1. The present application has been filed by the applicantsoriginal accused under Section 482 of the Code of Criminal Procedure, 1973 for the following prayers : “(A) YOUR LORDSHIPS may be pleased to quash and set aside the FIR being C. R. No. I – 39 / 2012 registered with D.C.B. Crime Police Station, Ahmedabad City, Ahmedabad, Gujarat, and all the consequential proceedings arising from the said FIR, and
(B) YOUR LORDSHIPS may be pleased to order that pending admission and final disposal of his petition, the investigation in connection with the said FIR being C. R. No. I – 39 / 2012 registered with D.C.B. Crime Police Station, Ahmedabad City, Ahmedabad, Gujarat, be stayed, and
(C) YOUR LORDSHIPS may be pleased to grant such other and further relief's to the petitioners, as are deemed just and proper in the facts and circumstances of the case and in the interest of justice.”
2. Heard learned Sr. Counsel, Mr.P.M. Thakkar appearing with learned counsel, Mr.A.C. Choksi for the applicants and learned APP Ms.A.C. Raval for the respondent no.1State of Gujarat.
3. Learned Sr. Counsel, Mr.Thakkar has contended that the complaint is being filed after a long delay of about one year. He has therefore submitted that the complaint is filed as an afterthought as no reasons are offered for the delay. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Kishan Singh (D) Through L.Rs. Vs. Gurpal Singh, reported in (2010) 8 SCC 775. He has submitted that FIR has been lodged only after meeting their Waterloo in the Civil Court. He submitted that it would suggest that it is filed only with an intention to cause harassment to the accused and, therefore, the present application may be allowed. He has referred to the papers at length with regard to the details. He has further stated that though the father of the applicant no.2 i.e. the applicant no.1 has nothing to do with the transaction, he has been falsely implicated in offence to pressurize the applicant no.2. He submitted that as the respondent no.2original complainant is having high influence because his father was working in the Police department, impugned FIR has been filed. He has referred to the background of the facts and submitted that necessary ingredient for the alleged offence cannot be said to have been made out, for which, he has referred to the papers including the notice in the newspapers. He submitted that the conduct of the respondent no.2original complainant is also required to be considered. He has referred to the papers in detail at length to support his submission that the respondent no.2 has executed two sale deeds without disclosing the fact regarding the execution of the power of attorney in favour of the applicant no.2. In fact, it was submitted that after executing the power of attorney in favour of the applicant no.2 on 17.02.2011, he has pocked huge amount of Rs.2,29,00,000/ and the respondent no.2original complainant has executed two different sale deeds without knowledge or intimation to the applicant no.2. He therefore tried to submit that no reasonable man would accept the statement in the complaint. He submitted that Rs.11.00 lacs, which is stated to have been for the stamp duty and to take care of the property is not believable. He has referred to the papers of the income tax and submitted that the applicant no.2 has disclosed the transaction regarding the purchase of the land in his income tax return, which is produced at AnnexureC and submitted that it would establish the bonafide of the applicant no.2 as purchaser of the property for valid consideration. He has referred to the FIR with regard to the manner in which the power of attorney has been executed in the office of the Police Commissioner and submitted that it is not believable.
4. Learned APP Ms.A.C. Raval appearing for the respondent no.1State of Gujarat has referred to the papers including the FIR and submitted that at this stage the statement in the FIR is required to be considered as to whether primafacie offence is disclosed or not and the Court is not required to appreciate or examine the details. She has further submitted that manner in which the power of attorney is alleged to have been executed and it is stated in the complaint by the complainant how he was called in the office of the Police Commissioner and, thereafter, the power of attorney was executed stating that copy would be given to him and the offence as alleged has been committed of cheating and breach of trust. She submitted that though the ingredient for the alleged offences, which have been referred to, is not required to be examined in detail as it could be considered as stated in the FIR whether prima facie offence is disclosed or not. She further submitted that the submission that FIR has been filed only by way of causing harassment as an afterthought cannot be accepted at this stage. She submitted that scope of exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 is very limited and, therefore, the Court may not entertain the present application.
5. In view of the rival submissions, it is required to be considered whether the present application for quashing the FIR can be entertained or not.
