DINESHBHAI CHANDUBHAI PATEL versus STATE OF GUJARAT & ORS.

[2018] 1 S.C.R.

ADINESHBHAI CHANDUBHAI PATEL

STATE OF GUJARAT & ORS.

(Criminal Appeal No. 12 of 2018)

JANUARY 05, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Criminal Procedure, 1973:

s.482 – Scope of – Held: Inherent powers of High Court,Ccannot be stretched to any extent – Such powers cannot be equatedwith the appellate powers of High Court.

s.482 – Application under – Seeking quashing of FIR (whichwas registered pursuant to three complaints) – High Court quashedthe FIR to the extent of offences u/ss.406, 420 and 120B of IPCDand u/ss.3, 7 and 11 of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act – However, it did not quash the FIR inrespect of the allegations of creating two bogus powers of attorneys,blackmailing and extortion, etc. – Cross appeals by the complainantsand the accused – Held: The three complaints and the FIR do disclosea prima facie commission of various cognizable offences – Therefore,Ethe High Court should have upheld the entire FIR – In order toexamine as to whether factual contents of FIR disclose any primafacie cognizable offence or not, High Court cannot act like aninvestigating agency and nor can exercise the powers like anappellate court – High Court exceeded its power while exercisingFits inherent jurisdiction u/s. 482.

Allowing the appeals filed by the complainants anddismissing those filed by the accused persons, the Court

HELD: 1. The inherent powers of the High Court, whichare obviously not defined being inherent in its very nature, cannotGbe stretched to any extent and nor can such powers be equatedwith the appellate powers of the High Court defined in the Cr.P.C.The parameters laid down by this Court while exercising inherentpowers must always be kept in mind else it would lead tocommitting the jurisdictional error in deciding the case. [ParaH34][71-C]

2. Once the Court finds that the FIR does disclose primafacie commission of any cognizable offence, it should stay its handand allow the investigating machinery to step in to initiate theprobe to unearth the crime in accordance with the procedureprescribed in Cr.P.C. The High Court had exceeded its powerswhile exercising its inherent jurisdiction under Section 482 ofCr.P.C. [Paras 32, 33][70-H; 71-A-B]

3. The High court wrongly concluded that some part of theFIR in question was bad in law because it did not disclose anycognizable offence against any of the accused persons whereasonly part of the FIR was good which disclosed prima faciecase against the accused persons and hence it needed furtherinvestigation to that extent in accordance with law. In doing so,the High Court virtually decided all the issues arising out of thecase like an investigating authority or/and appellate authoritydecides, by little realizing that it was exercising its inherentjurisdiction under Section 482 of the Cr.P.C. at this stage. [Paras28, 29][70-C-D]

4. The High Court failed to see the extent of its jurisdiction,which it possesses to exercise while examining the legality ofany FIR complaining commission of several cognizable offencesby accused persons. In order to examine as to whether the factualcontents of the FIR disclose any prima facie cognizable offencesor not, the High Court cannot act like an investigating agencyand nor can exercise the powers like an appellate Court. Thequestion was required to be examined keeping in view thecontents of the FIR and prima facie material, if any, requiring noproof. [Para 30][70-E]5. At this stage, the High Court could not have appreciatedthe evidence nor could have drawn its own inferences from thecontents of the FIR and the material relied on. It was more sowhen the material relied on was disputed by the Complainantsand vice-versa. In such situation, it becomes the job of theinvestigating authority at such stage to probe and then of theCourt to examine the questions once the charge sheet is filedalong with such material as to how far and to what extent reliancecan be placed on such material. [Para 31][70-F-G]

A6. The three complaints and the FIR do disclose primafacie commission of various cognizable offences alleged by thecomplainants against the accused persons and, therefore, theHigh Court instead of dismissing the application filed by theaccused persons in part should have dismissed the applicationas whole to uphold the entire FIR in question. [Para 35][71-D-BE]

State of West Bengal & Ors v. Swapan Kumar Guha &Ors. AIR 1982 SC 949 : [1982] 3 SCR 121 – reliedon.

