Gujarat High Court
Sudhaben Manibhai Makwana vs State Of Gujarat on 5 July, 2023
NEUTRAL CITATION
R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 2499 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUDHABEN MANIBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR JOHNSEY P MACWAN(5498) for the Applicant(s) No. 1
HL PATEL ADVOCATES(2034) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/07/2023
ORAL JUDGMENT
1. The present application is filed for seeking following main reliefs:
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NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined "A. This Hon'ble Court may be pleased to admit and allow this petition.
B. This Hon'ble Court may be pleased to quash and set aside FIR being 11215020200024 registered with Petlad Rural Police Station, Dist. Anand for offence punishable under sections 3 and 4 of The Gujarat Freedom of Religion Act, 2003.
C. Pending admission and final disposal of the present petition, be pleased to stay further investigation in respect of FIR being 11215020200024 registered with Petlad Rural Police Station, Dist. Anand for offence punishable under sections 3 and 4 of The Gujarat Freedom of Religion Act, 2003."
2.1 Brief facts as per the case of the complainant in this application are as such that complainant is activist of forum for peace and justice. It is further the case of the applicant in this application that in the year 2013, he came to know that one - Sudhaben Makwana mother of minor Joyal Mithilesh Chourasiya had performed conversion of her son - Joyal at Amod church by the then parish priest of the church without prior permission of the District Magistrate. It is further the case of the Page 2 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined applicant in this application that father of the minor son
- Mithilesh Chorasiya had also represented in this regard. On scrutiny it found that the mother and father of minor Joyal were in love with each other resultantly they got married and registered their marriage on 17.07.2001. It is further the case of the applicant in this application that Sudhaben was frequently visiting church at Amod, in the certificate of Joyal Mithilesh Chorasiya issued by R.C. Mission School, Mariampura. It is mentioned the caste as Hindu Panvadiya. It is further the case of the applicant in this application that the marriage of mother and father was performed by Hindu rituals. It is further the case of the applicant in this application that father of Joyal is of Hindu Vaishya community. In the leaving certificate of the mother of Joyal the caste is mentioned as Hindu-Vankar. It is further the case of the applicant in this application that the mother and father of Joyal had got divorce by divorce agreement on 28.03.2008 and there also it mentioned that the religion is Hindu. 2.2 It is further the case of the applicant in this application that on 08.04.2012 the then Parish Priest of Page 3 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Village Amod had converted Joyal from Hindu Religion to Christian religion without obtaining prior permission of the competent officer. Therefore, the complainant had made an application to the District Collector in this regard and the Collector had issued directions to act in accordance with law.
2.3 Hence, the present application is preferred.
3. Heard learned senior advocate Mr. Percy Kavina assisted by Mr. Johnsey P. Macwan for the applicant, HL Patel Advocates for the respondent No.2 and Mr. Dhawan Jayswal, learned APP for the respondent No.1 - State.
4.1 Learned senior advocate Mr. Percy Kavina has submitted that the present complaint has been filed at the behest of a third party, which is not maintainable in the eyes of the law. Furthermore, it is submitted that the complaint was filed much after the alleged offense was committed. He has drawn the attention of this Court towards the contents of the F.I.R., wherein it is stated that the alleged offense was committed on Page 4 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 8.4.2012, and the information was given to the Police Station on 22.1.2020 by one Dharmendrakumar Natwarsinh Rathod, who has no connection with the alleged offense. The complaint is registered under the provisions of the Gujarat Freedom of Religion Act, 2003. 4.2 He has further submitted that considering the tenor of the complaint, no offense is made out against the present applicant, as the complaint is not filed by the near blood relatives as required under Section 3 of the Gujarat Freedom of Religion Act, 2003. He has also drawn my attention to the fact that the complaint is filed against the present applicant, who happens to be the mother of the minor Joyal - Mithilesh Chorasiya. It is alleged that she performed the conversion of her son - Joyal at Amod church by the then parish priest of the church without prior permission from the concerned District Magistrate.
