NEUTRAL CITATION
R/CR.MA/5265/2020 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5265 of 2020
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PAVANSINGH S/O BHAKHARSINGH RATHOD (RAJPUT)
Versus
STATE OF GUJARAT
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Appearance:
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/09/2023
ORAL ORDER
1. Heard learned advocate Mr.Pawan Barot for the petitioner and learned APP Mr.Chintan Dave for the respondent - State.
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- 263 of 2018 registered with Chhapi Police Station, Banaskantha, for the offence under sections 65(a)(e), 116-B, 81, 98 (2) and 99 of the Gujarat Prohibition Act.
3. The facts giving rise to the filing of the present Application are that on 2.8.2018, a secret information was received by the Police Authorities to the effect that one truck (trailer) bearing Registration No. RJ 07 GB 0775 is lying at Page 1 of 6 Downloaded on : Sat Sep 16 17:07:06 IST 2023 NEUTRAL CITATION R/CR.MA/5265/2020 ORDER DATED: 13/09/2023 undefined Hotel Apollo, Chhapi Police Area on Palanpur Mehsana highway and upon search it was found that total 10,800 bottles amounting to Rs.43,20,000/- are being transported and one person is found from the place of incident. It is stated that arrested person revealed the name of present accused, who has instructed/ loaded the truck from Ambala-Hariyana, and does not know the person to whom the consignment is to be delivered. With these facts, the FIR being C.R.No.III- 263 of 2018 came to be registered with Chhapi Police Station, Banaskantha.
4. Learned advocate Mr.Barot for the petitioner would submit that the petitioner has not played any role in commission of offence. He would submit that on bare reading of FIR, no offence is made out. He would further submit that main accused-Hariram Sattaram Dolaram Jaat (Chaudhary) is acquitted by the concerned trial Court in Criminal Case No.710 of 2018. 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 present accused is different. The Page 2 of 6 Downloaded on : Sat Sep 16 17:07:06 IST 2023 NEUTRAL CITATION R/CR.MA/5265/2020 ORDER DATED: 13/09/2023 undefined petitioner has facilitated 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 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 is 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. It appears that present petitioner is not arrested from the place of incident nor he is found in conscious possession of muddamal and even the alleged vehicle is not belonging to the petitioner. 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 co-accused, allowing trial against the present petitioner would be futile exercise.
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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 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 Page 4 of 6 Downloaded on : Sat Sep 16 17:07:06 IST 2023 NEUTRAL CITATION R/CR.MA/5265/2020 ORDER DATED: 13/09/2023 undefined 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 a cognizable offence but constitute only a noncognizable 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 institution 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 Page 5 of 6 Downloaded on : Sat Sep 16 17:07:06 IST 2023 NEUTRAL CITATION R/CR.MA/5265/2020 ORDER DATED: 13/09/2023 undefined 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 C.R.No.III-263 of 2018 registered with Chhapi Police Station, Banaskantha, and all consequential proceedings arising therefrom are hereby quashed and set aside qua present petitioner.
(SANDEEP N. BHATT,J) R.S. MALEK Page 6 of 6 Downloaded on : Sat Sep 16 17:07:06 IST 2023