In the case at hand, the challenge is especially to registration of the FIR. This Court in Swapan Kumar Guha (supra) case examined the exercise of inherent powers of the High Court in the context of a challenge to an FIR. In our view, therefore, the law laid down in Swapan Kumar Guha (supra) is directly applicable to the facts of this case as against the law laid down in the two cited decisions.

 

 

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 12 OF 2018

(Arising out of S.L.P.(Crl.)No.5155 of 2017)

Dineshbhai Chandubhai Patel ….Appellant(s)

VERSUS

State of Gujarat & Ors. ….Respondent(s)

WITH

CRIMINAL APPEAL NO.13 OF 2018

(Arising out of S.L.P.(Crl.)No.5322 of 2017)

Balubhai Ravjibhai Ahir ….Appellant(s)

VERSUS

State of Gujarat & Ors. ….Respondent(s)

CRIMINAL APPEAL NO.15 OF 2018

(Arising out of S.L.P.(Crl.)No.5476 of 2017)

Arjun Shankarbhai Rathod ….Appellant(s)

VERSUS

Harishbhai Ramanbhai Rathod

& Ors. Etc.Etc. ….Respondent(s)

2

CRIMINAL APPEAL NO. 14 OF 2018

(Arising out of S.L.P.(Crl.)No.5475 of 2017)

Manish Patel(Advocate) ….Appellant(s)

VERSUS

Harishbhai Ramanbhai Rathod

& Ors. Etc.Etc. ….Respondent(s)

CRIMINAL APPEAL NO.16 OF 2018

(Arising out of S.L.P.(Crl.)No.5500 of 2017)

Harishbhai Ramanbhai Rathod ….Appellant(s)

VERSUS

State of Gujarat & Anr. ….Respondent(s)

AND

CRIMINAL APPEAL NO. 17 OF 2018

(Arising out of S.L.P.(Crl.)No.5867 of 2017)

Manharbhai Muljibhai Kakadia ….Appellant(s)

VERSUS

State of Gujarat & Ors. ….Respondent(s)

 

3

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) These appeals are filed against the common

final judgment and order dated 10.07.2017 passed

by the High Court of Gujarat at Ahmedabad in

Criminal Misc. Application (for quashing and set

aside FIR/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 of the 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 the SLP

paper books.

4

4) The dispute arising between the parties to this

bunch of appeals essentially relates to a piece of

land bearing Survey No. 96/3/2, Block No. 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 one Rathore family, who according to

them, belonged to Halpai caste.

6) Six members of the Rathore Family

(hereinafter referred to as the Complainants) filed

one joint complaint to the Commissioner of Police,

Surat on 25.04.2011 (Annexure-P-2) complaining

therein that one person by name – Dineshbhai

Chandubhai Patel in conspiracy with several other

named persons jointly defrauded and deceived the

5

complainants by taking advantage of their illiteracy,

poverty and unawareness got executed bogus Power

of Attorney with bogus signatures in relation to the

disputed land. It was alleged that these persons

again in furtherance with the conspiracy got the

disputed land transferred in favour of several

persons and illegally got the construction maps

sanctioned to enable them to do construction over

the disputed land.

7) In short and in substance, the grievance of the

complainants was that the above named persons

conspired together and snatched away from the

complainants their aforementioned valuable land by

committing fraud, cheating, deception, breach of

trust etc. on them.

8) The complainants enclosed all disputed

documents along with their complaint to show

prima facie case alleged to have been committed by

6

the above-named persons and prayed to the

Commissioner of Police to investigate the entire case

in relation to their land and bring the investigation

to its logical end by first registering the FIR and

then after holding a proper investigation, file the

charge sheet in the competent Court against all

those found involved in the case and prosecute

them for the offences which they have allegedly

committed and punish them under the Indian Penal

Code and other related Acts.

9) This was followed by another complaint

(Annexure P-6) filed with the Collector (SIT), Surat

on 23.01.2012 against six named persons seeking

therein the prosecution of those persons for having

committed the alleged offences punishable under

Sections 34, 114, 120-B , 420 ,465 ,468, 471 and

476 of the Indian Penal Code, 1860 (hereinafter

referred to as “IPC”) read with Sections 3, 7 and 11

7

of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. The complaint

also set out the allegations with details alike the

previous one with some new facts.

