Gujarat High Court
Jay vs Krupaliben on 25 July, 2008
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
Print
CR.MA/8763/2008 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8763 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
JAY
JAYCHAND SARDA & 1 - Applicant(s)
Versus
KRUPALIBEN
W/O JAY SARDA & 1 - Respondent(s)
=========================================
Appearance :
MR
KISHOR M PAUL for Applicant(s) : 1 - 2.
None
for Respondent(s) : 1,
MR KT DAVE, APP for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 24/07/2008
CAV
JUDGMENT
1. This petition is preferred under Section 482 of the Code of Criminal Procedure for quashing the FIR dated 09.05.2008 registered with Bhaktinagar Police Station, Rajkot for the offences punishable under Sections 323, 498A, 506(2), 406, 420 and 114 of the IPC.
2. The learned advocate for the petitioners, Mr KM Paul submitted that on bare perusal of the FIR, the offences in which the petitioners are involved is not made out by the complainant and therefore, it is a fit case to quash the FIR. The learned advocate for the petitioners submitted that the FIR filed by the respondents is not genuine and it has been filed with ulterior motive and therefore, it requires to be set aside. The FIR was filed after an inordinate delay of two and half years and the allegations made therein are baseless and therefore, the petitioners cannot be roped in for the offences punishable under Sections 323, 498A, 506(2), 406, 420 and 114 of the IPC which are narrated in the FIR. The learned advocate for the petitioners submitted that the police has not verified the correctness or the bonafide of the complaint given by respondent No.1 and as the FIR was filed without application of mind, the same is liable to be quashed. On further perusal of the FIR, the learned advocate for the petitioners submitted that respondent No.1 had filed the FIR at the instigation of her mother and brother-in-law and the same is filed in order to extract money from the petitioners and to pressurize them. The learned advocate for the petitioners submitted that the FIR does not disclose the offences for which the petitioners have booked and therefore, the same is liable to be quashed and set aside. The learned advocate placing reliance on Section 482 of the Code of Criminal Procedure submitted that although the powers given under Sections 482 are to be exercised in a very rare and exceptional case, it is a fit case to exercise the powers under Section 482 of the Cr.P.C. and to quash the FIR produced vide Annexure-C to the petition.
3. The learned advocate for the petitioners placed reliance on the several judgments in support of the contentions made at the bar, which are as under :-
(1) Union of India Vs. Prakash P. Hinduja and another, reported in 2003(6) SCC 195.
(2) Roy V.D. Vs. State of Kerala, reported in 2000(8) SCC 590.
(3) State of Tamil Nadu Vs. Thirukkural Perumal, reported in 1995(2) SCC 449.
(4) State of Haryana and others Vs. Ch. Bhajan Lal and others, reported in AIR 1992 SC 604.
(5) Som Mittal Vs. Government of Karnataka, reported in 2008(1) GLH 493.
(6) Vijay Shekhar and another Vs. Union of India and others, reported in 2004(4) SCC 666.
(7) S.W. Palanitkar and others Vs. State of Bihar and another, reported in 2002(1) SCC 241.
(8) Netai Dutta Vs. State of West Bengal, reported in 2005(2) SCC 659.
(9) Popular Muthiah Vs. State represented by Inspector of Police, reported in 2006(3) SCC (Cri)
245.
(10) Umedsinh P. Champawat Vs State of Gujarat, reported in 2006(2) GLH 736.
4. Union of India Vs. Prakash P. Hinduja and another reported in 2003(6) SCC 195 is the judgment rendered by the Apex Court, wherein the Apex Court considered the provisions of Section 482 of the Cr.P.C. and held that Section 482 of the Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The power can, therefore, be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated the proceedings can also be quashed.
5. Roy V.D. Vs. State of Kerala, reported in 2000(8) SCC 590 is cited by the learned advocate for the petitioners in support of the submission that the Apex Court has laid down the guidelines under which the powers under Sections 482 of the Cr.P.C. can be invoked when the criminal proceedings are initiated on the basis of illicit material collected on search and arrest which are per se, illegal and vitiate the trial itself, then, the power under Section 482 of Cr.P.C. can be exercised to quash the proceedings as continuance of such proceedings would amount to abuse of process of the Court.
6. State of Tamil Nadu Vs. Thirukkural Perumal, reported in 1995(2) SCC 449 is cited by the learned advocate for the petitioners in support of the submission that the power can be exercised under Section 482 of Cr.P.C. in a sparing manner as laid down by the Apex Court in various decisions. Considering the case on hand, the Apex Court held that the High Court was not justified in evaluating the genuineness and reliability of the allegations made in the FIR or complaint on the basis of evidence collected during the investigation.
7. State of Haryana Vs. Ch.
Bhajan Lal and others, reported in AIR 1992 SC 604 is the judgment rendered by the Apex Court wherein the Apex Court considered the provisions of Section 482 of Cr.P.C. and held that if the allegations in the complaint clearly constitute cognizable offence, then, in such circumstances, quashing of FIR is not justified. The Apex Court also laid down the guidelines under which the FIR can be quashed while exercising the powers under Section 482 of Cr.P.C.
8. Som Mittal Vs. Government of Karnataka, reported in 2008(1) GLR 493 is the judgment rendered by the Apex Court, wherein the Apex Court had the occasion to consider the provisions of Section 482 of Cr.P.C. The Apex Court laid down the guidelines under which the powers under Section 482 of Cr.P.C. can be exercised and held that inherent powers under Sections 482 can be invoked with a view to secure the ends of justice.