6. The submissions have been made as recorded hereinabove at length that there is a delay in filing the complaint and it is filed as an afterthought and the ingredients for the offences are not fulfilled. However, it is also well accepted that inherent power should not be exercised so as to stifle the prosecution at the inception even before the material and evidence is collected. The submissions, which have been made at length particularly with regard to the ingredients for the offence and that there is no entrustment of the property and no primafacie case is made out, cannot be readily accepted in asmuchas it is still a matter which can be considered on the basis of the further material and evidence during investigation. The averments in the complaint are required to be considered whether it primafacie constitute the offence and looking to all surrounding circumstances, if the allegations in the FIR do not appear to be thoroughly baseless, the matter should be allowed to proceed and the High Court would be slow in exercise its discretion under Section 482 of the Code of Criminal Procedure, 1973. The exercise of discretion under Section 482 of the Code of Criminal Procedure, 1973 would not justify that no investigation is permitted to be carried out merely because there are some arguable points, which could have a relevance for the purpose of defence at an appropriate stage but it could not be said that the allegations in the FIR should be brushed aside at threshold. It is required to be mentioned that if at all after investigation there is further material, the applicantaccused may file discharge application but if the FIR is quashed at this stage, it would cause prejudice to the rights of the complainant as the Court is required to come to a conclusion without proper examination of the material and evidence, which is not completely placed or collected. The Hon'ble Apex Court has expressed the word of caution in such situation and has clearly observed in a judgment in the case of Inder Mohan Goswami & Anr.
v. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1 as under: “The powers possessed by the High Court 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 should normally refrain from giving a prima facie decision in a case where all the facts are 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 such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hardandfast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.”
7. Moreover, a useful reference can be made to the judgment of the Hon'ble Apex Court in case of Popular Muthiah Vs. State represented by Inspector of Police, reported in 2006 (7) SCC 296, wherein referring to the scope of exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, the Hon'ble Apex Court has clearly observed that “in respect of the incidental or supplemental power, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. ........ (iii) However, the power under Section 482 CrPC is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exits.” Same principle has been reiterated and it has been observed in this judgment that “The decisions of this Court emphasised the fact that there exists a distinction between two classes of cases, viz., (i) where application of Section 482 is specifically excluded and (ii) where there is no specific provision but limitation of the power which is sought to be exercised has specifically been stated.”
8. Again referring to the guidelines laid down by the Hon'ble Apex Court in a judgment in case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, it has been specifically observed that exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 would be justified only in such cases, which have been broadly referred as guidelines. In the facts of the present case, it cannot be said that it would be covered by these guidelines merely because some averments are made.
The broad facts which have been referred to itself at the same time make investigation necessary. It is only at that stage, a clear picture may emerge and the accused may have recourse by making an application for discharge. Therefore, it is not desirable to come to any conclusion at the threshold and the High Court as observed in catena of judicial pronouncement would decline to exercise the discretion under Section 482 of the Code of Criminal Procedure, 1973.
9. The submissions, which have been made at length referring to the ingredients for the alleged offences that none of the offence can be said to have been made again would depend upon the totality of the facts and material/evidence collected during the investigation. It is not necessary that every fact has to be written in the FIR itself. The Hon'ble Apex Court in a judgment in case of Rajesh Bajaj Vs. State NTC of Delhi & Ors., reported in AIR 1999 SC 1216 has clearly observed that “it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details”.
10. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of A.P. State Road Transport Corporation, Vs. M. Gurivi Reddy & Ors., reported in AIR 1992 SC 1319. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Union of India Vs. Prakash P. Hinduja, reported in AIR 2003 SC 2612, wherein it has been observed that the “Court would not interfere with the investigation or during the course of investigation which would mean from the of the lodging of the FIR till the submission of the report by the office of police station in Court under S. 173(2), Cr.P.C., this field being exclusively reserved for the investigating agency. Inherent powers under S. 482 cannot be exercised by Court”.
11. Therefore, the Code of Criminal Procedure, 1973 is itself a complete code as observed by the Hon'ble Apex Court in case of Popular Muthiah (supra) that the Code of Criminal Procedure provides is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the facts, which have been narrated in detail.
12. Therefore, inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised as sought to be canvassed in the facts of the present case. Therefore, the present application deserve to be dismissed and accordingly stand dismissed.
/patil
Sd/ (RAJESH H.SHUKLA, J.)