10) Yet another third complaint was filed with the

Collector, District Disputes Redressal Forum, Surat

(Annexure-P-13) on 07.10.2013 by one of the

complainants against 8 named persons making

more or less same allegations made in the first two

complaints with more detailed facts seeking to

prosecute them for the commission of offences

named in the earlier complaints.

11) It is these three complaints which led to

registration of the FIR (CR No.I.C.R. No. 90 of 2016)

on 06.06.2016 with Khatodara Police Station, Surat

giving rise to filing of several criminal applications,

bail petitions etc. one after the other at the

8

instances of the named accused persons and others

alleged to be involved in the cases.

12) These cases were filed in the lower Court, the

High Court and also in this Court one after the

other during the last 4 years. The Courts passed

several orders with observations made therein.

13) The present bunch of appeals arises out of the

criminal applications filed by the named accused

persons in the aforementioned three complaints

under Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as “the

Code”) in the Gujarat High Court seeking therein a

prayer to quash the aforementioned FIR.

14) By impugned judgment dated 10.07.2017, the

Single Judge of the High Court partly allowed the

criminal applications and passed the following

operative portion of the judgment contained in Para

88 which reads as under:

9

“(1) The First Information Report, so far as

the offence punishable under Sections 406,

420, 120B of the Indian Penal Code and the

Atrocities Act is concerned, is quashed. The

investigation as regards the allegations of

creating the two bogus power of attorneys

and erasing of 73AA is concerned, shall be

completed by the Commissioner of Police,

Surat in accordance with law.

(2) The Commissioner is also directed to

undertake the investigation as regards the

persons, who had approached the land

owners and had obtained the thumb

impressions on the complaints addressed to

the Commissioner of Police, Surat. To put it

in other words, I direct the Commissioner to

undertake proper investigation as regards the

allegations of blackmailing and extortion

leveled against the particular persons.”

15) It is against this judgment, both parties, i.e.,

the complainants and the accused persons have felt

aggrieved and filed these appeals.

16) So far as the accused persons are concerned,

they have challenged that part of the order by which

the High Court has dismissed their criminal

applications and declined to quash the FIR in

relation to some offences alleged against them.

According to the accused persons, the High Court

10

should have quashed the entire FIR instead of

quashing part of it.

17) So far as the complainants are concerned, they

have challenged that part of the judgment by which

the High Court has quashed the FIR in relation to

some offences. According to the Complainants, the

High Court should have upheld the entire FIR as it

being legal and proper, it should have been given

full effect in accordance with law against the

accused persons.

18) This is how, the entire controversy is now

again raised before this Court in this bunch of

appeals by way of special leave at the instance of

the complainants and accused persons in their

respective appeals.

19) Heard Mr. Mukul Rohtagi, Dr. A.M. Singhvi,

Mr. Yatin Oza, Ms. Meenakshi Arora and Mr.

Shamik Sanjanwala, learned senior counsel for the

11

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. Meenakshi Arora, learned senior

counsel appearing for the accused persons, in their

respective appeals, strenuously contended that the

High Court had rightly quashed the FIR in part but

erred in not proceeding to quash the FIR in full

because in the light of the findings on which the FIR

was quashed in part, nothing then remained for the

investigating authorities to probe in the remaining

FIR which was upheld.

21) It is this submission, which was elaborated by

all the senior counsel by placing reliance on several

documents, observations of the High Court made in

the earlier round of litigation and in the impugned

judgment with a view to show that the entire FIR is

12

an abuse of legal process and caused harassment to

the accused persons. It was urged that FIR does not

make out any much less prima facie case against

any of the accused persons as the parties having

settled the matter in writing and the complainants

having accepted the huge consideration from the

accused persons, there does not arise any cause to

the Complainants to now file such belated FIR

against the accused persons in relation to the

subject matter in question. According to the

learned counsel, it is also barred.