4.3 The father of the minor son - Mithilesh Chorasiya has also represented this matter. Additionally, he has brought my attention to the divorce deed dated 28.3.2008, whereby the father and mother of the minor - Joyal got divorced, and in the divorce deed, the religion Page 5 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined of the parties is stated as Hindu. Furthermore, Joyal's School Leaving Certificate mentions his caste as Hindu- Vankar. Furthermore, the allegation in the complaint states that on 8.4.2012, the Parish Priest of Village Amod converted Joyal from Hindu Religion to Christian religion without obtaining prior permission from the competent officer, as required under the law. It has been submitted that this entire complaint is filed at a very belated stage in the year 2020, and even the complainant has no locus to file it. Continuing the proceedings pursuant to such a complaint will amount to an abuse of the process of law.
4.4 He has drawn my attention towards Sections 3 & 4 of the Gujarat Freedom of Religion Act, 2003, and has submitted that upon a bare reading of these sections and considering the documentary evidence available on record, it cannot be said that prima facie any offense is made out. Furthermore, considering the fact that such a complaint is filed at a belated stage, he argues that the proceedings are required to be quashed. 4.5 In response, at this juncture, the learned Assistant Page 6 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Public Prosecutor has filed the report of the concerned Investigating Officer. He draws the attention of this Court that the charge-sheet is already filed in the matter, and the trial has already commenced before the trial court concerned.
4.6 In response to that, the learned senior advocate, Mr. Percy Kavina, has submitted that this Court can exercise its powers at any stage of the trial, irrespective of whether the charge-sheet is filed or charges are framed. 4.7 He has relied on the judgment of the Hon'ble Apex Court in the case of Anand Kumar Mohatta and Another versus State (NCT of Delhi), Department of Home and Another reported in (2019) 11 SCC 706, specifically, paragraph 14 to 16 are relevant. He has also relied on the judgment of Allahabad High Court in the case of Mohd. Kaleem versus State of U.P. thru. Prin. Secy. Home and Others reported in 2019 SCC OnLine 4441, specifically, paragraphs 10 & 11 are relevant. He has also relied on the judgment of the Bombay High Court in the case of Nicholas John Fernandes and Another versus State as Represented by Officer in Charge and Page 7 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Another reported in 2021 SCC OnLine Bom 2980, and has submitted that such process can be quashed at any stage of trial and in view of the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this Court should exercise its inherent powers under Section 482 of the Criminal Procedure Code, 1973 by quashing and setting aside the impugned F.I.R.
5.1 Per contra, Mr. Vijay Patel, learned advocate for the respondent No.2 strongly opposes the contentions raised by the learned senior advocate for the applicant. He draws attention of this Court to the affidavit-in-reply filed by the complainant and submits that, as per Section 5 of the Gujarat Freedom of Religion Act, 2003, prior permission must be obtained from the District Magistrate for any conversion. In the present incident, no such permission was granted by the trial court, nor was it applied for by the applicant before the conversion of religion took place. He further points out the correspondence and a certificate issued by the R.C. Mission Primary School, which shows the name of the minor son as Joyal Mithileshkumar Chourasiya. Page 8 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023
NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 5.2 He further draws my attention to the certificate of Baptism, issued by the Parish Priest of the Catholic Church in Amod, which mentions the name of the minor son as the same. Moreover, the process of conversion of religion is confirmed by the Catholic Church through communication sent to the Police Inspector in Petlad. Additionally, he points out the school leaving certificate of the applicant, which shows the name of the applicant as Sudhaben Manibhai Makwana.
5.3 He further draws my attention to the divorce deed, where the caste of the applicant is also shown as Hindu. Therefore, he submits that regardless of the fact that the complainant came to know about the offense after the father of the boy, Joyal, made representations to various authorities, and the delay occurred in lodging the F.I.R., it is not relevant because the offense has taken place, and there is a clear violation of the provisions of Section 5 of The Gujarat Freedom of Religion Act, 2003. He argues that no relief can be granted based on the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Page 9 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Maharashtra and Others reported in 2021 SCC OnLine SC 315, particularly para 80 is relevant. Therefore, he prays that the present application is required to be allowed.
6. Mr. Dhawan Jayswal, the learned APP, has also supported the submissions made by the learned advocate for respondent No.2 at the bar. He argues that since the trial has already commenced, and the charge-sheet has been filed, this Court should not exercise its powers. Furthermore, he contends that prima facie, a case is made against the applicant. Therefore, he prays that the present application is required to be allowed. 7.1 I have heard the learned advocates for the respective parties. I have considered the submissions made at the bar.
