Gujarat High Court
Maheshbhai Kalyanjibhai Vasant vs State Of Gujarat on 12 April, 2024
NEUTRAL CITATION
R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 256 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MAHESHBHAI KALYANJIBHAI VASANT & ANR.
Versus STATE OF GUJARAT & ANR.
========================================================== Appearance:
MR JAL UNWALA, SR. ADVOCATE with MR DV KANSARA(7498) for the Applicant(s) No. 1,2 MR HP BAXI(9459) for the Respondent(s) No. 2 MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 12/04/2024 CAV ORDER [1.0] RULE returnable forthwith. With the consent of learned Counsel appearing for respective parties, present petition is taken up for final hearing today.
[2.0] By way of present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioners Page 1 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined have prayed to quash and set aside the FIR being CR No.11202009212117 of 2021 registered with City 'B' Division Police Station, District Jamnagar for the offences punishable under Sections 120(B), 406, 420, 465, 468 and 471 of the Indian Penal Code, 1860 (for short "IPC") [3.0] The brief facts necessary for adjudication of the present petition are as under:
[3.1] The petitioner No.1 is the real brother of respondent No.2 - original complainant and petitioner No.2 is son of petitioner No.1 and nephew of respondent No.2 herein. That, three families of the brothers i.e. petitioner No.1, Mr. Vinodrai Kalyanjibhai Vasant (deceased) and respondent No.2 herein and their family members have been in a joint family business as fleet carriers, transporters etc. under various partnership firms and two private limited companies, which are still operational.
[3.2] There arose a family dispute between the families of petitioner No.1, respondent No.2 and family members of deceased brother in the year 2017 resulting into filing of civil suits and complaints against each other. In the year 1995, several trucks were purchased in the individual names of family members of petitioners and complainant. Pursuant to the family dispute with regard to family properties and business, respondent No.2 herein earlier approached Superintendent of Police, Jamnagar by filing a written complaint, however the LCB Police, Jamnagar vide report dated 12.02.2020, opined that no Page 2 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined offence was made out and hence, no FIR was registered.
[3.3] Thereafter, the respondent No.2 herein again filed a complaint being Criminal Inquiry No.25/2021 making identical allegations seeking police investigation under Section 156(3) of the CrPC. However, considering the issue of delay and pending civil disputes between the parties, learned 4th Additional Chief Judicial Magistrate, Jamnagar vide order dated 07.06.2021 was pleased to reject the prayer of respondent No.2 for police investigation under Section 156(3) of the CrPC and directed respondent No.2 to remain present on 30.06.2021 for verification under Section 200 of the CrPC. The said order dated 07.06.2021 was assailed by the respondent No.2 herein before the Sessions Court, Jamnagar by way of filing Criminal Revision Application No.60/2021, which also came to be dismissed on 15.05.2022.
[3.4] Further, respondent No.2 initiated proceedings under Gujarat Land Grabbing (Prohibition) Act, 2020 against the petitioners and upon considering the report of competent committee under the Gujarat Land Grabbing (Prohibition) Act, 2020 and pendency of civil suit with regard to the very property, the Deputy Collector, Jamnagar disposed of the application of respondent No.2 vide order dated 29.09.2021.
[3.5] The respondent No.2 filed a purshis for withdrawal of Criminal Inquiry No.25/2021 which was accepted by the learned 4th Additional Chief Judicial Magistrate and Criminal Inquiry No.25/2021 was disposed of vide order dated 30.12.2021 and on Page 3 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined the very next day i.e. on 31.12.2021, respondent No.2 herein filed the impugned FIR by suppressing the vital and important facts of pending litigation and orders passed by competent criminal court.
Hence, the present petition.
[4.0] Heard learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Mr. D.V. Kansara for the petitioners, learned APP Mr. Manan Mehta for respondent No.1 - State of Gujarat and learned advocate Mr. H.P. Baxi for respondent No.2 - original complainant and also considered the written submissions filed on behalf of the petitioners as well as respondent No.2.