CD. P. Gulati, Manager Accounts Jetking Infotrain Ltd.v. State of Uttar Pradesh and Anr.(2015) 11 SCC 730 :[2015] 3 SCR 572; Harshendra Kumar D. v. RebatilataKoley Etc. (2011) 3 SCC 351 : [2011] 2 SCR 670 –distinguished.

Case Law Reference

ECRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.12 of 2018.

From the Judgment and Order dated 10.07.2017 of the High Courtof Gujarat at Ahmedabad in Special Criminal Application No. 4357 of2016

WITH

Crl. A. Nos. 13, 14, 15, 16 and 17 of 2018.

Dushyant Dave, Harin P. Raval, Ms. Meenakshi Arora, MukulRohatgi, Yatin Oza, Sr. Advs., Ms. Garima Bajaj, Pradhuman Gohil,GMrs. Taruna Singh Gohil, Mohit Paul, Puneeth K.G., Anugrah Niraj Ekka,Shamik Sanjanwala, Sunil Kaundal, Kailash Pandey, Ranjeet Singh,Gaichangpou Gangmei, Mahesh Agarwal, Abhinav Agrawal,E. C. Agrawala, Purvish Jitendra Malkan, Apurva Kapadia, Ms. DharitaP. Malkan, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh,Ms. Shodhika Sharma, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are filed against the common final judgment andorder dated 10.07.2017 passed by the High Court of Gujarat atAhmedabad in Criminal Misc. Application (for quashing and set asideFIR/Order) No. 16731 of 2016 with Crl. Misc. Appln. Nos. 13733, 14842/2016, SPCRA Nos. 4387, 4357, 4951/2016, Crl.Misc. Appln. No. 32440/2016 in Crl. Misc. Appln. No.16731/2016 whereby the Single Judge ofthe High Court partly allowed the application for quashing the FIR.

3. In order to appreciate the issues involved in this bunch of appeals,it is necessary to state few relevant facts. The facts are taken from theSLP paper books.

4. The dispute arising between the parties to this bunch of appealsessentially relates to piece of land bearing Survey No. 96/3/2, BlockNo. 121, admeasuring 5281 sq. mts., Plot No. 71, admeasuring 3475 sq.mts. of Town Planning Scheme No. 36 (Althan), situated at village Althan,Taluka & city -Surat (hereinafter referred to as “the disputed land”).

5. The disputed land was jointly owned by the members of oneRathore family, who according to them, belonged to Halpai caste.

6. Six members of the Rathore Family (hereinafter referred to asthe Complainants) filed one joint complaint to the Commissioner of Police,Surat on 25.04.2011 (Annexure-P-2) complaining therein that one personby name - Dineshbhai Chandubhai Patel in conspiracy with severalother named persons jointly defrauded and deceived the complainantsby taking advantage of their illiteracy, poverty and unawareness gotexecuted bogus Power of Attorney with bogus signatures in relation tothe disputed land. It was alleged that these persons again in furtherancewith the conspiracy got the disputed land transferred in favour of severalpersons and illegally got the construction maps sanctioned to enable themto do construction over the disputed land.7. In short and in substance, the grievance of the complainantswas that the above named persons conspired together and snatchedaway from the complainants their aforementioned valuable land bycommitting fraud, cheating, deception, breach of trust etc. on them.

A8. The complainants enclosed all disputed documents along withtheir complaint to show prima facie case alleged to have been committedby the above-named persons and prayed to the Commissioner of Policeto investigate the entire case in relation to their land and bring theinvestigation to its logical end by first registering the FIR and then afterholding proper investigation, file the charge sheet in the competentBCourt against all those found involved in the case and prosecute themfor the offences which they have allegedly committed and punish themunder the Indian Penal Code and other related Acts.

9. This was followed by another complaint (Annexure P-6) filedwith the Collector (SIT), Surat on 23.01.2012 against six named personsCseeking therein the prosecution of those persons for having committedthe alleged offences punishable under Sections 34, 114, 120-B , 420 ,465,468, 471 and 476 of the Indian Penal Code, 1860 (hereinafter referredto as “IPC”) read with Sections 3, 7 and 11 of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complaint

Dalso set out the allegations with details alike the previous one with somenew facts.

