Gujarat High Court
Yuvrajsinh Kishorsinh Gohil vs State Of Gujarat on 3 February, 2025
NEUTRAL CITATION
R/SCR.A/1554/2025 ORDER DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1554 of 2025
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YUVRAJSINH KISHORSINH GOHIL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. PARAM. S. DAVE(14217) for the Applicant(s) No. 1
MS. SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/02/2025
ORAL ORDER
1. The present petition is filed for seeking the following reliefs:
"(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 F.I.R. being C.R. No.11189006241082 of 2024 registered at Tankara Police Station, District Morbi, on 12.12.2024, for the offence U/Ss. 199, 233, 228, 201, 336, 338, 340, 308 (2), 3 (5), 61 and 54 of Bhartiya Nagrik Sanhita; 2023 read with Section 7, 12, 13(1) (a) and 13 (2) The Prevention of Corruption; 1988 at Annexure-A and all other subsequent and consequential proceedings qua the present petitioner arising from the impugned FIR.Page 1 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025
NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined (C) Pending admission, final hearing and disposal of the present petition, stay the further proceedings as well direct the investigation officer to not take any coercive action in connection with the F.I.R. being C.R. No. 11189006241082 of 2024 registered at Tankara Police Station, District Morbi, on 12.12.2024, for the offence U/Ss. 199, 233, 228, 201, 336, 338, 340, 308 (2), 3 (5), 61 and 54 of Bhartiya Nagrik Sanhita; 2023 read with Section 7, 12, 13(1) (a) and 13 (2) The Prevention of Corruption; 1988 at Annexure-A and all other subsequent and consequential proceedings qua the present petitioner arising from the impugned FIR;
(D) This Hon'ble Court may be pleased to grant any other and further relief/s, as may be deemed just and proper in the interest of justice."
2. Heard Mr. C.B. Upadhyay, learned advocate with Mr. Param Dave, learned advocate for the petitioner and Ms. Shruti Shah, learned APP for the respondent -
State.
3. Mr. C.B. Upadhyay, learned advocate with Mr. Param Dave, learned advocate for the petitioner has submitted that on bare reading of the FIR, it transpires that the FIR is having nothing but a patent misuse of machinery and the reasons stated in the FIR states the Page 2 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined oblique motive of the complainant. He has further submitted that informant - complainant in the complicity with the machinery has given the complaint for his own wrongdoing and has given such so called incident as complexion of criminal offence. He has further submitted that there cannot be any FIR against the police officer, who is supposed to discharge his duty. He has further submitted that the proceedings, which are initiated by way of present FIR are manifestly attended and not only with malafide intention but also a malicious proceeding is instituted with an ulterior motive for wracking vengeance. Furthermore, he has submitted that offences, which are allegedly mentioned in the FIR, are contradictory to each other. Furthermore, he has submitted that in the facts of the case, the provisions of the Prevention of Corruption Act cannot be applied and if those provisions are applied then the case of extortion, which is mentioned in the complaint, cannot at all be considered as available. He has further submitted that there is difference between theft and extortion.
Furthermore, he has submitted that looking to the facts of the case in the FIR, the accused No.4 has deliberately concealed his identity at the time of arrest when the Page 3 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined initial raid was carried out by the present petitioner being a police officer thereafter, has made issue of identity. With the help of some other police officers and with a view to wracking vengeance against the present petitioner, the present complaint has been preferred by the present complainant. He has further submitted that in the background of this factual aspects and considering the offences as mentioned in the FIR, no offence is made out. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the cases of
(i) Mohammed Ibrahim and Others vs. Stateof Bihar and Another reported in (2009) 8 SCC 751, (ii) Usha Chakraborty and Another vs. State of West Bengal and Another reported in (2023) 15 SCC 135, and (iii) Salib Alias Shalu alias Salim vs. State of U.P. and Others reported in 2023 SCC OnLine SC 947, and has submitted that the proceedings are required to be quashed by exercising powers under Section 582 of the Bharatiya Nyan Sanhita, 2023 as the basic requirement of sections, which are alleged in the FIR, are not satisfied and continuation of the proceedings will amount to abuse of process of law. Hence, he has prayed for interference of this Court.
Page 4 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined 4.1 Ms. Shruti Shah, learned APP for the respondent -
State, has strongly opposed the submissions made at the bar by the learned advocate for the petitioner. She has submitted that the petitioner, being a Police Inspector of the Tankara Police Station at the relevant time, carried out a raid at the hotel, during which some of the persons were arrested for engaging in gambling, and offences were duly registered for the gambling activity.