[5.0] Learned Senior Advocate Mr. Jal Unwala for the petitioners has submitted that the impugned FIR is nothing but an abuse of process of law as the alleged offences took place way back in the year 1995 and the impugned FIR is filed belatedly after a period of 26 years. Prior to registration of the impugned FIR, the complainant had filed an application on 12.02.2020 before the SP, Jamnagar however the same was not registered as an FIR. Then, respondent No.2 filed a private complaint being Criminal Inquiry No.25/2021 and the learned 4 th Additional Chief Judicial Magistrate by assigning reason for non-issuance of any proceeding under Section 156(3) of the CrPC, matter was kept for police report exercising the powers under Section 210 of the CrPC. Then, the police has submitted a report that no offence is made out. Considering the aforesaid fact, after recording the verification under Section 200 of the CrPC and the learned ACJM Page 4 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined has been pleased to pass an order to keep the matter for inquiry under Section 202 of the CrPC. Being aggrieved and dissatisfied, respondent No.2 preferred Criminal Revision Application No.60/2021 which also came to be dismissed on 15.06.2022. During the pendency of the aforesaid criminal revision application, respondent No.2 withdrew Criminal Inquiry No.25/2021 on 30.12.2021 and on the very next day i.e. on 31.12.2021, respondent No.2 filed the impugned FIR. Therefore, the impugned FIR is nothing but gross abuse of process of Court.
Even, the petitioner No.1 and complainant are real brothers and petitioner No.1 is aged 78 years and no offence is made out. Even, the learned ACJM by assigning reasons come to conclusion that no cognizable offence being made out. Hence, the learned ACJM has been pleased to pass an order to dismiss the complaint filed under Section 156(3) of the CrPC. Though, suppressing the aforesaid fact, proceeding of revision application also continued and even during the pendency of revision application and earlier complaint sent for investigation under Section 156(3) of the CrPC came to be dismissed and suppressing the aforesaid facts, the impugned FIR is filed. Hence, he has requested to allow the present petition as no any evidence is available on record and present proceeding is nothing but abuse of process of law. To buttress his arguments, learned Senior Advocate has relied on the decision dated 23.12.2022 of the Uttarakhand High Court in the case of Lt. Colonel (Retd.) Balraj Singh Lamba & Anr. vs. State of Uttarakhand and Anr. rendered in Criminal Revision Application No.201/2013.
Page 5 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined [5.1] Further, facts of the case clearly demonstrate that the entire dispute is of civil in nature and no criminality has been committed by the present petitioners. He has submitted that in the background of the provisions of section 405 IPC which defines criminal breach of trust and section 415 of the IPC which defines cheating, none of the ingredients of the offences punishable under Sections 406 and 420 of the IPC exist in the impugned FIR. In support of his submission, he has relied on the decisions of the Hon'ble Supreme Court in the case of Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1 and Hotline Teletubes and Components Ltd. vs. State of Bihar reported in (2005) 10 SCC
261. Making above submissions he has requested to allow the present petition.
[6.0] Learned APP has submitted a report dated 05.04.2024 addressed by Police Sub Inspector, City 'B' Division Police Station, Jamnagar, which is taken on record and submitted that on 17.10.2019, one complaint was received wherein the then PSI has submitted the report of recording of evidence of witnesses and person working with the firm and submitted that due to dispute qua financial transactions in connection with partnership transport business, the complaint came to be filed and no offence is committed and hence, submitted report dated 12.02.2020 to file the complaint, then approached the learned Magistrate and then complaint came to be withdrawn and impugned FIR came to be filed and during the investigation it Page 6 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined revealed that the petitioners have received the money. Considering the aforesaid fact, the Police Inspector has registered the complaint. Perusing the aforesaid fact, it also reveals that when learned ACJM has declined to pass any order under Section 156(3) of the CrPC and matter was kept for inquiry under Section 202 of the CrPC. Simultaneously, the Police Inspector, City 'B' Division Police Station Mr. K.J. Bhoy conducted a parallel inquiry and then registered the complaint on the very next day after the withdrawal of Criminal Inquiry No.25/2021. Hence, he has requested to pass appropriate order.