10. Yet another third complaint was filed with the Collector, DistrictDisputes Redressal Forum, Surat (Annexure-P-13) on 07.10.2013 byone of the complainants against 8 named persons making more or lessEsame allegations made in the first two complaints with more detailedfacts seeking to prosecute them for the commission of offences namedin the earlier complaints.

11. It is these three complaints which led to registration of theFIR (CR No.I.C.R. No. 90 of 2016) on 06.06.2016 with KhatodaraFPolice Station, Surat giving rise to filing of several criminal applications,bail petitions etc. one after the other at the instances of the named accusedpersons and others alleged to be involved in the cases.

12. These cases were filed in the lower Court, the High Courtand also in this Court one after the other during the last 4 years. TheGCourts passed several orders with observations made therein.

13. The present bunch of appeals arises out of the criminalapplications filed by the named accused persons in the aforementionedthree complaints under Section 482 of the Code of Criminal Procedure,1973 (hereinafter referred to as “the Code”) in the Gujarat High Courtseeking therein prayer to quash the aforementioned FIR.H

14. By impugned judgment dated 10.07.2017, the Single Judge ofthe High Court partly allowed the criminal applications and passed thefollowing operative portion of the judgment contained in Para 88 whichreads as under:

“(1) The First Information Report, so far as the offencepunishable under Sections 406, 420, 120B of the IndianPenal Code and the Atrocities Act is concerned, is quashed.The investigation as regards the allegations of creating thetwo bogus power of attorneys and erasing of 73AA isconcerned, shall be completed by the Commissioner ofPolice, Surat in accordance with law.

(2) The Commissioner is also directed to undertake theinvestigation as regards the persons, who had approachedthe land owners and had obtained the thumb impressionson the complaints addressed to the Commissioner ofPolice, Surat. To put it in other words, I direct theCommissioner to undertake proper investigation asregards the allegations of blackmailing and extortion leveledagainst the particular persons.”

15. It is against this judgment, both parties, i.e., the complainantsand the accused persons have felt aggrieved and filed these appeals.

16. So far as the accused persons are concerned, they havechallenged that part of the order by which the High Court has dismissedtheir criminal applications and declined to quash the FIR in relation tosome offences alleged against them. According to the accused persons,the High Court should have quashed the entire FIR instead of quashingpart of it.

17. So far as the complainants are concerned, they have challengedthat part of the judgment by which the High Court has quashed the FIRin relation to some offences. According to the Complainants, the HighCourt should have upheld the entire FIR as it being legal and proper, itshould have been given full effect in accordance with law against theaccused persons.

18. This is how, the entire controversy is now again raised beforethis Court in this bunch of appeals by way of special leave at the instanceof the complainants and accused persons in their respective appeals.

A19. Heard Mr. Mukul Rohtagi, Dr. A.M. Singhvi, Mr. Yatin Oza,Ms. Meenakshi Arora and Mr. Shamik Sanjanwala, learned senior counselfor the accused persons and Mr. Dushyant Dave and Mr. Harin P. Raval,learned senior counsel for the complainants.

20. Mr. Mukul Rohatgi, Dr. A.M. Singhvi, Mr. Yatin Oza and Ms.BMeenakshi Arora, learned senior counsel appearing for the accusedpersons, in their respective appeals, strenuously contended that the HighCourt had rightly quashed the FIR in part but erred in not proceeding toquash the FIR in full because in the light of the findings on which theFIR was quashed in part, nothing then remained for the investigatingauthorities to probe in the remaining FIR which was upheld.C

21. It is this submission, which was elaborated by all the seniorcounsel by placing reliance on several documents, observations of theHigh Court made in the earlier round of litigation and in the impugnedjudgment with view to show that the entire FIR is an abuse of legalprocess and caused harassment to the accused persons. It was urgedDthat FIR does not make out any much less prima facie case against anyof the accused persons as the parties having settled the matter in writingand the complainants having accepted the huge consideration from theaccused persons, there does not arise any cause to the Complainants tonow file such belated FIR against the accused persons in relation to theEsubject matter in question. According to the learned counsel, it is alsobarred.