However, it transpires that the petitioner became involved in unlawful activity by demanding a certain amount from those caught red-handed at the gambling location. Ms. Shah, learned APP has further submitted that the record reveals the petitioner received a substantial amount of money. Initially, Rs. 12 lakhs was shown as the amount recovered; later, Rs. 41 lakhs was also demanded and received, and subsequently, Rs. 10 lakhs were also obtained from the accused persons by misusing his powers as a Police Officer. This clearly indicates the involvement of the petitioner in the alleged offence. She has further stated that when the Director General of Police received the complaint, he assigned the investigation to the State Monitoring Cell. The DIG of Page 5 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined the State Monitoring Cell personally visited the site of the incident and the surrounding areas. After conducting the necessary inquiries, he found sufficient evidence, leading to the registration of the impugned FIR against the petitioner under the provisions of the Bharatiya Nyan Sanhita, 2023, and the Prevention of Corruption Act. She has further argued that serious allegation of extortion is evident from a bare reading of the FIR, given that the petitioner misused his authority while discharging his duties as a police officer and, with the intention of providing benefits to the accused, demanded and received money. She also noted that, based on the materials in the investigation papers, it appears the petitioner attempted to manipulate the investigation of the earlier gambling raid by changing the mobile numbers and names of the accused, which is a serious matter. Therefore, considering the evidence, it is clear that an offence under the Prevention of Corruption Act is made out, based on a simple reading of the FIR as well as other materials and statements recorded by the State Monitoring Cell during the investigation. This includes statements from all involved parties, including the hotel staff, police officers, and Panchas present Page 6 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined during the raid. These facts strongly connect the petitioner to the offence as alleged in the FIR, and all the ingredients of Sections 199, 233, 228, 201, 336, 338, 340, 308(2), 3(5), 61, and 54 of the Bharatiya Nyan Sanhita, 2023, read with Sections 7, 12, 13(1)(a), and 13(2) of the Prevention of Corruption Act, 1988, are satisfied.
4.2 She further submitted that the judgments relied upon by the petitioner are not helpful to the facts of the present case, as the facts of those cases are different.
She has submitted that the petitioner and other individuals involved in the illegal activities as police members have been suspended following the registration of the FIR. Despite more than a month having passed since the FIR's registration, the petitioner has not co-
operated in the investigation process by not appearing before the police authorities. Therefore, she has argued that since prima facie case has been established, the Court should refrain from exercising its powers under Article 226/227 of the Constitution of India, as well as under Section 582 of the Bharatiya Nyan Sanhita, 2023 as such powers should be exercised sparingly when the Page 7 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined Court finds no offence is made out from the bare reading of the complaint or when the continuation of proceedings would amount to an abuse of the legal process. In this case, none of these conditions are satisfied, and thus, the Court should not exercise its powers. Hence, she has prayed that the present petition may be dismissed.
5.1 I have considered the rival submissions made at the bar. Prima facie, it transpires from the FIR and other materials available on record that, on 26.10.2024, a raid was carried out at Comfort Resort, Room No. 105, near Tankara, by the present petitioner and other police officers. At that relevant time, the present petitioner was serving as Police Inspector at Tankara Police Station.
During the course of the raid, nine persons were found at the scene of the incident. It further transpires that the present petitioner used his powers to demand an illegal amount from the accused persons and also received Rs. 12 lakhs from one Sumit Akbari, who is a friend of the accused, Bimal Padariya. Subsequently, Rs.
41 lakhs was also received, and later, an additional Rs.
10 lakhs in cash was received from the relatives of the Page 8 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined accused persons. Accordingly, he has prepared the necessary papers for the investigation by changing the names and mobile numbers of the persons involved. It also transpires from the investigation papers that the petitioner is not co-operating with the process of investigation, despite the FIR being filed on 12 December, 2024. Although he is a Police Officer, he is absconding and is not cooperating with the police machinery in any manner. The police have also filed a report before the concerned Magistrate regarding this.
Furthermore, there are serious allegations made under the provisions of Sections 199, 233, 228, 201, 336, 338, 340, 308(2), 3(5), 61, and 54 of the Bharatiya Nyan Sanhita, 2023, read with Sections 7, 12, 13(1)(a), and 13(2) of the Prevention of Corruption Act, 1988, which are as follows:
"199. Public servant disobeying direction under law. Whoever, being a public servant,-
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter; or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which Page 9 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined he shall conduct such investigation; or
(c) fails to record any information given to him under sub-
section (1) of section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in relation to cognizable offence punishable under section 64, section 65, section 66, section 67, section 68, section 70, section 71, section 74, section 76, section 77, section 79, section 124, section 143 or section 144, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine. [Similar to Section 166A from Old IPC-Also Refer ]
233. Using evidence known to be false.
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.
[Similar to Section 196 from Old IPC-Also Refer ]
228. Fabricating false evidence.:-
Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an Page 10 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined erroneous opinion touching any point material to the result of such proceeding is said "to fabricate false evidence". Illustrations.
(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z's handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search. A has fabricated false evidence.
[Similar to Section 192 from Old IPC-Also Refer ]
201. Public servant framing an incorrect document with intent to cause injury.
Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
[Similar to Section 167 from Old IPC-Also Refer ] Page 11 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined
336. Forgery.
(1) Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. [Similar to Section 463 from Old IPC-Also Refer ] (2) Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. [Similar to Section 465 from Old IPC-Also Refer ] (3) Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
[Similar to Section 468 from Old IPC-Also Refer ] (4) Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
[Similar to Section 469 from Old IPC-Also Refer ]
338. Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable Page 12 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. [Similar to Section 467 from Old IPC-Also Refer ]
340. Forged document or electronic record and using it as genuine.
(1) A false document or electronic record made wholly or in part by forgery is designated a forged document or electronic record.