[7.0] Learned advocate Mr. H.P. Baxi for respondent No.2 has vehemently opposed the present petition and submitted that prima facie offence is made out. Accused persons have committed the offence and in this regard complaint to be filed as earlier SP, Jamnagar had not ordered to respective police station to lodge the complaint and respondent No.2 was compelled to approach the Court. Once the cognizable offence is disclosed then it is the duty of the police to register an FIR and in support of his submission, he has relied on the decision of the Hon'ble Supreme Court in the case of Lalita Kumari vs. State of Uttar Pradesh reported in (2014) 2 SCC 1. Further, he has submitted that earlier the complaint came to be filed but due to peak of COVID-19 pandemic in the year 2021 and as respondent No.2 is residing at Mumbai, and was under various age related ailments, he could not remain personally present before the Court on 30.06.2021 and the order of limitation came to be extended by Page 7 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined the Hon'ble Supreme Court vide Suo Moto Order during the COVID-19 pandemic upto 28.02.2022 and same was further extended from time to time and therefore, question of limitation does not arise. As COVID-19 pandemic was hanging, the complainant withdrew the complaint filed by him which was sent for police investigation on 30.12.2021. Earlier complaint is also not dismissed and hence, present impugned FIR is not a second complaint. Further, a report was submitted by the Investigating Officer which clearly revealed that vehicles / trucks are wrongly transferred and documents have been forged. The trucks of the original complainant were seized in connection of the offence. The Investigating Officer has submitted the report before the learned ACJM, Jamnagar that muddamal trucks are of the ownership of the respondent No.2 and these trucks were illegally sold to the witnesses. The Investigating Officer has also collected the specimen signature and sent to FSL and the report of the FSL is awaited and hence, he has requested to dismiss the present petition as at this stage mini-trial is not permissible and he has relied on the decision of the Hon'ble Supreme Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra & Others reported in 2021 SCC OnLine SC 315; Central Bureau of Investigation v. Aryan Singh reported in 2023 SCC OnLine SC 379 and Supriya Jain vs. State of Haryana reported in 2023 LiveLaw (SC) 494. Further, the impugned FIR is not filed with ulterior motive and is not a second complaint. Hence, he has requested to dismiss the present petition.
Page 8 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined [8.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for respective parties.
[9.0] Having heard learned advocates for the respective parties and going through the record, it appears that, at the instance of respondent No.2, the impugned FIR came to be filed on 31.12.2021 for the offence that allegedly took place during the period 01.01.2019 to 31.12.2019. It is the case of the respondent No.2 that by hatching conspiracy accused have sold the trucks of the respondent No.2. The petitioner No.1 and complainant are the real brothers and petitioner No.2 is the nephew of the complainant and they have committed cheating and criminal breach of trust and making forged document in the RTO form sold out the trucks of the respondent No.2 - original complainant. In this regard, complaint came to be filed. It appears that there was a transport business in partnership in the name of Ranjit Fleet Carrier Transport Company. The said business continued upto 2015 and then dispute arose qua partnership but petitioner No.1 continued the said business of transport in the name of Ranjit Transport Corporation. In the year 2019, the said 5 vehicles for transport were sold by the accused persons in the name of third party without the consent of the respondent No.2
- original complainant though the accused persons had received the trucks on rent for transportation purpose, without paying any rent, they sold out the said trucks by forging the RTO documents. In this regard, Criminal Inquiry No.25/2021 came to be filed to lodge complaint under Section 156(3) of the CrPC wherein police Page 9 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined authority has submitted the report and come to conclusion that no offence is made out. Hence, earlier application dated 12.02.2020 came to be filed and report was submitted to the Superintendent of Police, Jamnagar. Even, the present petitioner No.1 has also filed four civil suits with regard to property dispute in Jamnagar Civil Court.
[9.1] Considering all these aspects and long standing litigation between the parties, as no cognizable offence was disclosed, the complaint was not registered as an FIR. Even, the learned ACJM has declined to send the complaint for inquiry under Section 156(3) of the CrPC assigning detailed reasons relying on the decision of the Hon'ble Supreme Court in the case of Lalita Kumari (Supra). However, come to conclusion that the complaint is filed belatedly and prima facie no cognizable offence is made out. After passing the order on 07.06.2021, once again present respondent No.2 approached the revisional authority by way of Criminal Revision Application No.60/2021 which also came to be dismissed. Thus, the order passed by the learned ACJM in Criminal Inquiry No.25/2021 came to be confirmed. After the said order got confirmed, the complaint was kept for further inquiry under Section 202 of the CrPC though the said complaint came to be withdrawn on 30.12.2021 and very next day, impugned FIR being lodged without disclosing the earlier facts. Nonetheless, in the revision application also, the said fact is not mentioned in the complaint. Though original proceeding being Criminal Inquiry No.25/2021 came to be withdrawn, the said fact was not Page 10 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined disclosed before the learned Revisional Court and proceeding before Revisional Court also continued.
As earlier order passed by the learned ACJM in criminal case not to initiate proceeding under Section 156(3) of the CrPC has attained finality. Then, respondent No.2 has adopted short- cut method and got registered the impugned FIR before the police authority. It is needless to say that earlier on the same ground, LCB, Jamnagar came to conclusion that no offence is made out though once again the impugned FIR is registered with the police station. It is not pertinent to note that learned Magistrate has not passed any order to pass any order under Section 156(3) of the CrPC. In the case of Mona Panwar vs. High Court of Judicature at Allahabad & Ors. reported in (2011)3 SCC 496, the Hon'ble Apex Court has been pleased to hold that when a complaint is presented before the Magistrate, he has two options, (i) to pass an order contemplated under Section 156(3) of the CrPC and (ii) to direct examination of the complainant on oath and other witnesses present and proceed further in a manner provided under Section 202 of the CrPC. The order under Section 156(3) of the CrPC is in the nature of peremptory reminder to the police to exercise the power of investigation under Section 156(1) of the CrPC. If the Magistrate wants investigation, it falls under Section 202 of the CrPC. The purpose is to ascertain whether there is a prima facie case against the accused of the offence and to prevent the issue of process in a false and vexatious complaint intended to harass the person named in the complaint. Such examination is provided to fine out Page 11 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined whether or not there is sufficient ground for proceeding further.
