Gujarat High Court
Ashvinbhai Rajubhai Kumarkhaniya vs State Of Gujarat on 8 September, 2022
Bench: Aravind Kumar, Ashutosh J. Shastri
C/MCA/209/2022 ORDER DATED: 08/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 209 of 2022
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ASHVINBHAI RAJUBHAI KUMARKHANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR AJAY L PANDAV(3660) for the Applicant(s) No. 1
MR. K.M. ANTANI, AGP, for the Opponent(s) No. 1,2,3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 08/09/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Present contempt proceeding have been initiated alleging that respondent No. 4 who is Mr. Mukeshdan Ishrani Gadhavi, Police Sub-Inspector, Lakhtar Police Station had willfully and deliberately disobeyed and committed breach of the directions issued by the Hon'ble Apex Court in the case of D.K. Basu versus State of Bihar reported in AIR 2014 SC 2756 and in the case of Lalita Kumari versus Government Page 1 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 of Uttar Pradesh reported in (2014) 2 SCC 1.
2. The respondents on being notified, have appeared, and respondent No. 4 has filed an affidavit-in-reply denying the averments made in the application except to the extent expressly admitted thereunder.
3. We have heard Mr. Ajay Pandav, learned counsel appearing for petitioner and Mr. K.M. Antani, learned AGP appearing for respondent - State authorities.
4. It is contention of learned advocate Mr. Ajay Pandav appearing for petitioner that respondent No. 4 had called upon the petitioner to appear before Lakhtar Police Station on 12.02.2022 for a purported inquiry which has nothing to do with the petitioner and petitioner having visited the said police station, was not only ill-treated but also illegally detained for several hours and assaulted, beaten by the fourth respondent and fourth respondent had also abused the petitioner. Hence, it is contended that respondent no. 4 has Page 2 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 committed breach of the directions issued in the case of Lalita Kumari's case (Supra) and violated the directions issued in D.K. Basu's case (supra). In reply-affidavit that has been filed, fourth respondent has contended that on account of a complaint received from one Shri Bharatbhai Kantilal Ojha, whereunder he has alleged that there was certain financial transactions between himself and the brother of petitioner, who had agreed to supply in all four containers for a total consideration of Rs. 5 lacs, for which complainant had agreed and paid the said amount in cash and on account of same having not been delivered and demands made by the complainant having not yielded result and when approached, the complainant had agreed to pay the said amount on behalf of his brother and same was not paid and on repeated requests made, a threat was posed to the complainant by petitioner herein to do away with his life of the complainant and as such complaint came to be lodged by the said Mr. Bharatbhai Kantilal Ojha against petitioner which resulted in investigation being taken up and during the course of investigation, present complainant was called to the Page 3 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 Police Station and there was neither ill-treatment nor misbehaviour by the police officer namely respondent No. 4 and even otherwise, after the inquiry being made by fourth respondent, it has been found that the dispute is essentially of civil in nature and as such a communication has been forwarded to the complainant on 06.09.2022 to the said effect and also intimating that no further action from the police was warranted.
5. Learned AGP has placed on record the said communication dated 06.09.2022 forwarded by the fourth respondent to the complainant Mr. Bharatbhai Kantilal Ojha, a copy of which is also furnished to the complainant herein as well as learned counsel appearing for the complainant.
6. Though complainant in the present petition would contend that on 12.02.2022, he was summoned by the fourth respondent to the Lakhtar Police Station and in due obedience to the said direction, complainant had appeared and at that point of time, under the guise of inquiry, fourth Page 4 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 respondent had assaulted, there is no verifiable material placed by petitioner in that regard and as such said contention requires to be taken with a pinch of salt. We say so for the simple reason that in the event of petitioner having been assaulted as claimed, nothing prevented from him taking immediate steps of either complaining to the higher authorities or proceedings to a hospital for taking treatment or obtaining medical certificate from appropriate authorities which would have disclosed that what was the physical condition of the petitioner on account of such assault or beating by the police. In the absence of any such steps taken by the complainant, which is expected of a normal prudent person, it would be too hard to believe the contention raised by the complainant in the present petition.
7. The jurisdictional police having received the complaint, instead of registering the FIR, have found that there was an element of doubt with regard to the veracity of statement made in the complaint. It is in this background, they have taken note of the directions issued in the Lalita Page 5 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 Kumari's case (supra) by the Hon'ble Apex Court and as such instead of registering an FIR as it did not disclose a cognizable offence, has rightly probed further and for purposes of investigating in to the complaint, they have summoned the petitioner for investigation and on being informed and told to appear before the police station on 12.02.2022, petitioner has rightly appeared in the inquiry. During the course of investigation, police authorities have come to know that dispute is essentially a civil dispute or in other words allegation made in the complaint is more of civil flavour or the allegations made in the complaint is more of civil flavour and ingredients of criminal offence being conspicuously inconspicuous in the facts obtained, they have rightly refused to register the FIR for the offence of either breach of trust or cheating as claimed by the complainant in his complaint. Hence, by communication dated 06.09.2022, fourth respondent has intimated the complainant that his complaint is being filed as they have not found any ingredients of any offence made out and found no further action was required to be taken in the matter since dispute is Page 6 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 essentially a civil dispute.
8. Petitioner relies upon a purported treatment said to have been obtained at Govt. Hospital at Nana-Parkota, Virgam for medical treatment and draws attention of the Court to paragraph 2.17 urged in the application to support the contention of having been treated in the Government Hospital for injuries sustained due to assault by police. His plea to the said effect reads :
"2.17. It is submitted that thereafter, the present applicant returned to his home and at night at about 8.25, there was pain in hands of the present applicant and therefore, the present applicant was taken to the Government Hospital at Nana-Parkota, Viramgam for medical treatment. Therefore, the present applicant was given treatment on his hands by the Doctor and the said medical case was registered as PM-Emergency-MLC-183."
9. Except mere assertion in the petition of the said hospital having extended treatment and he was treated as a medical case, neither the details of such treatment obtained nor copy of the MLC register extract which could have been obtained by the petitioner has been tendered. As such, in the contempt jurisdiction, reverse onus cannot be put on the Page 7 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 contemnor to prove the same in the absence of any positive evidence placed by the petitioner. The said contention cannot be accepted and it stands rejected.
10. We also notice that based on the complaint given by the petitioner to the higher authorities in the police department, it resulted into an inquiry being ordered, and in the inquiry conducted, a report has been submitted whereunder it has been found that allegations made in the complaint are meritless. The report produced at Annexure R- 3 prima facie cannot be discounted or ignored particularly when there is no contra material placed by the petitioner to accept the statement made by the petitioner to be prima facie true.
11. In that view of the matter, continuation of the contempt proceedings is not warranted and there being no material whatsoever, which can be construed as to be within the proximity of truth regarding allegations of assault, we have no hesitation in rejecting the said contention and Page 8 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022 C/MCA/209/2022 ORDER DATED: 08/09/2022 dismissing the contempt proceedings.
12. Accordingly, present contempt petition stands DISMISSED.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) AMAR SINGH Page 9 of 9 Downloaded on : Mon Sep 12 20:44:37 IST 2022