Nareshbhai Devchansbhai Patel vs State Of Gujarat

                                                                                    NEUTRAL CITATION




     R/CR.MA/2276/2014                               JUDGMENT DATED: 09/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 2276 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1      Whether Reporters of Local Papers may be allowed                  No
       to see the judgment ?

2      To be referred to the Reporter or not ?                           No

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?

4      Whether this case involves a substantial question                 No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         NARESHBHAI DEVCHANSBHAI PATEL
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 09/08/2023

                                 ORAL JUDGMENT

1. Heard learned advocate Mr. Hardik Dave for the petitioner and learned APP Mr. Ronak Raval for the respondent - State.

NEUTRAL CITATION R/CR.MA/2276/2014 JUDGMENT DATED: 09/08/2023 undefined

2. By way of this petition under section 482 of Cr.P.C., the petitioner has prayed to quash the FIR being C.R.No.III-552 of 2013 registered with Umra Police Station for the offence under sections 66(1)B, 65EA, 116B, 81, 99 of the Gujarat Prohibition Act.

3. It is alleged that the petitioner is owner of Xylo Car No.GJ- 5-CR-7111. It is further alleged that his sister Dimple and brother in law of the petitioner were caught red handed in transporting Indian made foreign liquor in the said Car. Upon such allegations, FIR came to be registered against the petitioner as well as sister and brother in law of the petitioner.

4. Learned advocate Mr. Dave for the petitioner would submit that the petitioner has not played any role in commission of offence. He would submit that bare face of FIR, no offence is made out. He would further submit that main accused - Dimple and her husband Anilbhai are acquitted by the concerned Court in Criminal Case No.11598 of 2014. He would further submit that in this circumstances, if allowing petitioner to face trial, which could roll out on completion of investigation and filing of charge sheet against him would be futile exercise. He therefore, submits to allow this petition.

5. Learned APP objected the arguments at his vehemence and submits that role of 3 accused are different. The petitioner has facilitated 2 other co-accused in transporting Indian made foreign liquor by providing car knowing fully well that they are transporting Indian made foreign liquor. In this circumstances, let there be trial against the petitioner. He would submit that by Page 2 of 5 Downloaded on : Sun Sep 17 00:47:54 IST 2023 NEUTRAL CITATION R/CR.MA/2276/2014 JUDGMENT DATED: 09/08/2023 undefined allowing this petition, the prosecution case should not be shattered at threshold. This submission are made to reject the petition.

6. Having heard learned advocates for both the sides, at the outset it is noted that trial against the main accused are completed. Learned JMFC has recorded clear acquittal in favour of co-accused believing that contents of the FIR which has culminated into charge sheet is not correct and not proving any offence. Perusing the FIR, it appears that against present petitioner allegation of providing car to transport Indian made foreign liquor is made. Looking to the role alleged to have been played by the petitioner in connection the FIR, it is much less than the alleged role played by other co-accused. Since jurisdictional Court did not find substance in the allegations made by the prosecution and acquitted other two co-accused, allowing trial against the present petitioner would be futile exercise.

7. The circumstances spells that parameters stated in the judgment in the case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604 are attracted. While interpreting section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India, principally, inherent power of this Court, the Hon'ble Apex Court made following observations:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the Page 3 of 5 Downloaded on : Sun Sep 17 00:47:54 IST 2023 NEUTRAL CITATION R/CR.MA/2276/2014 JUDGMENT DATED: 09/08/2023 undefined extraordinary power under Article 226 or the inherent powers u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute Page 4 of 5 Downloaded on : Sun Sep 17 00:47:54 IST 2023 NEUTRAL CITATION R/CR.MA/2276/2014 JUDGMENT DATED: 09/08/2023 undefined a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. For the foregoing reasons, present petition is hereby allowed and FIR being III - C.R. No.552 of 2013 registered with Umra Police Station and all consequential proceedings arising therefrom are hereby quashed and set aside. Rule is made absolute.

(J. C. DOSHI,J) SATISH Page 5 of 5 Downloaded on : Sun Sep 17 00:47:54 IST 2023