Gujarat High Court
Ghanchi Ramiz Mohamahadbhai vs State Of Gujarat on 10 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/18479/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18479 of 2018
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GHANCHI RAMIZ MOHAMAHADBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR SV RAJU, SR. ADV. with JAYDIPSINH G GADHAVI(9422) for the
PETITIONER(s) No. 1
MR ZUBIN F BHARDA(159) for the PETITIONER(s) No. 1,2,3
MR YATIN OZA, SR. ADV. with MR BHAVESH B SARODE(6454) for the
RESPONDENT(s) No. 2
MS MAITHILI MEHA, ADDL.PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/12/2018
ORAL ORDER
1 Three applicants were original accused Nos.1,3 and 4 in First Information Report being C.R.No.I-186 of 2018 registered with Kadi police station, District: Mehsana for the offences punishable under sections 397, 395, 307, 324, 323, 342, 147, 148 and 149 of the Indian Penal Code and section 135 of the Gujarat Police Act seeking quashment of the First Information Report.
2 According to the applicants arraigning them as accused in the said First Information Report is manifestly intended with mala fide intention and is maliciously instituted with an ulterior motive of spitting the applicants out of the private and personal grudge savoured by the complainant, which is also for harassing the applicants.
3 Brief facts leading to the present petition are as follows:-
Page 1 of 11R/CR.MA/18479/2018 ORDER 3.1 The complainant Arbaz Aiyubmiya Shaikh in his First Information
Report dated 14.09.2018 alleged that he is at present residing at village: Kadi, Taluka: Kadi District: Mehsana. He is a rickshaw driver by profession. On 10.09.2018 one Mr.Mohamahad Bakri along with other persons assaulted his mother as well as his brother and the injured had been removed to Bhagyoday hospital, Kadi. It is further his case that on 11.09.2018 at around 1:15 p.m., the complainant was heading to Bhagyoday Hospital on his Active two wheeler and when the complainant reached nearby Mamlatdar office and Patel Xerox centre, accused No.1 Ganchi Ramiz ,who was having with him a knife, accused No.2 Ghanchi Umar, who was having with him a sickle and accused No.3 Ghanchi Sarfaraz Mohamadbhai, accused No.4 Ghanchi Momahad Daaglo and accused No.5 Ghanchi Shebaz Ganibhai, who all were having sword, came there and stopped the complainant and accused No.1 inflicted knife blow on the right side of the stomach thereafter, accused No.2 hit the sickle on his right leg near the knee, thereafter Sarfaraz accused No.3 inflicted sword injuries blows in his right hand and Homhad Dagholo accused No.4 inflicted sword injury on his hands. Having stabbed on different parts of his body, they took away Rs. 10,000/- and cellphone of the mother of the complainant. Due to the injuries sustained during the assault, the complainant became unconscious and on 14.09.2018, upon regaining consciousness, the complainant came to know that Rehanaben had taken him to Bhagyoday hospital for treatment and from there he was taken to V.S. Hospital, Ahmedabad. The complainant was, thereafter, operated for stomach injuries sustained during the assault. Thereafter, First Information Report came to be registered against the accused persons.
3.2 It is the case of the applicants that the first informant was assaulted
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R/CR.MA/18479/2018 ORDER
and had sustained injuries, but applicants No.1,3 and 4, who are applicants have been deliberately involved. Their presence is very much there at Bhagyoday hospital and CCTV footage of the shop belonging to applicant No.,2 which is a mobile shop and which is consistently monitoring against theft perception, had reflected showing presence of applicant No.2 in those hours at the shop.
3.3 Mr. S.V.Raju, learned Senior Advocate appearing with learned advocate Mr. Jaydipsinh Gadhavi and learned advocate Mr. Zubin Bharda for the applicants, has fervently urged that the Court needs to protect the common citizen against false implication and the First Information Report is apparently false and devoid of any merit and truth and it is maliciously instituted against the applicants and powers under section 482 of the Criminal Procedure Code deserves to be exercised. It is further urged that certificate from Bhagyoday hospital also indicates that CCTV footage details provide that clearly false allegations are made in the First Information Report and presence of both applicants No.1 and 3 has been covered in CCTV camera of Bhagyoday hospital when the complainant is indicating their presence near Mamlatdar officer. He has also further urged that applicants are absolutely innocent. They were not present at the scene of offence and, thus, malicious prosecution cannot be permitted against innocent persons. Earnest request is made to continue protection.
3.4 Mr. Oza, learned senior advocate appearing with learned advocate Mr. Bhavesh Sarode for the respondent-complainant contested this petition on the ground that this is too prematured a stage for the Court to intervene. It is urged that parameters are laid down by the Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others, AIR 1992 SC 604. The case of the present Page 3 of 11 R/CR.MA/18479/2018 ORDER applicants does not fit into any of the criterion laid down by the Apex Court. It is also urged by learned Senior Advocate that merely on the ground of report of CCTV footage, at this stage, the Court cannot quash the First Information Report when the first informant, who is himself injured, has spoken of involvement of the present applicants, who were armed with lethal weapons. The complainant was hospitalized for nearly 75 days and is still not back to normalcy. It is urged that Investigating Officer shall have to carry out investigation in depth and apart from the present complainant there are other eye-witnesses, who have spoken of the involvement of these applicants. Reliance is also placed on the decision of the Apex Court in the case of Dinesh Chandubhai Patel vs. Stat of Gujarat, AIR 2018 SC 314.
