Gujarat High Court
Shivdayal Govindlal Shrivastav vs State Of Gujarat on 4 February, 2025
NEUTRAL CITATION
R/CR.MA/5802/2024 ORDER DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5802 of 2024
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SHIVDAYAL GOVINDLAL SHRIVASTAV
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR A A ZABUAWALA(6823) for the Applicant(s) No. 1
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/02/2025
ORAL ORDER
1. The present application is filed for seeking the following reliefs:
"a. Quash and set aside the F.I.R. being I Crime Register No. 11199001220745 OF 2022 REGISTERED ON 25.07.2022 at City C Division Police Station, Bharuch for the offences punishable under section 354 D, 509, 504 and 506 (2) of the Indian Penal Code, 1860 and quash and set aside the Criminal Case No. 3495 Of 2023 Pending before the Ld. Chief Judicial Magistrate First Class; Bharuch District Bharuch, in interest of Justice.
b. By way of interim/ad interim relief stay further proceedings of Criminal Case No. 3495 Of 2023 Pending Page 1 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined before the Ld. Chief Judicial Magistrate First Class; Bharuch District Bharuch, during pendency and till the final disposal of the present petition; in interest of justice.
C. Grant any other and further relief/s as may deem fit in the interest of justice."
2. Heard Mr. A.A. Zabuawala, learned advocate for the applicant and Mr. Pranav Dhagat, learned APP for the respondent - State.
3. Mr. A.A. Zabuawala, learned advocate for the applicant has submitted that considering the materials available on the record, the present FIR is nothing but a counterblast FIR of the earlier complaint filed by the applicant. He has submitted that considering the provisions of law, no ingredients as alleged in the FIR are satisfied. He has submitted that considering the fact that the impugned FIR is filed with a view to mala fide intention and wracking vengeance with the accused and with a view to settling the private and personal grudge. Furthermore, he has relied upon the decision of the Hon'ble Apex Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, and has Page 2 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined submitted that the present proceeding is required to be quashed by exercising powers of this Court as the complaint of the respondent No.2 is totally false, imaginary and concocted one and with a view to settle the score with the present applicant. Hence, he has submitted that this Court should exercise its discretion by granting the prayers made in the present application by quashing the proceeding initiated pursuant to the FIR wherein, charge-sheet is also filed and now, Criminal Case No.3495 of 2023 is also registered and pending before the concerned Court.
4. Learned APP for the respondent - State has strongly opposed the submissions made at the bar and has submitted that on bare reading of the FIR, prima facie, case is made out against the present applicant, and, therefore, the Court may not interfere at this stage as such powers should be exercised very sparingly. 5.1 I have considered the rival submissions made at the bar. I have also perused the materials available on the record. The present FIR is registered on 25.07.2022 under the provisions of Sections 354D, 509, 504, and Page 3 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 506(2) of the I.P.C., the provisions are as under:
"Section 354D in The Indian Penal Code, 1860:-
354D. Stalking.--
(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.Page 4 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025
NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined
509. Word, gesture or act intended to insult the modesty of a woman.--
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
504. Intentional insult with intent to provoke breach of the peace.--
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven Page 5 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
5.2 Considering the nature of the allegations made in the FIR, it transpires that the accused is indulged in the activity in making obscene gestures and also capturing the photographs of the ladies residing in the society namely Rayshreeben and other ladies of that society. It is also alleged in the FIR that when the complainant went for dumping of the garbage, at that point of time, the accused has intercepted the complainant and has made some obscene gestures against the complainant and also threatened the complainant by saying that he will take the revenge against the complainant by doing some ritual work with the help of some occultist (Tantrik).
5.3 Furthermore, it is required to take note of the fact that in the present FIR, the investigation is carried out and charge-sheet is also filed before the trial court in the year 2023 and pursuant to that, Criminal Case numbered as No.3495 of 2023 is also registered. Page 6 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025
NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 5.4 On perusal of the materials available on the record and the papers of the charge-sheet, it cannot be said that continuation of the proceeding will amount to abuse of process of law in any manner neither it can be said that there is no prima facie case is made out against the present applicant. On the contrary, on going through the material, it transpires that the applicant is indulged in such activities, which clearly molested the ladies of the concerned society and one of the ladies has shown some courage and registered the FIR against the present applicant. Merely, some earlier incident has taken place whereby the applicant has filed some complaint is not a good ground to consider that present complaint is an counterblast FIR of the earlier complainant filed by the applicant with a view to seek revenge by the complainant by which, prima facie, the ingredients as alleged in the FIR are satisfied.
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 reported in (2024) 10 SCC 527, more particularly Paras : Page 7 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025
NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 15, 17and 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 or not. At this stage, the Court is not required to ascertain as to which specific Page 8 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 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 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 Page 9 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 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 investigation to go on;
iv) The power of quashing should be exercised Page 10 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and Page 11 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and Page 12 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 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 powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of Page 13 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C.
before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can Page 14 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025 NEUTRAL CITATION R/CR.MA/5802/2024 ORDER DATED: 04/02/2025 undefined 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 valid reason at the stage of investigation to quash the impugned FIR, more particularly, now the trial is also ripe for further proceeding as criminal case is already registered and hence, no purpose will be served in considering the present application any further as the present application is found merits-less and, therefore, needs to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 15 of 15 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:15:37 IST 2025