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SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, B.V. Nagarathna, JJ.
Jitul Jentilal Kotecha - Appellant
Versus
State of Gujarat & Ors. Etc - Respondents
Criminal Appeal Nos. 1328-1333 of 2021
Decided On : 12-11-2021
(A) Criminal Procedure Code, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 465, 467, 468, 120B and 385 – Forgery, conspiracy and extortion – Partial quashing of criminal proceeding by High Court – Sustainability – High Court must exercise its inherent powers under Section 482 sparingly and with circumspection – Police have a statutory right to investigate a cognizable offence under Sections 154 and 156 of Cr.P.C. – In its interim order High Court allowed investigation to continue against accused but directed that final report cannot be submitted to Magistrate without its permission – Such direction was not supported by any reasoning whatsoever – Even at interim stage, High Court must demonstrate an application of mind and furnish reasons for issuing any interlocutory direction, which is capable of being tested before this Court in an appropriate case – Interim direction amounted to unnecessary interference in investigative process envisaged under Cr.P.C. – High Court transgressed scope of powers conferred upon it by restricting police from submitting charge-sheet before Magistrate and by further perusing contents of draft charge-sheet in proceedings before it – High Court cannot place reliance on a draft charge-sheet which is yet to be placed before Magistrate to quash criminal proceedings under Section 482. (Paras 20 and 21)
(B) Indian Penal Code, 1860 – Sections 465, 467, 468, 120B and 385 – Criminal Procedure Code, 1973 – Section 482 – Forgery, conspiracy and extortion – Partial quashing of criminal proceeding by High Court – Sustainability – Allegations in FIR prima facie indicate that sixth and seventh Respondents were alleged to be involved in extortion of money from appellant – In impugned judgment, High Court has held that allegations on their face disclose that fourth and fifth respondents committed offence of extortion under Section 385 of IPC and directed that investigation be continued against them – However, High Court completely failed to examine allegation of criminal conspiracy qua other accused where it has been alleged that they were also privy to such extortion – In such circumstances, when a specific role was attributed to accused, High Court could not have quashed FIR under Section 482 of Cr.P.C. – High Court proceeded to entertain petitions for quashing under Section 482 at behest of persons who were not named in FIR purely on the basis of their names appearing in draft charge-sheet – A draft charge-sheet was placed before High Court by investigating officer only in order to seek its permission, pursuant to interim order, for submitting charge-sheet to competent court – Persons whose names were mentioned in draft charge-sheet had already moved High Court in proceedings under Section 482 – Appellant has submitted that these developments indicate that accused were complicit with police – High Court should have been alive to abuse of its process – Judgment of High Court indicates that while analyzing case set up before it by applicants in various quashing petitions, it has proceeded to quash FIR and draft charge-sheet in respect of applicants who were not even arraigned as accused in FIR – Interference by High Court in investigation against eighth and ninth respondents was at a premature stage and was not warranted – Other accused are allegedly persons who had executed champertous agreements or aided in their execution and who are alleged to have been party to extortion of money from appellant – High Court transgressed limitations on exercise of its jurisdiction under Section 482 of Cr.P.C. in quashing FIR and all consequential proceedings – There has been clear abuse of process before High Court – Impugned judgment and order of High Court set aside. (Paras 23, 24, 25, 26 and 27)
Facts of the case:
Present batch of appeals arises from a judgment and order dated 8th January 2019 of a Single Judge of the High Court of Gujarat. The High Court quashed an FIR which was registered against the private respondents under Section 482 of Code of Criminal Procedure 1973, except for the allegations against fourth and fifth respondents under Section 385 of Indian Penal Code 1860 in respect of which the investigation has been permitted to continue.
Findings of Court:
Draft charge-sheet records the filing of the petitions for quashing in the High Court which would indicate that even before charge-sheet was brought to the notice of the High Court, petitions for quashing had already been filed. The High Court ought to have taken note of these developments. The appellant has submitted both in the course of the oral and written submissions that these developments indicate that the accused were complicit with the police. The High Court should have been alive to the abuse of its process.
Result : Criminal Appeals Partly allowed.
JUDGMENT :
Dhananjaya Y Chandrachud, J.
1. This batch of appeals arises from a judgment and order dated 8 January 2019 of a Single Judge of the High Court of Gujarat. The High Court quashed an FIR1[FIR No I-124 of 2016] which was registered against the private respondents under Section 482 of the Code of Criminal Procedure 19732[“CrPC”], except for the allegations against the fourth and fifth respondents under Section 385 of the Indian Penal Code 18603[“IPC”], in respect of which the investigation has been permitted to continue.
2. On 13 April 2016, an FIR4[FIR No I-124 of 2016] was registered against the private respondents under Sections 465, 467, 468 and 120B of the IPC by the Gandhigram Police Station, Rajkot on a complaint made by the appellant. The contents of the FIR are elucidated below.
3. A property located in Village Veja at Rajkot is alleged to have been allotted to Shamjibhai Jesabhai Koli by the government on account of his service in the Army. The appellant has alleged that he and his brother purchased the property for a consideration of Rs 7,75,000 and an agreement to sell was executed in their favour by Shamjibhai before a notary. An irrevocable power of attorney was allegedly executed in favour of the appellant and his brother for clearing the title to the land and for obtaining the sanction of the government. The appellant alleged that in 1999, he paid an amount of Rs 4,00,000 by a demand draft and Rs 4,00,000 in cash to the vendor. Shamjibhai is alleged to have registered a sale deed on 19 May 1999 in favour of the appellant, his father and his brothers. Shamjibhai is alleged to have also executed a power of attorney in favour of the appellant and his father-in-law on the same date. The power of attorney mentioned that Shamjibhai had accepted the consideration for the land and had handed over possession to the appellant and his family. Shamjibhai is alleged to have executed another agreement mentioning that an amount of Rs 2,00,000 was due to be paid to him. On 9 January 2006, the Government of Gujarat granted permission for the sale of the land and a premium of Rs 13,76,000 was allegedly paid by the appellant and his family. As the power of attorney holder, the appellant’s father-in-law sold the land to Om Prakash Kotecha, Mukul Kotecha, Ketan Kotecha and his wife Deepaben and registered a sale deed in this regard. The appellant claims that he has been in possession of the property since 1999.
4. The appellant has alleged that the second and third respondents, who are daughters of Shamjibhai, instituted a suit5[Civil Suit No 157 of 2011] in 2011 for cancellation of the sale deed executed by Shamjibhai in favour of the appellant. The civil court by its order dated 8 February 2013 granted an interim injunction restraining the appellant from alienating, transferring or assigning the property during the pendency of the suit.
5. It is alleged that the second and third respondents executed a power of attorney in favour of the seventh respondent in relation to the property, for a consideration of Rs 5,51,000. A Memorandum of Understanding6[“MoU”] was also executed stipulating that the land is to be sold for Rs 2 crores. The second and third respondents are alleged to have executed another power of attorney and MoU with the sixth respondent, against a payment of Rs 5,00,000.
6. On 20 March 2015, prior to the FIR which was registered at the behest of the appellant, an FIR7[FIR No I-11 of 2015] was registered against the appellant and the members of his family on a complaint lodged by the second respondent for offences punishable under Sections 406, 409, 420, 465, 467, 471, 447, 34, 114 and 120B of the IPC at DCB Police Station, Rajkot alleging that the property had been obtained by the appellant without payment of the entire consideration. The appellant has contended that the second respondent did not disclose that
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