3.5 Ms. Maithili Mehta, learned Additional Public Prosecutor for respondent-State has urged not to interfere at this stage. According to her, the presence of these applicants at the time of incident at the scene of offence has been specified by other witnesses as well. She has urged that the investigation is going on at a crucial stage and this is not a stage where the Court should intervene and exercise inherent powers of the Court.
4 Having thus heard both the sides and on perusal of the pleadings and the material on record, more particularly,the papers of investigation, this Court notices that the entire case of the present applicants for seeking quashment of the First Information Report lodged with Kadi police station is based on the report of CCTV footage, more particularly, showing it by the clock-wise time maintained by Bhagyoday hospital and also of CCTV footage reflecting the clock at 13:13 hours to 13:34 hours at the shop of applicant No.2.
5 From the papers of investigation, it is quite clear that Investigating Officer has not completed recording of statement of those witnesses, Page 4 of 11 R/CR.MA/18479/2018 ORDER who have maintained the CCTV footage and also of others, who may have been present when the incident took place. The maintaining of right clock at the time of the said incident both at the hospital as well as at the shop of applicant No.2 shall need to be examined throughly by the Investigating Officer. The First Information Report itself is revealing that at around 1:15 p.m. when respondent No.2 had started from his residence on his Honda Activa to visit Bhagyoday hospital where his brother and mother were hospitalized the previous day of the incident, the distance as is being given from his residence to Bhagyoday hospital is nearly 1 k.m. and on his two wheeler, it may take about less than two minutes as per Google map.
6 Learned Additional Public Prosecutor, on instructions, submits that if there is heavy rush in the market, it may also take some time i.e. 10 minutes.
7 Without entering into these aspects at this stage, this Court is of the opinion that the investigation is at a vital stage, where all these crucial aspects shall have to be examined thoroughly by the Investigating Officer and due investigation shall need to take place. This is a case where respondent No.2 had sustained serious injuries with lethal weapons. The date of occurrence as shown in the First Information Report is of 11.09.2018 at 13:30 hours and the incident is reported on 14.09.2018 and registered on the very day being C.R.No.I- 186 of 2018 at Kadi police station. It is to be noted that respondent No.2, as per the case of the prosecution, had been unconscious and and on regaining consciousness, First Information Report has been registered where timing of the occurrence is shown as 1:30 p.m. in the First Information Report. A Vardhi has been sent from V.S. Hospital on 11.09.2018 to Kadi police station where also reference is made of the occurrence at 1:30 p.m.. he had been removed to V.S.Hospital at 16:02 hours in Emergency ward with serious injuries having been sustained by the Page 5 of 11 R/CR.MA/18479/2018 ORDER complainant naming all the applicants, this surely is not the case in these circumstances for this Court to quash the complaint. 8 Apt would be refer to the decision of Dinesh Chaudubhai Patel(supra), where the Court has held and observed that whether the factual contents of First Information Report disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the First Information Report and prima facie material, if any, requiring no proof. Relevant paragraphs are reproduced as under:-
"30) The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
31) At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
32) In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
33) The very fact that the High Court in this case went into the minutest details in relation to every aspect of the case and devoted 89 pages judgment to quash the FIR in part lead us to draw a conclusion that the High Court had exceeded its powers while exercising its inherent jurisdiction under Section 482 of the Code. We cannot concur with such approach of the High Court.
34) The inherent powers of the High Court, which are obviously not Page 6 of 11 R/CR.MA/18479/2018 ORDER defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here."
9 Reference is also made of the case of Parbatbhai Aahir @ Parbatbhai vs. State of Gujarat reported in (2017) 9 SCC 641, where the Apex Court has summarized the prepositions discussing the broad principles emerging from the precedents in the case of exercise of powers under section 482 of of the Criminal Procedure Code, which is necessarily to be exercised for preventing the abuse of process of any Court and to secure the ends of justice. Relevant paragraphs are reproduced hereunder:-
"13 The same principle was followed in Central Bureau of Investigation v Maninder Singh4 by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to the power under Section 482:
"...In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved."
14 In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley5, the court rejected the submission that the first respondent was a 4 (2016) 1 SCC 389 5 (2016)1 SCC 376 woman "who was following the command of her husband" and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:
"... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an Page 7 of 11 R/CR.MA/18479/2018 ORDER offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score..." "...A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system..." 15 The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not Page 8 of 11 R/CR.MA/18479/2018 ORDER private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute.
They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and
(ix) above. Economic offences involving the financial and economic well- being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
16 Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations Page 9 of 11 R/CR.MA/18479/2018 ORDER in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code."
10 Considering the Vardhi sent from Bhagyoday hospital, the First Information Report mentioned hereinabove and other papers of investigation, this Court is the opinion that the First Information Report, thus, discloses prima facie commission of various cognizable offences.
Therefore, the application deserves to be dismissed for having been preferred at a prematured stage. These serious allegations do require thorough investigation, which is going on and hence this application is not to be entertained.
11 At this stage, request is made by the learned Senior Advocate Mr. Raju to continue protection granted by this Court, which had been conveyed to the Investigating Officer orally. Bearing in mind the disclosure of the names by respondent complainant himself and other witnesses, whose statements have been recorded by the Investigating Officer, this Court does not deem it appropriate to accede to such a request.
Page 10 of 11R/CR.MA/18479/2018 ORDER 12 If the applicants however approach any Court for their personal
protection, opinion and observations of this Court shall not come in their way.
13 Application stands disposed of accordingly.
(MS. SONIA GOKANI, J. ) SUDHIR Page 11 of 11