RAFIQ AHMEDBHAI PALIWALA versus THE STATE OF GUJARAT & ORS. on 15 March 2019

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SUPREME COURT REPORTS

[2019] 4 S.C.R.

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RAFIQ AHMEDBHAI PALIWALA

v.

THE STATE OF GUJARAT & ORS.

(Criminal Appeal No. 506 of 2019)

BMARCH 15, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973 – s.482 – Petition u/s.482,CrPC filed by respondent nos. 2 to 17 – High Court allowing theCsame, quashed the FIR insofar it related to the offences punishableu/ss.392, 395 and 397, IPC while upheld it insofar it related interalia to the offences punishable u/ss. 143, 147, 148 and 323, IPC –Held: High Court erred in entertaining the petition filed by therespondents and further erred in allowing it in part – No properDinvestigation could be made by the Investigating Officer (IO) muchless concluded on the basis of the FIR lodged by the complainantand before it could be brought to its logical conclusion, the impugnedorder intervened resulting in quashing of the FIR itself in relationto cognizable offences which were of more serious in nature thanthe remaining ones which survived for being tried – Impugned orderEset aside – IO to make proper investigation into the allegationsmade in the original FIR lodged and after conclusion of theinvestigation to file additional charge sheet in relation to any otheroffences, if found made out.

Allowing the appeal, the CourtF

HELD: 1.1 The High Court erred in entertaining the petitionfiled by respondent Nos. 2 to 17 under Section 482 of the Codeof Criminal Procedure, 1973 and further erred in allowing it inpart. No proper investigation could be made by the InvestigatingOfficer (IO) much less concluded on the basis of the FIR lodgedGby the complainant and before it could be brought to its logicalconclusion, the impugned order intervened resulting in quashingof the FIR itself in relation to cognizable offences which were ofmore serious in nature than the remaining one which survivedfor being tried. [Paras 9, 10][221-A, B]

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1.2 The High Court instead of quashing the FIR at such apreliminary stage should have directed the IO to make properinvestigation on the basis of the FIR and then file proper chargesheet on the basis of the material collected in the investigationaccordingly. It was, however, not done. It was more so becausethe FIR did disclose prima facie allegations of commission ofconcerned offences. The approach of the High Court, thereforecannot be countenanced when it proceeded to quash the FIRpartly in relation to more serious offences (Sections 392, 395and 397 IPC) without allowing the IO to make proper investigationinto its allegations. [Paras 11, 12][221-C, D]

1.3 The impugned order is set aside. It is, however,informed that pursuant to the directions issued by the High Court,the charge sheet has been filed in relation to the minor offences,which survived after quashing of the FIR. Be that as it may, theIO shall now make full and proper investigation into theallegations made in the original FIR lodged and after conclusionof the investigation will file additional charge sheet in relation toany other offences, if found made out. [Paras 13, 14][221-E, F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.506 of 2019.

From the Judgment and Order dated 11.12.2017 of the High Courtof Gujarat at Ahmedabad in Criminal Misc. Application No.29936 of2017.

Pradhuman Gohil, Mrs. Taruna Singh Gohil, Himanshu Chaubey,Ms. Tanvi Bhatnagar, Advs. for the Appellant.

Jesal Wahi, Ms. Hemantika Wahi, Ms. Vishakha, C.B. Gururaj,K.P. Singh, Prakash Ranjan Nayak, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 11.12.2017 passed by the High Court of Gujarat at Ahmedabad inCriminal Misc. Application(for quashing & Set aside FIR) No.29936 of2017 whereby the High Court allowed the said application filed byrespondent Nos.2-17 herein.

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A3. This appeal involves a short point as would be clear from thefacts stated infra.

4. By impugned order, the High Court, in exercise of its inherentpowers under Section 482 of the Code of Criminal Procedure,1973(hereinafter referred to as “the Code”) allowed the petition filed byBrespondent Nos. 2 to 17 herein and quashed FIR being I-CR No. 67 of2017 registered with the Gaekwad Haveli Police Station, Ahmadabad inpart insofar it relates to the offences punishable under Sections 392, 395and 397 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”)and upheld it insofar as it relates to the offences punishable under Sections143, 147, 148 and 323 of IPC read with Section 135 (1) of the GP Act.C

5. The complainant has felt aggrieved by the impugned order andhas filed this appeal by way of special leave in this Court.

6. So, the short question, which arises for consideration in thisappeal, is whether the High Court was justified in allowing the petitionDand quashing the FIR insofar as it relates to the offences punishableunder Sections 392, 395 and 397 IPC.

7. The order impugned reads as under:

“Having heard the learned counsel appearing for the partiesand having considered the materials on record, I am of theEview that even if the entire case of the prosecution isbelieved or accepted as true, none of the ingredients toconstitute the offence of Sections 392, 395 or 397 are speltout. By any stretch of imagination, it cannot be said thatthe common object of the unlawful assembly was to commitdacoity.F

In such circumstances, I have no hesitation in quashingthe FIR so far as Sections 392, 395 and 397 of the IndianPenal Code is concerned. So far as the other offences areconcerned, the investigation shall proceed in accordancewith law.

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With the above, this application is disposed of. Directservice is permitted.”

8. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal and setHaside the impugned order.

9. In our view, the High Court erred in entertaining the petitionfiled by respondent Nos. 2 to 17 under Section 482 of the Code andfurther erred in allowing it in part.

10. It is not in dispute that no proper investigation could be madeby the Investigating Officer (IO) much less concluded on the basis ofthe FIR lodged by the complainant and before it could be brought to itslogical conclusion, the impugned order intervened resulting in quashingof the FIR itself in relation to cognizable offences which were of moreserious in nature than the remaining one which survived for being tried.

11. The High Court, in our view, instead of quashing the FIR atsuch a preliminary stage should have directed the IO to make properinvestigation on the basis of the FIR and then file proper charge sheet onthe basis of the material collected in the investigation accordingly. Itwas, however, not done. It was more so because, we find that FIR diddisclose prima facie allegations of commission of concerned offences.

12. We cannot, therefore, countenance the approach of the HighCourt when it proceeded to quash the FIR partly in relation to moreserious offences (Sections 392, 395 and 397 IPC) without allowing theIO to make proper investigation into its allegations.

13. In the light of the foregoing discussion, the appeal succeedsand is accordingly allowed. The impugned order is set aside.

14. We are, however, informed that pursuant to the directionsissued by the High Court, the charge sheet has been filed in relation tothe minor offences, which survived after quashing of the FIR. Be thatas it may, the IO shall now make full and proper investigation into theallegations made in the original FIR lodged and after conclusion of theinvestigation will file additional charge sheet in relation to any otheroffences, if found made out.

15. Needless to say, the IO will make investigation strictly inaccordance with law without being influenced by any observations. Letthis be done within 3 months as an outer limit.

Divya Pandey

Appeal allowed.

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