Gujarat High Court
Balu Aliyaji Vanzara vs State Of Gujarat on 12 July, 2024
NEUTRAL CITATION
R/CR.MA/19926/2019 ORDER DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19926 of 2019
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BALU ALIYAJI VANZARA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. JS SADHWANI(3893) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
UNSERVED REFUSED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 12/07/2024
ORAL ORDER
1. By way of preferring this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the FIR being C.R.No.II-741 of 2019 registered at Sarthana Police Station, Surat City for the offence punishable under Sections 507, 504, 294(B) and 506(2) of the Indian Penal Code.
2. The case of the prosecution can be summarized in nutshell as under:
2.1. It is the case of the complainant that he had given Rs.3,25,00,000/- to one Nareshbhai Daulatbhai Vanzara of Surat and when he asked Nareshbhai to Page 1 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined repay the said amount, he had given false promises and therefore before about two and half months as the complainant could not contact the said Nareshbhai, he met the father of Nareshbhai viz. Daulatbhai and at that relevant point of time, Daulatbhai informed the complainant that due to tension, Naresh had gone to some place and he did not know anything about it.
Thereafter, on 16.08.2019, the complainant made a phone call to the brother-in-law of Nareshbhai viz. Balubhai (presetn applicant) with a view to get the whereabouts of said Nareshbhai. The said Balubhai informed the complainant that he does not know the whereabouts of Nareshbhai and therefore complainant asked Balubhai to inform the complainant if he gets any information of Nareshbhai and thereafter he disconnected the call. However, at around 4:30 hours in the evening, the said Balubhai had made phone call to the complainant and administered threat that you are spreading rumors in the market that his brother- in-law (Jijaji) Nareshbhai had lost money in the gambling activities, due to which, he had left the house and ran away and also hurled abuses. Therefore, FIR has been registered.
3. Heard learned advocate Mr. J. S. Sadhwani for the applicant and learned APP Mr. Soaham Joshi for the respondent - State. It is found out from the record that notice issued by this Court has not been accepted by respondent No.2 - complainant and he Page 2 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined refused to accept the said notice. Thus, the complainant has chosen not to appear before this Court and contest this application.
4. Learned advocate Mr. Sadhwani submits that as per the case of the prosecution, the so-called incident is occurred on 16.08.2019, whereas, FIR in question is filed on 29.09.2019. Therefore, there is gross delay of one and half months in registering the FIR in question. Learned advocate Mr. Sadhwani further submits that on the strength of registration of the FIR, investigation has been commenced and as soon as the said fact has come to the notice of the present applicant immediately he approached this Court and considering the allegations levelled against the applicant in the FIR, he has been protected by this Court. He further submits that it is the case of the applicant that complainant is residing at Surat and he registered complaint at Surat, whereas, present applicant is residing at Bhavnagar and applicant had never got any opportunity to meet the complainant. As per the case of the prosecution, on the date of incident, in the afternoon, complainant in first point of time made a phone call to the applicant and thereafter, after some time, present applicant had made a phone call to the complainant and administered so-called threat and hurled abuses. He further submits that the father of Nareshbhai has registered one complaint before Amroli Page 3 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined Police Station, Surat against total 14 accused persons, wherein, complainant has been shown as an accused. The said FIR has been registered on 13.09.2019 and after lapse of period of 16 days, present FIR has been registered by the complainant with a sole intent to create pressure upon Nareshbhai. Learned advocate Mr. Sadhwani further submits that act, action and conduct of the complainant clearly goes on to show that this is nothing but sheer abuse of process of the law hence proceedings instituted against the applicant accused are required to be quashed and set aside.
5. Learned advocate Mr. Sadhwani further submits that as per the ratio laid down by the Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, reported in (2005) 1 SCC 122, Section 482 of the Code of Criminal Procedure, 1973 envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court and (iii) to otherwise secure the ends of justice. Learned advocate Mr. Sadhwani has also put reliance upon the decisions of the Hon'ble Apex Court in the case of R. P. Kapur v. State of Punjab, reported in AIR 1960 SC 866 and in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp. (1) SCC 335 and submitted that considering the ratio laid down by the Hon'ble Page 4 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined Apex Court in the aforesaid decisions and above stated factual aspects, the proceedings instituted by the complainant against the applicant are required to be quashed and set aside. If the allegations levelled against the applicant accused in the FIR are to be seen in their entirety, even though, it can safely be said that no offence much less the offence enumerated in the FIR in question is made out against the applicant accused. Hence, the FIR in question may be quashed.