7.2 Based on the submissions made by the learned advocates for the respective parties and considering the F.I.R. along with the documents annexed with the application and affidavit-in-reply, the following facts have been observed:
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NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined (i. The marriage between the father and mother of Joyal was solemnized on 17.7.2001.
(ii. On 8.4.2012, the minor son's baptism was performed, converting him from Hindu Religion to Christian Religion, as evidenced by a certificate dated 26.2.2013 issued by the Catholic Church.
(iii. On 6.6.2014, the father filed an application to the Ministry of Home Affairs, reporting the forceful conversion of his son by his in-laws.
(iv. On 20.6.2014, the Ministry of Home Affairs directed the Chief Secretary, Government of Gujarat, to take appropriate action based on the complaint. (v. On 22.7.2014, the District Magistrate directed the Sub-Divisional Magistrate, Petlad, to take necessary action on the above complaint.
(vi. On 23.7.2014, the Police Commission reported after an inquiry, stating that it is a dispute between husband Page 11 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined and wife.
(vii. On 8.8.2014, an application was filed with the District Magistrate under the Complaint Redressal Scheme at the District Level.
(viii. On 11.9.2014, the District Magistrate received the application under the Complaint Redressal Scheme at the District Level.
(ix. On 15.9.2014, the Office of the Deputy Collector stated that the investigation was already done and the report dated 23.7.2014 was forwarded to the District Magistrate.
(x. On 19.7.2018, the respondent No.2 (complainant) filed an application to the District Magistrate, Anand, after obtaining all the relevant documents through the Right to Information (R.T.I.).
(xi. On 3.1.2020, the District Magistrate requested the District Superintendent of Police to lodge a Criminal Case against the Priest, Mother, and Father of the son. Page 12 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023
NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined (xii. On 22.1.2020, an F.I.R. was registered under Sections 3 & 4 of the Gujarat Freedom of Religion Act, 2003.
(xiii. On 27.6.2020, a charge-sheet was filed against the priest and mother of the minor son.
The court has taken all these facts into consideration during the proceedings. 7.3 Considering this factual background, now it is relevant to consider that the case is essentially the conversion of religion of son of the applicant - Joyal without prior permission of the competent authorities. 7.4 Sections 3, 4 & 5 of the Gujarat Freedom of Religion Act, 2003, as under:
"3. Prohibition of forcible conversion. - No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent Page 13 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined means nor shall any person abet such conversion.
4. Punishment for contravention of provisions of section 3:- Whoever contravenes the provision of section 3 shall, without prejudice to any civil liability, be punished with imprisonment for a term, which may extend to three years and also be liable to fine, which may extend to rupees fifty thousand:
Provided that whoever contravenes the provisions of section 3 in respect of a minor, a woman or a person belonging to Scheduled Caste or Scheduled Tribe shall be punished with imprisonment for a term which may extend to four years and also be liable to fine which may extend to rupees one lakh.
5. Prior permission to be taken from District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion to another either by performing any ceremony by himself for such conversion as a religious priest or takes part directly or indirectly in such ceremony shall take prior permission for such proposed conversion from the District Magistrate concerned by applying in such form as may be prescribed by rules.
(2) The person who is converted shall send an Page 14 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined intimation to the District Magistrate of the District concerned in which the ceremony has taken place of the fact of such conversion within such period and in such form as may be prescribed by rules. (3) Whoever fails, without sufficient cause, to comply with the provisions of sub-sections (1) and (2) shall be punished with imprisonment for a term, which may extend to one year or with fine which may extend to rupees one thousand or with both."
7.5 Based on the available information, it is evident that Section 5 of the Gujarat Freedom of Religion Act, 2003, explicitly requires prior permission from the District Magistrate for any religious conversion. However, in the present case, no such permission has been obtained, and it is not available in the records along with the application. Additionally, the facts establish that the minor child, Joyal, was converted from Hindu religion to Christian religion on 8.4.2012 by his mother and the parish priest of the Catholic Church in Amod. It is undisputed that, at the relevant time, Joyal Mithilesh Chourasiya was Hindu and was studying as a Hindu child. Even the divorce deed reveals that at the time of divorce, both the husband and wife had mentioned their Page 15 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined religion as Hindu. These established facts further support the contention that the conversion took place without the required permission from the District Magistrate, which is essential as per the provisions of the Gujarat Freedom of Religion Act, 2003. This raises a crucial question regarding the legality and validity of the conversion process. The court should carefully consider these aspects while evaluating the case.