22) In reply, learned senior counsel Mr. Dushyant

Dave and Harin P. Rawal appearing for the

complainants urged that the High Court should

have dismissed the criminal applications filed by the

accused persons and upheld the entire FIR as a

whole for being probed as, according to them, the

FIR did disclose prima facie cognizable offences

13

against the accused persons named therein. It was

urged that keeping in view the nature of the

offences, the law of limitation does not apply as has

been held by this Court in number of similar cases.

23) Learned counsel further urged that there was

no justification much less legal justification on the

part of the High Court to have quashed the FIR in

part and hence the judgment to that extent deserves

to be set aside.

24) It is this submission, which was elaborated by

the learned senior counsel by placing reliance on

several documents filed by them including placing

reliance on the observations of the High Court in

the earlier round of litigation and the impugned

judgment and at the same time also denied the

documents filed by the accused persons including

their contents and correctness.

14

25) Having heard the learned counsel for the

parties at length and on perusal of the record of the

case, we are inclined to accept the submissions of

the learned counsel appearing for the Complainants

finding force therein whereas we do not find any

merit in the submissions urged by the learned

counsel appearing for the accused persons.

26) The law on the question as to when a

registration of the FIR is challenged seeking its

quashing by the accused under Article 226 of the

Constitution or Section 482 of the Code and what

are the powers of the High Court and how the High

Court should deal with such question is fairly well

settled.

27) This Court in State of West Bengal & Ors.

vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949)

had the occasion to deal with this issue. Y.V.

Chandrachud, the learned Chief Justice speaking

15

for Three Judge Bench laid down the following

principle:

“Whether an offence has been disclosed

or not must necessarily depend on the facts

and circumstances of each particular case. If

on a consideration of the relevant materials,

the Court is satisfied that an offence is

disclosed, the Court will normally not

interfere with the investigation into the

offence and will generally allow the

investigation in the offence to be completed

for collecting materials for proving the

offence.

The condition precedent to the

commencement of investigation under S.157

of the Code is that the F.I.R. must disclose,

prima facie, that a cognizable offence has

been committed. It is wrong to suppose that

the police have an unfettered discretion to

commence investigation under S.157 of the

Code. Their right of inquiry is conditioned

by the existence of reason to suspect the

commission of a cognizable offence and they

cannot, reasonably, have reason so to suspect

unless the F.I.R., prima facie, discloses the

commission of such offence. If that

condition is satisfied, the investigation must

go on. The Court has then no power to stop

the investigation, for to do so would be to

trench upon the lawful power of the police to

investigate into cognizable offences.”

28) Keeping in view the aforesaid principle of law,

which was consistently followed by this Court in

16

later years and on perusing the impugned

judgment, we are constrained to observe that the

High Court without any justifiable reason devoted

89 pages judgment (see-paper book) to examine the

aforesaid question and then came to a conclusion

that some part of the FIR in question is bad in law

because it does not disclose any cognizable offence

against any of the accused persons whereas only a

part of the FIR is good which discloses a prima facie

case against the accused persons and hence it

needs further investigation to that extent in

accordance with law.

29) In doing so, the High Court, in our view,

virtually decided all the issues arising out of the

case like an investigating authority or/and appellate

authority decides, by little realizing that it was

exercising its inherent jurisdiction under Section

482 of the Code at this stage.

17

30) The High Court, in our view, failed to see the

extent of its jurisdiction, which it possess to

exercise while examining the legality of any FIR

complaining commission of several cognizable

offences by accused persons. In order to examine

as to whether the factual contents of the FIR

disclose any prima facie cognizable offences or not,

the High Court cannot act like an investigating

agency and nor can exercise the powers like an

appellate Court. The question, in our opinion, was

required to be examined keeping in view the

contents of the FIR and prima facie material, if any,

requiring no proof.

31) At this stage, the High Court could not

appreciate the evidence nor could draw its own

inferences from the contents of the FIR and the

material relied on. It was more so when the

material relied on was disputed by the

18

Complainants and visa-se-versa. In such a

situation, it becomes the job of the investigating

authority at such stage to probe and then of the

Court to examine the questions once the charge

sheet is filed along with such material as to how far

and to what extent reliance can be placed on such

material.

32) In our considered opinion, once the Court

finds that the FIR does disclose prima facie

commission of any cognizable offence, it should stay

its hand and allow the investigating machinery to

step in to initiate the probe to unearth the crime in

accordance with the procedure prescribed in the

Code.

