In the facts and circumstances of the case and in view of the judgment of Hon'ble Apex Court in the case of M/s.

Neeharika Infrastructure Pvt. Ltd. (supra), the present application is required to be dismissed. Accordingly, the same is dismissed.

(SANDEEP N. BHATT,J) A. B. VAGHELA Page 12 of 12 Downloaded on : Sat Sep 16 20:41:05 IST 2023