7.6 Based on the rival submissions made at the bar, it is evident that prima facie, there was a clear failure to comply with Section 5 of the Gujarat Freedom of Religion Act, 2003, before the conversion took place. The applicant does not dispute this fact, and although Sudhaben has cited the certificate of Baptism indicating her prior practice of Baptism since 1978, all other official documents such as the School Leaving Certificate of the mother, the divorce deed agreement, and the School Leaving Certificate of the child indicate that both the mother and son were Hindus at the relevant time. Furthermore, considering the sequence of events, it is apparent that the Baptism Ceremony took place in April 2012, and the certificate was issued by the Catholic Page 16 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Church in 2013. However, subsequent events, such as the husband's grievance in 2014, followed by inquiries and actions taken by relevant authorities, demonstrate that there were objections and concerns raised soon after the Baptism. Moreover, the complainant filed their complaint with the District Magistrate, Anand, on 19.7.2018, immediately after obtaining necessary documents through the Right to Information (R.T.I.), indicating that they have been actively pursuing the matter since then. Hence, it cannot be considered a belated complaint. The grievance process has been ongoing, and the applicant's contention of a belated complaint is unfounded. The court should carefully consider all these facts and circumstances while deciding on the merits of the case and whether any relief should be granted to the applicant.
7.7 Now, it is also relevant to note that charge-sheet is already filed and trial is in progress, and therefore, there is no dispute about the ratio of judgment of the Hon'ble Apex Court cited by the applicant in the case of Anand Kumar Mohatta and Another (supra), specifically, para 14 to 16 are relevant, as under:
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NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined "14. First, we would like to deal with the submission of the learned Senior Counsel for the Respondent No.2 that once the charge sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat. In the case of Joseph Salvaraj A. (supra), this Court while deciding the question whether the High Court could entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed: -
"16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge- sheet, documents, etc. or not."
15. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is Page 18 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
16. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending 2 (2011) 7 SCC 59 with the trial court3. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of Page 19 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined power of any court."
7.8 In light of the above considerations, this Court possesses ample powers under Section 482 of the Criminal Procedure Code, 1973, to intervene even after the trial has commenced before the trial court. However, the exercise of such powers is not bound by a rigid formula and must depend on the specific facts and circumstances of each case. In the present case, it is prima facie evident that the applicant has breached Section 5 of the Gujarat Freedom of Religion Act, 2003, by converting the minor child without obtaining the required permission from the District Magistrate. Considering this violation, the Court finds no valid reason to interfere with the proceedings initiated following the F.I.R. The criminal case is already in progress, and the trial has been initiated. Based on the facts and circumstances presented, it is concluded that the Court shall allow the trial to proceed without interference at this stage. The merits of the case shall be examined and decided by the trial court, taking into account the evidence and arguments presented during the trial.
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NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 7.9 While exercising powers under Section 482 of the Criminal Procedure Code, 1973, the Court has to consider whether prima facie case is made out or not from bare reading of F.I.R.