9. Vijay Shekhar and another Vs. Union of India and others, reported in 2004(4) SCC 666 is the judgment rendered by the Apex Court wherein the Apex Court considered the Article 142(1) of the Constitution of India and held that the complaint filed before the Court of Metropolitan Magistrate, Court No.10 at Ahmedabad in Criminal Case No.118 of 2004 dated 15.01.2004 is ex-facie an act of fraud by a fictitious person and an abuse of process of Court every and any action taken pursuant to the said complaint gets vitiated and therefore, the complaint registered before the Metropolitan Magistrate, Court No.10 at Ahmedabad in Criminal Case No.118 of 2004 dated 15.01.2004 and all actions taken thereon including the issuance of bailable warrant is liable to be declared as ab-initio-void and hence, liable to be set aside.
10. In S.W. Palanitkar and others Vs. State of Bihar, reported in 2002(1) SCC 241, the Apex Court considered the provisions of Section 482 and the inherent powers of the High Court. The Apex Court considered the object and the manner of exercise of the powers by the High Court under Section 482 in the complaint made under Sections 406, 420 and 120B of the IPC, and held that if no offence was made out against the accused, then, the Magistrate committed a manifest error in issuing process and the High Court erred in not invoking its inherent powers to correct that error.
11. Netai Dutta Vs. State of West Bengal, 2005(2) SCC 659 is the judgment rendered by the Apex Court, wherein the Apex Court considered Sections 306 and 107 of the IPC which is with regard to abetment of suicide. If the basic ingredients are missing in the FIR, then in that case, the High Court should invoke the extraordinary powers under Section 482 of Cr.P.C. to quash the criminal proceedings.
12. In Popular Muthiah Vs. State represented by Inspector of Police, reported in 2006(3) SCC (Cri) 245, the Apex Court considered the inherent powers under Sections 482 and 483 of Cr.P.C. and held that the Hon'ble High Court acts ex? debito justitiae to do real and substantial justice. Apart from inherent jurisdiction, the Hon'ble High Court can exercise supervisory jurisdiction in some cases under Section 483 of Cr.P.C. and also under Article 227 of the Constitution of India.
13. Umedsinh P. Champawat Vs. State of Gujarat, 2006(2) GLH 736 is cited by the learned advocate for the petitioners in support of the submission that although it is true that the powers for quashing should be exercised sparingly and in a rare case, where it is apparent from the record of the case that the prosecution has not made out a case. However, when there is no evidence against the petitioners, then, quashing of the FIR and charge-sheet would be justified. It was further held that for totally illegal implication in the offence, the prosecuting agency can be held liable for prosecution and for that the person so falsely implicated has to take action. Thus, the learned advocate for the petitioners submitted that considering the ratio laid down in the above-mentioned judgment, it is a fit case to quash the FIR produced at Annexure-C to the petition.
14. Mr KT Dave, learned Additional Public Prosecutor representing the State submitted that on bare perusal of the FIR produced at Annexure-C to the petition, it discloses the offences punishable under Sections 323, 498A, 506(2), 406, 420 and 114 of the IPC. The learned advocate for the petitioners submitted that although the powers under Section 482 of Cr.P.C. are wide in nature but the same is required to be exercised sparingly and in exceptional cases. If the FIR, prima facie, discloses the offences alleged against the petitioners, then, the same cannot be quashed as it would stall the investigation at the nascent stage. Thus, the learned APP submitted that considering the provisions of Section 482 of Cr.P.C., it is not a fit case to exercise the discretion in favour of the petitioners and therefore, the petition is liable to be dismissed.
15. I have heard the learned Advocate for the petitioners, Mr Paul and Mr KT Dave, learned APP at length and in great detail. I have perused the averments made in the petition and the annexures which are produced along with the petition. The FIR produced at Annexure-C is carefully taken into consideration by me. On perusal of the FIR, the petitioners are booked for the offences punishable under Sections 323, 498A, 506(2), 406, 420 and 114 of the IPC. The FIR was given by Krupaliben Jay Sarda on 19.11.2005. It has been strenuously contended by the learned advocate for the petitioners that the FIR was given after an inordinate delay of two and half years but when the offence punishable under Section 498A is alleged to have been committed by the petitioners, then, the same is a continuance offence.
16. In view of the aforesaid facts and circumstances, the FIR, in my considered view, cannot be quashed on the ground of inordinate delay. On further perusal of the FIR, the offences are alleged against the petitioners have been made out. When the FIR discloses the offences alleged against the petitioners, then the same cannot be quashed because it would stifle the investigation at the nascent stage.
17. Section 482 of the Cr.P.C.
gives wide powers to the Court to quash the FIR in a rare and exceptional circumstances. However, the powers conferred to the Hon'ble High Court under Section 482 of Cr.P.C. is required to be exercised with great care and circumspection. Considering the aforesaid facts and circumstances and keeping in view the provision contained in Section 482 of Cr.P.C., this is not a fit case to exercise the powers under Sections 482 of Cr.P.C. as no case is made out by the petitioners for invoking the powers under Section 482 of Cr.P.C.
18. I have also considered the judgments cited by the learned advocate for the petitioners and there is no dispute about the ratio or proposition laid down in those judgments. However, considering the FIR at Annexure-C to the present case, since the offences alleged against the petitioners have been, prima facie, disclosed in the FIR, it is not a fit case to invoke powers of quashing under Section 482 of Cr.P.C.
19. For the foregoing reasons, the application fails and the same is summarily dismissed.
(H.B. Antani, J.) mrpandya* Top