33) The very fact that the High Court in this case

went into the minutest details in relation to every

aspect of the case and devoted 89 pages judgment

to quash the FIR in part lead us to draw a

19

conclusion that the High Court had exceeded its

powers while exercising its inherent jurisdiction

under Section 482 of the Code. We cannot concur

with such approach of the High Court.

34) The inherent powers of the High Court, which

are obviously not defined being inherent in its very

nature, cannot be stretched to any extent and nor

can such powers be equated with the appellate

powers of the High Court defined in the Code. The

parameters laid down by this Court while exercising

inherent powers must always be kept in mind else it

would lead to committing the jurisdictional error in

deciding the case. Such is the case here.

35) On perusal of the three complaints and the FIR

mentioned above, we are of the considered view that

the complaint and FIR, do disclose a prima facie

commission of various cognizable offences alleged

by the complainants against the accused persons

20

and, therefore, the High Court instead of dismissing

the application filed by the accused persons in part

should have dismissed the application as a whole to

uphold the entire FIR in question.

36) Learned counsel for the accused persons after

the arguments were over filed brief note and placed

reliance on 2 decisions of this Court reported in

(2015) 11 SCC 730 and (2011) 3 SCC 351 in

support of their contentions. We have perused the 2

decisions. In our view, both the decisions are

distinguishable on facts, whereas the decision on

which we have placed reliance is more on the point.

It is for the reason that in the first place, the 2

decisions relied on by the learned counsel for the

accused persons were the cases where a complaint

was filed in the Court under Section 138 of the

Negotiable Instruments Act and in other case under

some sections of IPC. It is this complaint which was

21

sought to be quashed by invoking the inherent

jurisdiction under Section 482 of the Code. Such is

not the case here. Secondly, the decision therefore

turned on the facts involved in respective cases.

37) In the case at hand, the challenge is especially

to registration of the FIR. This Court in Swapan

Kumar Guha (supra) case examined the exercise of

inherent powers of the High Court in the context of

a challenge to an FIR. In our view, therefore, the

law laid down in Swapan Kumar Guha (supra) is

directly applicable to the facts of this case as

against the law laid down in the two cited decisions.

38) In the light of foregoing discussion, it is now

necessary that the matter, which is subject matter

of FIR in question, needs to be investigated in detail

by the investigating authorities in accordance with

procedure prescribed in the Code.

22

39) We have purposefully refrained from making

any observation on the merits and also refrained

from giving our reasoning on factual issues arising

out of the case, else it may cause prejudice to the

parties and also hamper the on-going investigating

process undertaken by the police authorities.

40) Though learned senior counsel appearing for

the parties argued the issues touching the merits of

the case by referring to hundreds of documents but,

in our view, it is wholly unnecessary to enter into

the factual arena once we record a finding that a

prima facie case is made out 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 disputed

documents on which reliance was placed by the

23

parties would be dealt with at a later stage as and

when the occasion arises.

41) In view of foregoing discussion, the appeals

filed by the complainants, i.e., criminal appeals @

S.L.P. (Crl.) Nos. 5476 & 5475 of 2017 are allowed.

The impugned judgment is set aside. As a sequel to

our order, the appeals filed by the accused persons,

i.e., criminal appeals @ S.L.P.(Crl.) Nos. 5155, 5322,

5500 & 5867/2017 are dismissed.

42) As a consequence, the criminal applications

filed by the accused persons under Section 482 of

the Code out of which these appeals arise are

dismissed.

43) Since the FIR is pending for quite some time,

we direct the investigating authorities to complete

the investigation of the case without any bias and

prejudices strictly in accordance with law and

proceed ahead expeditiously.

24

44) Before parting, we consider it proper to clarify

that this order should not be construed as having

decided any issue on merits either way. The

investigating authorities would not, therefore, be

influenced in any manner by any of the

observations made by the lower Courts and the

High Court in their respective orders while

investigating the matter.

……………………………………..J.

[R.K. AGRAWAL]

 

 

 

……………………………………….J.

[ABHAY MANOHAR SAPRE]

New Delhi;

January 5, 2018