RAFIQ AHMEDBHAI PALIWALA versus THE STATE OF GUJARAT & ORS.
[2019] 4 S.C.R. 218, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SUPREME COURT REPORTS
[2019] 4 S.C.R.
RAFIQ AHMEDBHAI PALIWALA
v.
THE STATE OF GUJARAT & ORS.
(Criminal  Appeal No. 506 of 2019)
MARCH 15, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Criminal Procedure, 1973 – s.482 – Petition u/s.482,
CrPC filed by respondent nos. 2 to 17 – High Court allowing the
same, quashed the FIR insofar it related to the offences punishable
u/ss.392, 395 and 397, IPC while upheld it insofar it related inter
alia to the offences punishable u/ss. 143, 147, 148 and 323, IPC –
Held: High Court erred in entertaining the petition filed by the
respondents and further erred in allowing it in part – No proper
investigation could be made by the Investigating Officer (IO) much
less concluded on the basis of the FIR lodged by the complainant
and before it could be brought to its logical conclusion, the impugned
order intervened resulting in quashing of the FIR itself in relation
to cognizable offences which were of more serious in nature than
the remaining ones which survived for being tried – Impugned order
set aside – IO to make proper investigation into the allegations
made in the original FIR lodged and after conclusion of the
investigation to file additional charge sheet in relation to any other
offences, if found made out.
Allowing the appeal, the Court
HELD: 1.1 The High Court erred in entertaining the petition
filed by respondent Nos. 2 to 17 under Section 482 of the Code
of Criminal Procedure, 1973 and further erred
in allowing it in
part. No proper investigation could be made by the Investigating
Officer (IO) much less concluded on the basis of the FIR lodged
by the complainant and before it could be brought to its logical
conclusion, the impugned order intervened resulting in quashing
of the FIR itself in relation to cognizable offences which were of
more serious in nature than the remaining one which survived
for being tried. [Paras 9, 10][221-A, B]
[2019] 4 S.C.R. 218
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1.2  The High Court instead of quashing the FIR at such a
preliminary stage should have directed the IO to make proper
investigation on the basis of the FIR and then file proper charge
sheet on the basis of the material collected in the investigation
accordingly. It was,  however, not done.  It was more so because
the FIR did disclose prima facie allegations of commission of
concerned offences. The approach of the High Court, therefore
cannot be countenanced when it proceeded to quash the FIR
partly in relation to more serious offences (Sections 392, 395
and 397 IPC) without allowing the IO to make proper investigation
into 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, the
IO shall now make full and proper investigation into the
allegations made in the original FIR lodged and after conclusion
of the investigation will file additional charge sheet in relation to
any 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 Court
of Gujarat at Ahmedabad in Criminal Misc. Application No.29936 of
2017.
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 order
dated 11.12.2017 passed by the High Court of Gujarat at Ahmedabad  in
Criminal Misc. Application(for quashing & Set aside FIR) No.29936 of
2017 whereby the High Court allowed the said application filed by
respondent Nos.2-17 herein.
RAFIQ AHMEDBHAI PALIWALA v. THE STATE OF GUJARAT
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SUPREME COURT REPORTS
[2019] 4 S.C.R.
3. This appeal involves a short point as would be clear from the
facts stated infra.
4. By impugned order, the High Court, in exercise of its inherent
powers under Section 482 of the Code of Criminal Procedure,
1973(hereinafter referred to as “the Code”) allowed the petition filed by
respondent Nos. 2 to 17 herein  and quashed FIR being I-CR No. 67 of
2017 registered with the Gaekwad Haveli Police Station, Ahmadabad in
part insofar it relates to the offences punishable under Sections 392, 395
and 397 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”)
and upheld it insofar as it relates to the offences punishable under Sections
143, 147, 148 and 323 of IPC read with Section 135 (1) of the GP Act.
5. The complainant has felt aggrieved by the impugned order and
has filed this appeal by way of special leave in this Court.
6. So, the short question, which arises for consideration in this
appeal,  is whether the High Court was justified in allowing the petition
and quashing the FIR insofar as it relates to the offences punishable
under Sections 392, 395 and 397 IPC.
7. The order impugned reads as under:
“Having heard the learned counsel appearing for the parties
and having considered the materials on record, I am of the
view that even if the entire case of the prosecution is
believed or accepted as true, none of the ingredients to
constitute the offence of Sections 392, 395 or 397 are spelt
out.  By any
stretch of imagination, it cannot be said that
the common object of the unlawful assembly was to commit
dacoity.
In such circumstances, I have no hesitation in quashing
the FIR so far as Sections 392, 395 and 397 of the Indian
Penal Code is concerned.  So far as the other offences are
concerned, the investigation shall proceed in accordance
with law.
With the above, this application is disposed of.  Direct
service is permitted.”
8. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are constrained to allow the appeal and set
aside the impugned order.
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9. In our view, the High Court erred in entertaining the petition
filed by respondent Nos. 2 to 17 under Section 482 of the Code and
further erred in allowing it in part.
10. It is not in dispute that no proper investigation could be made
by the Investigating Officer (IO) much less concluded on the basis of
the FIR lodged by the complainant and before it could be brought to its
logical conclusion, the impugned order intervened resulting in quashing
of the FIR itself in relation to cognizable offences which were of more
serious in nature than the remaining one which survived for being tried.
11. The High Court, in our view, instead of quashing the FIR at
such a preliminary stage should have directed the IO to make proper
investigation on the basis of the FIR and then file proper charge sheet on
the basis of the material collected in the investigation accordingly. It
was,  however, not done.  It was more so because, we find that FIR did
disclose prima facie allegations of commission of concerned offences.
12. We cannot, therefore, countenance the approach of the High
Court when it proceeded to quash the FIR partly in relation to more
serious offences (Sections 392, 395 and 397 IPC) without allowing the
IO to make proper investigation into its allegations.
13. In the light of the foregoing discussion, the appeal succeeds
and is accordingly allowed. The impugned order is set aside.
14. We are, 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, the IO shall now make full and proper investigation into the
allegations made in the original FIR lodged and after conclusion of the
investigation will file additional charge sheet in relation to any other
offences, if found made out.
15. Needless to say, the IO will make investigation strictly in
accordance with law without being influenced by any observations. Let
this be done within 3 months as an outer limit.
Divya Pandey
                  Appeal allowed.
RAFIQ AHMEDBHAI PALIWALA v. THE STATE OF GUJARAT
[ABHAY MANOHAR SAPRE, J.]