[Similar to Section 470 from Old IPC-Also Refer ] (2) Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
[Similar to Section 471 from Old IPC-Also Refer ]
308. Extortion.
(2) Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Page 13 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined [Similar to Section 384 from Old IPC-Also Refer ]
3. General explanations.-
(5) When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
[Similar to Section 34 from Old IPC-Also Refer ]
61. Criminal conspiracy.-
(1) When two or more persons agree with the common object to do, or cause to be done(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
[Similar to Section 120A from Old IPC-Also Refer ] (2) Whoever is a party to a criminal conspiracy,(a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence;
(b) other than a criminal conspiracy to commit an offence Page 14 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
[Similar to Section 120B from Old IPC-Also Refer ]
54. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
[Similar to Section 114 from Old IPC-Also Refer ] Prevention of Corruption Act.
7. Offence relating to public servant being bribed. [Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Any public servant who,-
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in Page 15 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
12. Punishment for abetment of offences. [Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of Page 16 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined that abetment, shall be punishable with imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine.]
13. Criminal misconduct by a public servant.
- [(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
5.2 Considering the nature of the allegations made in the present FIR, and the report tendered by the learned APP, which has been produced for the perusal of this Court, particularly the Muthammal Receipt, it is clear that some mobile numbers, as well as the names of the mobile instrument and the names of the persons from whom such instruments were recovered, have been altered by the petitioner, who was in-charge of the Tankara Police Station and under whose leadership, the raid was carried out. It also transpires that there is a Page 17 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined screenshot of the illegal demand made by the present petitioner and his aide, all of whom are suspended.
Therefore, considering the above, it is found that, prima facie, case is made out.
5.3 It is also relevant to note that the complaint was received to the Director General of Police from the media and other persons. Pursuant to this, the Director General of Police directed the Deputy Inspector General of the State Monitoring Cell to carry out the necessary inquiry and investigation regarding the allegations of extortion and some mischief played by the raiding party. After recording the necessary statements of the raiding party, hotel staff, the accused persons, who were caught red- handed at the time of the incident, and the persons who gave money to the present petitioner, the FIR was registered on 12.12.2024 under the provisions of Sections 199, 233, 228, 201, 336, 338, 340, 308(2), 3(5), 61, and 54 of the Bharatiya Nyay Sanhita, 2023, read with Sections 7, 12, 13(1)(a), and 13(2) of the Prevention of Corruption Act, 1988. Therefore, when prima facie material is available on record to connect the present petitioner to the offence, it cannot be said that no prima Page 18 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined facie case is made out. Moreover, considering the conduct of the petitioner, who happens to be a Police Inspector and who has allegedly tried to misuse his position to accept gratification in exchange for doing some favour in favour of the accused is required to be viewed very seriously, especially considering that he is not cooperating with the investigation process even after almost 46 days since the lodging of the FIR by the Police Authority.
5.4 Considering the fact that there is sufficient material available on record, it cannot be said that the continuation of the proceedings will amount to abuse of the process of law in any manner. The Court should exercise its powers very sparingly when it comes to quashing such criminal prosecutions, considering the serious nature of the allegations and considering the fact that prima facie material is available on record against the present petitioner, I am of the view that no powers should be exercised in favour of the present petitioner.
5.5 At this stage, it would be fruitful to refer to the recent decision of the Hon'ble Apex Court in the case of Somjeet Mallick versus State of Jharkhand and others Page 19 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined reported in (2024) 10 SCC 527, more particularly Paras :
15, 17 and 18 thereof, which read as under :
" 15. Before we proceed to test the correctness of the impugned order, we must bear in mind that at the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry, as the case may be, are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, as the case may be, is made out. The correctness of the allegations is not to be tested at this stage.
17. It is trite law that FIR is not an encyclopaedia of all imputations. Therefore, to test whether an FIR discloses commission of a cognizable offence what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed Page 20 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined or not. At this stage, the Court is not required to ascertain as to which specific offence has been committed.
18. It is only after investigation, at the time of framing charge, when materials collected during investigation are before the Court, the Court has to draw an opinion as to for commission of which offence the accused should be tried. Prior to that, if satisfied, the Court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR."
5.6 Furthermore, in 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 Page 21 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined 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;
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 Page 22 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined 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 over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;Page 23 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025
NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined
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 Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
Page 24 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined
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 considered by the High Court while passing an interim order in a quashing petition in exercise of Page 25 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined 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 parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India Page 26 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025 NEUTRAL CITATION R/SCR.A/1554/2025 ORDER DATED: 03/02/2025 undefined 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 view of above observations as well as facts and and circumstances of the case, this Court does not find any merit at this stage to quash the impugned FIR.
This petition, therefore, needs to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 27 of 27 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:04:59 IST 2025