7.10 Moreover, it is relevant to refer the judgment of this Court in the case of Varyava Abdul Vahab Mahmood versus State of Gujarat reported in 2022 LawSuit (Guj) 2845, specifically paragraphs 5, 9 are relevant, as under:
"5. From the other side, learned APP for the respondent- State as well as learned advocate for the respondent no.2 have vehemently opposed the submissions made by learned advocate for the appellant and submitted that the appellant is prima facie involved in the offence punishable under Sections 4, 4C and 5 of the Freedom of Religion At and Sections 120(B), 153(B)(1)(C), 153(A)(1), 295(A), 506(2), 466, 467 and 468 and 471 of the Indian Penal Code and Section 3(2)(5-A) of the Atrocities Act and Section 84C of the Information Technology Act, 2000. It is further submitted that the accused persons have been arrested by the Investigating Officer and the present appellant Page 21 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined is connected with each other through whatsapp conversions. It is further submitted that the present appellant is serving as Maulvi at Maddrasa, Palsana and is actively involved in the conspiracy with other co-accused persons to convert a person from particular religion into another religion by hurting feelings of a particular religion. It is further submitted that the cash amount was distributed by the present appellant. It is further submitted that during the course of investigation, it was found by the Investigating Officer that in a criminal conspiracy, the appellant has played active role in commission of the offence. It is further submitted that for conversion of the particular community people to another community, the appellant has provided financial aid. It is further submitted that for further investigation, presence of the appellant is required by the prosecution and the presence of the appellant is not found easily by the prosecution. It is further submitted that four children of the particular community were studying in a Madrasa by the present appellant. It is further submitted that as per the statement of the witnesses recorded under Section 164 of the Cr.P.C., procedure is going on. The appellant is prima facie clearly involved in the offence and his custodial interrogation is required by the Investigating Officer. Learned APP for the respondent - State has further referred the statements of Rajubhai @ Anil Page 22 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined Dahyabhai Solanki, Dharmeshbhai Chhitubhai Vasava, Vijaybhai Dhirajbhai Vasava, Udesangbhai Jesangbhai Vasava, Mukeshbhai Dilipbhai Vasava and Rohitbhai Rameshbhai Vasava and others, submitting that from all the statements of the witnesses recorded during the investigation, involvement of the present appellant is strongly established by the prosecution. Considering the seriousness of the offence as issue is affected at large with number of particular community, it is requested by learned APP for the respondent - State as well as learned R/CR.A/92/2022 CAV JUDGMENT DATED:
04/04/2022 advocate for the respondent no.2 to dismiss this appeal.
6. In the case of Sushila Aggarwal and others Vs. State (NCT OF Delhi) and another (supra), the Hon'ble Supreme Court has observed as under:
"At this stage, it would be essential to clear the air on the observations made in some of the later cases about whether Section 438 is an essential element of Article
21. Some judgments, notably Ram Kishna Balothia, (1995) 3 SCC 221 and Jai Prakash Singh, (2012) 4 SCC 379 held that the provision for anticipatory bail is not an essential ingredient of Article 21, particularly in the context of imposition of limitations on the discretion of the courts while granting anticipatory bail, Page 23 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined either limiting the relief in point of time, or some other restriction in respect of the nature of the offence, or the happening of an event. Such obsevations are contrary to the broad terms of the power declared by the Constitution Bench in Sibbia case. The larger Bench had specifically held that an "overgenerious infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.(Para 54)"
"The reason for enactment of Section 438 CrPC was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. (Para 56)"
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NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined "Application for anticipatory bail:
Consistent with the judgment in Gurbaksh Singh Sibbia, (1980) 2 SCC 565, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the corut which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (Paras 92.1 and 85.1)"
7.11 Considering the totality of the facts and circumstances of the case and the prima facie violation of Section 5 of the Gujarat Freedom of Religion Act, 2003, it is apparent that the defense raised in the present application can be examined and tested during Page 25 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined the trial. The trial appears to be justified for further proceedings to fully investigate and evaluate the alleged breach of the law. At this stage, the Court finds no compelling reason to interfere with the ongoing proceedings initiated based on the F.I.R. The defense's arguments and contentions can be appropriately addressed and adjudicated during the trial proceedings. Therefore, the Court finds no justification to grant relief by quashing the proceedings or application at this point. The trial shall continue to proceed, allowing all parties to present their evidence and arguments before the trial court to determine the case's merits based on a complete assessment of the facts and legal aspects involved in view of 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 Page 26 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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;
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 Page 27 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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 Page 28 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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 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 Page 29 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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 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 Page 30 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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 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 Page 31 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023 NEUTRAL CITATION R/CR.MA/2499/2020 JUDGMENT DATED: 05/07/2023 undefined 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."
I am of the opinion that this is not a fit case to exercise my discretion in favour of the applicant herein.
8. Accordingly, the present application is dismissed, with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 32 of 32 Downloaded on : Sat Sep 16 20:56:13 IST 2023