Further, if a person has a grievance that FIR has not been registered by the police or having been registered but proper investigation is not being done then the remedy of aggrieved person is to file an application under Section 154(3) of the CrPC before the Superintendent of Police or to approach the concerned Magistrate under Section 156(3) of the CrPC. If such an application under Section 156(3) of the CrPC is made and the Magistrate is prima facie satisfied, he can direct the FIR to be registered or if it has already been registered, he can direct proper investigation to be done which includes in his discretion. If he deems it necessary recommending the change of Investigating Officer so that a proper investigation is done. These are the objects and the scheme of CrPC. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of M. Subramaniam and Anr. vs. S. Janaki and Anr. reported in (2020) 16 SCC 728.
[9.2] Thus, powers and scope under Section 156(3) of the CrPC have been elaborately discussed by the Hon'ble Supreme Court in the cases of (i) Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others reported in (2015)6 SCC 287; (ii) Ramdev Food Products Private Limited vs. State of Gujarat reported in (2015)6 SCC 439; (iii) Anil Kumar vs. M.K. Aiyappa reported in (2013)10 SCC 705 and (iv) Kailash Vijayvargiya vs. Rajlakshmi Chaudhuri reported in 2023 SCC OnLine 569 and in light of the decision of the Hon'ble Supreme Court in the case of Page 12 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined Lalita Kumari (Supra) discussed the powers of the learned Magistrate. Going through the aforesaid authorities, it appears that it is well settled principle that the powers under Section 156(3) of the CrPC cannot be exercised mechanically but are required to be exercised judiciously. At the time of passing an order under Section 156(3) of the CrPC, the Magistrate is not required to embark upon an in-depth roving inquiry as to the reliability or genuineness of the allegations. However, the learned Magistrate is duty bound to consider as to whether or not during the inquiry it clearly reveals that the cognizable offence is disclosed. While exercising the powers under Section 156(3) of the CrPC directing registration of FIR, the learned Magistrate need to ensure that the cognizable offence is made out.
[9.3] Herein, in the case on hand, the learned Magistrate has passed the speaking order and come to conclusion that, it is very difficult to come to conclusion as to whether cognizable offence is made out or not? The order passed under Section 156(3) of the CrPC necessitates the application of judicial mind. Such powers should not be exercised mechanically or arbitrarily and for that the Magistrate has to pass the speaking order. Merely, asking the complainant, Magistrate is not duty bound to pass an order directing the police authority to register an FIR.
[9.4] Herein, when first the complainant approached the police authority and police authority submitted a report concluding that no offence is made out and no FIR registered by police authority Page 13 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined then the complainant approached the learned JMFC Court and then the learned JMFC Court has been pleased to pass speaking order that no cognizable offence is made out and matter was kept for inquiry. The said order came to be assailed by way of revision application by the petitioner which also came to be dismissed. Thus, the said order attained finality. Considering the aforesaid facts, as per the law laid down by the Hon'ble Supreme Court in the case of Usha Chakravarti vs. State of West Bengal reported in 2023 SCC OnLine 90, while passing an order for registration of FIR upon an application filed under Section 156(3) of the CrPC, the Court must satisfy itself as to whether the basic ingredients of the alleged offence are fulfilled or not. In the said decision, the Hon'ble Supreme Court in paragraph No.10 held as follows:
"....there cannot be any doubt with respect to the position that in order to cause registration of an FIR and consequential investigation based on the same, the petition filed under Section 156(3) of the CrPC, must satisfy the essential ingredients to attract the alleged offences. In other words, the allegations in the petition are vague and are not specific with respect to the alleged offences, it cannot lead to an order for registration of an FIR and investigation on the accusation of commission of the offences alleged..."