22. In reply, learned senior counsel Mr. Dushyant Dave and HarinP. Rawal appearing for the complainants urged that the High Court shouldhave dismissed the criminal applications filed by the accused personsFand upheld the entire FIR as whole for being probed as, according tothem, the FIR did disclose prima facie cognizable offences against theaccused persons named therein. It was urged that keeping in view thenature of the offences, the law of limitation does not apply as has beenheld by this Court in number of similar cases.

G23. Learned counsel further urged that there was no justificationmuch less legal justification on the part of the High Court to have quashedthe FIR in part and hence the judgment to that extent deserves to be setaside.

24. It is this submission, which was elaborated by the learnedsenior counsel by placing reliance on several documents filed by themH

including placing reliance on the observations of the High Court in theearlier round of litigation and the impugned judgment and at the sametime also denied the documents filed by the accused persons includingtheir contents and correctness.

25. Having heard the learned counsel for the parties at length andon perusal of the record of the case, we are inclined to accept thesubmissions of the learned counsel appearing for the Complainants findingforce therein whereas we do not find any merit in the submissions urgedby the learned counsel appearing for the accused persons.

26. The law on the question as to when registration of the FIRis challenged seeking its quashing by the accused under Article 226 ofthe Constitution or Section 482 of the Code and what are the powers ofthe High Court and how the High Court should deal with such questionis fairly well settled.

27. This Court in State of West Bengal & Ors. vs. SwapanKumar Guha & Ors. (AIR 1982 SC 949) had the occasion to dealwith this issue. Y.V. Chandrachud, the learned Chief Justice speakingfor Three Judge Bench laid down the following principle:

“Whether an offence has been disclosed or not mustnecessarily depend on the facts and circumstances of eachparticular case. If on consideration of the relevantmaterials, the Court is satisfied that an offence is disclosed,the Court will normally not interfere with the investigationinto the offence and will generally allow the investigationin the offence to be completed for collecting materials forproving the offence.

The condition precedent to the commencement ofinvestigation under S.157 of the Code is that the F.I.R. mustdisclose, prima facie, that cognizable offence has beencommitted. It is wrong to suppose that the police have anunfettered discretion to commence investigation underS.157 of the Code. Their right of inquiry is conditioned bythe existence of reason to suspect the commission of acognizable offence and they cannot, reasonably, have reasonso to suspect unless the F.I.R., prima facie, discloses thecommission of such offence. If that condition is satisfied,the investigation must go on. The Court has then no power

Ato stop the investigation, for to do so would be to trenchupon the lawful power of the police to investigate intocognizable offences.”

28. Keeping in view the aforesaid principle of law, which wasconsistently followed by this Court in later years and on perusing theBimpugned judgment, we are constrained to observe that the High Courtwithout any justifiable reason devoted 89 pages judgment (see-paperbook) to examine the aforesaid question and then came to conclusionthat some part of the FIR in question is bad in law because it does notdisclose any cognizable offence against any of the accused personswhereas only part of the FIR is good which discloses prima facieCcase against the accused persons and hence it needs further investigationto that extent in accordance with law.

29. In doing so, the High Court, in our view, virtually decided allthe issues arising out of the case like an investigating authority or/andappellate authority decides, by little realizing that it was exercising itsDinherent jurisdiction under Section 482 of the Code at this stage.

30. The High Court, in our view, failed to see the extent of itsjurisdiction, which it possesses to exercise while examining the legalityof any FIR complaining commission of several cognizable offences byaccused persons. In order to examine as to whether the factual contentsEof the FIR disclose any prima facie cognizable offences or not, theHigh Court cannot act like an investigating agency and nor can exercisethe powers like an appellate Court. The question, in our opinion, wasrequired to be examined keeping in view the contents of the FIR andprima facie material, if any, requiring no proof.

31. At this stage, the High Court could not appreciate the evidencenor could draw its own inferences from the contents of the FIR and thematerial relied on. It was more so when the material relied on wasdisputed by the Complainants and vice-versa. In such situation, itbecomes the job of the investigating authority at such stage to probe andGthen of the Court to examine the questions once the charge sheet is filedalong with such material as to how far and to what extent reliance canbe placed on such material.

