Dineshbhai Chandubhai Patel ….Appellant(s) VERSUS State of Gujarat & Ors. ….Respondent(s)-a challenge to an FIR

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