Keeping in mind the aforesaid fact, once the Magistrate comes to conclusion that no cognizable offence is made out and Criminal Inquiry No.25/2021 is kept for inquiry under Section 202 of the CrPC. After the said inquiry case on 30.12.2021 withdrawn by the complainant, on the very next day i.e. on 31.12.2021, the impugned FIR came to be filed before the police authority. Thus, Page 14 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined it appears that to make redundant the findings of the learned Magistrate, who after judicial scrutiny come to conclusion that no cognizable offence is made out, complainant has filed the impugned FIR though the said findings of learned Magistrate have attained finality. Though earlier the police authority has refused to register the complaint, once again the police has registered the impugned FIR merely changing the guard of the police station. Considering the aforesaid fact, it appears that the complainant has filed the impugned FIR with a view to settle the score and tried to overreach the judicial process and the findings and reasons assigned by the learned Magistrate, which has ultimately attained the finality as the revisional court has denied to overturn the findings qua commission of cognizable offence.
[9.5] Further, once the learned ACJM has been pleased to deny investigation under Section 156(3) of the CrPC, on the same set of facts, the impugned FIR is filed. Even, pending the petition, proceeding under the Gujarat Land Grabbing (Prohibition) Act came to be filed which also came to be disposed of by the Deputy Collector, Jamnagar. It appears that the respondent No.2 has suppressed the very important and material facts about the earlier proceeding before the Superintendent of Police, Jamnagar and refusal to pass any order under Section 156(3) of the CrPC by the learned ACJM and after withdrawing the criminal inquiry case, very next day lodged the impugned FIR but not uttered a whisper about the earlier proceedings.
[9.6] Even, the same issue as to whether FIR can be lodged after Page 15 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined the rejection of application seeking investigation under Section 156(3) of the CrPC is dealt with by Uttarakhand High Court in the case of Lt. Colonel (Retd.) Balraj Singh Lamba & Anr. (Supra) wherein the Uttarakhand High Court come to the conclusion that after rejection of such prayer under Section 156(3) of the CrPC, if the police authority has registered the complaint and investigated the same then it is nothing but amounts to nullify an order of passed by the learned Magistrate, which is not permissible and such proceeding came to be quashed by the Uttarakhand High Court. Respondent No.2 has also assailed the order passed by the learned ACJM rejecting application seeking investigation under Section 156(3) of the CrPC and got the FIR registered and thus, the order passed by the learned ACJM is made redundant in deceitful manner which cannot be permitted to continue to nullify the order passed by the competent learned ACJM.
[10.0] Further, it is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are Page 16 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 and in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised.
[11.0] Considering the foregoing reasons, this Court is of the considered view that this is a fit case to invite invocation of powers under Section 482 of the CrPC to quash the FIR registered on the basis of the complaint filed by respondent No.2. Considering the peculiar facts of the case on hand, to permit continuation of such criminal proceedings would certainly abuse the process of law.
[12.0] Insofar as the authorities relied upon by the learned advocate for respondent No.2 of Hon'ble Supreme Court on the cases of M/s. Neeharika Infrastructure Pvt. Ltd. (Supra); Aryan Singh (Supra) and Supriya Jain (Supra) are concerned, it is pertinent to note that each case depends on its own facts and similarly between one case and another is not enough to warrant Page 17 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined like treatment. In this regard reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P reported in AIR 2004 SC 132, wherein it is observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
[12.1] Learned advocate for the complainant has submitted that as per the decision of the Hon'ble Apex Court in the case of Lalita Kumari (Supra), it is the duty of the police to register an offence if the cognizable offence is made out but it is needless to say that as discussed in earlier part of the order, by applying judicial mind the learned Magistrate come to conclusion that it is not clear as to whether cognizable offence being committed or not. In that event, preliminary inquiry is also permissible as per the dictum of Hon'ble Supreme Court in the case of Lalita Kumari (Supra) and learned Magistrate has opted to take further step pursuant to the said dictum. Considering the aforesaid peculiar facts of the case on hand, argument canvassed by learned advocate for the complainant is not acceptable.
Hence, the authorities relied on by the learned advocate for the respondent No.2 would not be of any avail to the case of the respondent No.2 as already the learned Magistrate has been Page 18 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024 NEUTRAL CITATION R/CR.MA/256/2022 CAV ORDER DATED: 12/04/2024 undefined pleased to assign erasons and not passed an order under Section 156(3) of the CrPC as there was no material which suggest or disclose commission of cognizable offence though on same set of facts, police has subsequently registered the FIR.
[13.0] In wake of aforesaid discussion, present petition is allowed. Impugned FIR being CR No.11202009212117 of 2021 registered with City 'B' Division Police Station, District Jamnagar alongwith all its consequential proceedings is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 19 of 19 Downloaded on : Mon Apr 15 22:12:53 IST 2024