32. In our considered opinion, once the Court finds that the FIRdoes disclose prima facie commission of any cognizable offence, it shouldstay its hand and allow the investigating machinery to step in to initiateH

the probe to unearth the crime in accordance with the procedureprescribed in the Code.

33. The very fact that the High Court in this case went into theminutest details in relation to every aspect of the case and devoted 89pages judgment to quash the FIR in part lead us to draw conclusionthat the High Court had exceeded its powers while exercising its inherentjurisdiction under Section 482 of the Code. We cannot concur with suchapproach of the High Court.

34. The inherent powers of the High Court, which are obviouslynot defined being inherent in its very nature, cannot be stretched to anyextent and nor can such powers be equated with the appellate powersof the High Court defined in the Code. The parameters laid down by thisCourt while exercising inherent powers must always be kept in mindelse it would lead to committing the jurisdictional error in deciding thecase. Such is the case here.

35. On perusal of the three complaints and the FIR mentionedabove, we are of the considered view that the complaint and FIR, dodisclose prima facie commission of various cognizable offences allegedby the complainants against the accused persons and, therefore, theHigh Court instead of dismissing the application filed by the accusedpersons in part should have dismissed the application as whole to upholdthe entire FIR in question.

36. Learned counsel for the accused persons after the argumentswere over filed brief note and placed reliance on 2 decisions of thisCourt reported in (2015) 11 SCC 730 and (2011) 3 SCC 351 in supportof their contentions. We have perused the 2 decisions. In our view, boththe decisions are distinguishable on facts, whereas the decision on whichwe have placed reliance is more on the point. It is for the reason that inthe first place, the 2 decisions relied on by the learned counsel for theaccused persons were the cases where complaint was filed in theCourt under Section 138 of the Negotiable Instruments Act and in othercase under some sections of IPC. It is this complaint which was soughtto be quashed by invoking the inherent jurisdiction under Section 482 ofthe Code. Such is not the case here. Secondly, the decision thereforeturned on the facts involved in respective cases.

37. In the case at hand, the challenge is especially to registrationof the FIR. This Court in Swapan Kumar Guha (supra)case examined

Athe exercise of inherent powers of the High Court in the context of achallenge to an FIR. In our view, therefore, the law laid down in SwapanKumar Guha (supra)is directly applicable to the facts of this case asagainst the law laid down in the two cited decisions.

38. In the light of foregoing discussion, it is now necessary thatBthe matter, which is subject matter of FIR in question, needs to beinvestigated in detail by the investigating authorities in accordance withprocedure prescribed in the Code.

39. We have purposefully refrained from making any observationon the merits and also refrained from giving our reasoning on factualCissues arising out of the case, else it may cause prejudice to the partiesand also hamper the on-going investigating process undertaken by thepolice authorities.

40. Though learned senior counsel appearing for the parties arguedthe issues touching the merits of the case by referring to hundreds ofDdocuments but, in our view, it is wholly unnecessary to enter into thefactual arena once we record finding that prima facie case is madeout on reading the FIR including the documents enclosed therein. We,therefore, do not consider it necessary to go in detail of their submissions.Needless to say, all these submissions and unproved and disputeddocuments on which reliance was placed by the parties would be dealtEwith at later stage as and when the occasion arises.

41. In view of foregoing discussion, the appeals filed by thecomplainants, i.e., criminal appeals @ S.L.P. (Crl.) Nos. 5476 & 5475of 2017 are allowed. The impugned judgment is set aside. As sequel toour order, the appeals filed by the accused persons, i.e., criminal appealsF@ S.L.P.(Crl.) Nos. 5155, 5322, 5500 & 5867/2017 are dismissed.

42. As consequence, the criminal applications filed by the accusedpersons under Section 482 of the Code out of which these appeals ariseare dismissed.

43. Since the FIR is pending for quite some time, we direct theGinvestigating authorities to complete the investigation of the case withoutany bias and prejudices strictly in accordance with law and proceedahead expeditiously.

44. Before parting, we consider it proper to clarify that this ordershould not be construed as having decided any issue on merits eitherH

way. The investigating authorities would not, therefore, be influenced inany manner by any of the observations made by the lower Courts andthe High Court in their respective orders while investigating the matter.

Kalpana K. Tripathy

Appeals disposed of.