6. Learned APP Mr. Soaham Joshi has objected present application with vehemence and submitted that prima facie basic ingredients of the offence enumerated in the body of the FIR are attracted. He further submits that during the course of investigation, investigating officer has recorded statement of two persons who had overheard the conversation made between the applicant and complainant. He further submits that fortunately complainant was having mobile phone wherein entire conversation was recorded. He has supplied the copy of the transcript of the said document and submits that bare perusal of the transcript clearly goes on to show that threat was administered by the present applicant accused at the time of making phone call and basic and essential ingredients of offence punishable under Sections 507, 504, 294(B) and 506(2) of the Indian Penal Code are attracted in the instant Page 5 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined case. He further submits that during the course of investigation, investigating officer has also collected Call Data Record of the phone of the complainant and the said document corroborates the case of the complainant which clearly goes on to show that on the date of incident, applicant has made phone call to the complainant. Thus, considering the above stated factual aspects, this Court may not entertain the present application.
7. I have gone through the Record and Proceedings and also perused the material available on record. It is found out from the record that the so-called incident is occurred on 16.08.2019, whereas, the FIR is filed on 29.09.2019. Thus, there is gross delay in registering the FIR and in the entire body of FIR, nowhere, complainant has given any explanation why FIR is filed at the belated stage i.e. almost after more than forty days. It is also found out from the record that the father of Nareshbhai has registered one complaint before Amroli Police Station, Surat against total 14 accused persons, wherein, complainant has been shown as an accused. The said FIR has been registered on 13.09.2019 and after lapse of period of 15 days, present FIR has been registered by the complainant. Thus, in the opinion of this Court, the complainant has lodged the FIR in question only as a counterblast with a view to create pressure upon Nareshbhai.
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8. Before dwelling into the issue involved in the matter, I would like to refer to the decision of Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana and Another, reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:
"20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
xxx xxx xxx
23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an Page 7 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
8.1. Thus, there are three circumstances under which this Court can exercise inherent jurisdiction, namely, (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
9. Now, I would like to refer to the decision of the Hon'ble Apxe Court in the case of Vikram Johar v. State of Uttar Pradesh and another, reported in AIR 2019 Supreme Court 2109, wherein the Hon'ble Apex Court has observed that for the purpose of invoking the provisions of Section 504 IPC, the basic ingredients are required to be satisfied, which are
(i) intentional insult, (ii) the insult must be such as to give provocation to the person insulted, and
(iii) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The following ingredients are required to be satisfied so as to invoke the provisions of Section 506. (i) that the accused threatened some person, (ii) that such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; and (iii) that he did so with intent to cause alarm to that person; or Page 8 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat. A plain reading of the allegations in the FIR in question, in the opinion of this Court, does not satisfy all the aforesaid basic and essential ingredients so as to invoke the provisions of Section 504 and 506(2) of the IPC.
10. It is well settled that where the Court finds that 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 and/or 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/her due to private and personal grudge, in that event, the Court should exercise inherent powers under Section 482 of the Code by quashing the FIR/complaint. Here in the instant case, from bare reading of the contents of the FIR in question, it transpires that no offence much less the offence enumerated in the FIR in question are made out against the applicant accused and the FIR in question is registered only with a view to create pressure upon Nareshbhai whose father has lodged one criminal complainant against the Page 9 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024 NEUTRAL CITATION R/CR.MA/19926/2019 ORDER DATED: 12/07/2024 undefined complainant.
11. So far as Sections 507 and 294(B) of the Indian Penal Code are concerned, none of the ingredients to constitute even the offence punishable under Sections 507 and 294(B) of the Indian Penal Code are spelt out. Thus, in view of the aforesaid discussion, from bare perusal of the FIR itself, none of the ingredients to constitute the alleged offence are attracted in the present case.
12. For the foregoing reasons, I am inclined to allow this application and the same is accordingly allowed. The FIR being C.R.No.II-741 of 2019 registered at Sarthana Police Station, Surat City for the offence punishable under Sections 507, 504, 294(B) and 506(2) of the Indian Penal Code and consequential proceedings arising out of the said FIR are hereby quashed.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 10 of 10 Downloaded on : Fri Jul 12 22:45:22 IST 2024