Sunilkumar Khiyaram vs State Of Gujarat
2021 Latest Caselaw 5074 Guj

              R/CR.MA/474/2021                              JUDGMENT



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 474 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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

2     To be referred to the Reporter or not ?                              NO

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

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

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                                 SUNILKUMAR KHIYARAM
                                         Versus
                                   STATE OF GUJARAT
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Appearance:
HIREN P KANDERA(9497) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR. RONAK RAVAL, APP for the Respondent(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                  Date : 06/04/2021
                                  ORAL JUDGMENT

1. The present application is filed by the applicant seeking following reliefs:-

(B) Your Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing of FIR being registered at Kosamba Town Police Station, Surat being C.R.No.III/23/2018, U/s 65-E,98(2) and 81 of Prohibition Act, (At Annexure-A hereto) as well as all consequential proceedings according to the aforesaid F.I.R.

            R/CR.MA/474/2021                               JUDGMENT




          (C)      During pendency and final disposal of the present

petition, YOUR LORDSHIPS may be pleased to stay further proceedings of F.I.R. being C.R.No.III/23/2018, registered at Kosamba Town Police Station, Surat (At Annexure-A hereto).

2. It is the case of the applicant that FIR being III-C.R.No.23 of 2018 came to be registered under Sections 65E, 98(2) and 81 of the Prohibition Act against one Jitendra @ Lala Sumersingh Jat by the respondent No.2 herein, who happens to be a Police Constable of L.C.B., Surat Rural, Surat. The FIR was lodged as the police authority intercepted a truck bearing registration No.RJ-19-GE-4390, allegedly carrying the product of rice powder along with the bottles of Indian Foreign Made liquor worth Rs.71,26,500/- which was hidden. Pursuant to the FIR, a main accused Jitendra @ Lala Sumersingh Jat was arrested and on the basis of the statement of the said Jitendra, the applicant's name is surfaced, and, therefore, the applicant has preferred the present petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of aforesaid complaint on the ground that there is no material against the applicant and the applicant is implicated as an accused only on account of the statement of the co-accused.

3. Heard learned advocate Mr. Hiren P. Kandera for the applicant and learned APP Mr. Ronak Raval for the respondent-State through video conference.

4. Learned advocate Mr.Kandera has submitted that the complaint lodged against the applicant is required to be quashed as the applicant was never named in the original FIR and he has been implicated as an accused only on account of statement of co-accused without there being any material. According to learned advocate Mr. Kandera there is no recovery or discovery against the applicant and there is no past antecedent. As per the say of the learned advocate

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Mr.Kandera that a mobile number mentioned in the F.I.R. also does not belong to the present applicant.

5. Learned advocate Mr. Kandera has also submitted that it is true that the truck was originally purchased by the applicant, but thereafter the same was transferred in the name of some another person viz. Rajkumar in the year 2017, whereas the F.I.R. was registered in the year 2018, and, therefore, before the offence was committed, the truck, which was used in the offence, had been transferred in the name of some other person and therefore, the applicant is nowhere connected with the offence committed and therefore, the F.I.R. against the present applicant is required to be quashed and set aside. In support of this submission, learned advocate Mr. Kandera relied upon the judgment of this Court in Criminal Revision Application No. 455 of 1998 in case of Suresh Chhotalal Verma v. State of Gujarat , which came to be decided on 07.09.2000. The judgment is only of 4 pages, however, learned advocate for the applicant has produced only pages No. 1, 3 and 4 of the judgment along with this petition and when it was put a question before learned advocate Ms. Kandera about missing page No. 2, he has stated at bar that page no. 2 is not relevant and therefore, he has chosen not to place on record page No. 2 and only relevance portion of the judgment is produced and whatever stated in page no. 2 is not material and he is relying upon the observations made in para 5 of the said judgment.

6. Learned advocate Mr. Kandera emphasis on following observations made in para 5 of the said judgement;

"... If this is the law then the statement of the co- accused during the investigation is neither prima-

facie evidence for the purpose of evidence whatsoever nor it can be said to be material on

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which co-accused can be proceeded with. Of course, if there would have been some other material on which revisionist could be proceeded with, the learned Special Judge could have been said to have been justified in rejecting the application but simply on the strength of the statement of the co-accused recorded by the investigating agency under Section 161 of the Cr.P.C. it cannot be said to be a material sufficientfor proceeding against the revisionist. The order refusing discharge therefore suffers from manifest illegality. The revision in these circumstances has to be allowed and the application for discharge Exh.4 moved by the revisionist has to be allowed."

7. Learned advocate Mr. Kandera on the basis of aforesaid judgment submitted that in view of the aforesaid observations, the statement of the co-accused can neither said to be prima-facie evidence nor it can be said to be a material on which co-accused can proceed with and, therefore, has prayed for quashing the complaint qua the present applicant.

8. Learned APP Mr. Ronak Raval vehemently opposed the petition and has submitted that the applicant is still owner of the truck though transferred the truck in the name of Rajkumar. To substantiate his contention, learned APP Mr.Ronak Raval on instructions received by the Investigating Officer has submitted that even if the truck was transferred in the year 2017, the truck has remained in the name of the present applicant. As per the record of the RTO as well as the record provided by the Insurance Company, the name of the applicant was shown as the owner of the truck. Learned APP further pointed out that he has given the possession of the alleged truck to Rajkumar in the year 2014 then in the year 2017 the ownership of the truck was transferred on 22.12.2017 by a notarized document and therefore, what is required to be seen is the

R/CR.MA/474/2021 JUDGMENT

registration of truck in the RTO and not the notarized document. As per the RTO record, the truck was still in the name of the applicant at the time when the offence took place. Learned APP has submitted that the offence is of the year 2018 and present petition for quashing was preferred in the year 2021 i.e. after almost a period of three years. According to learned APP Mr. Ronak Raval during the pendency of this petition, the charge-sheet was also filed qua the co- accused and the applicant is shown as absconder.

9. Learned APP Mr.Ronak Raval further submitted that the applicant being an absconder, no sympathy be shown against the present applicant and so far as the contention of the learned advocate for applicant that the mobile number mentioned in the FIR does not belong to applicant is concerned, the same can be verified only if the investigation takes place. He has further submitted that preliminary investigation of the main accused reveals that there were even calls between the main accused and the present applicant and call record details were also gathered by the Investigating Officer, and, therefore, considering the fact that the applicant is an absconder and there is voluminous evidence, which indicates the involvement of the applicant in the offence committed, the FIR may not be quashed as prayed for.

10. Learned APP Mr. Raval relies upon the judgment dated 17.09.2020 in Criminal Misc. Application No. 11508 of 2020 passed by the Coordinate Bench of this Court wherein also in a prohibition matter, where the charge-sheet was not filed, this Court, after taking into consideration various judgment, held in paragraph No. 10 to 14 are as under:

"10. From the aforesaid decisions, it would be clear that a statement of co-accused can be considered or treated as a clue or a piece of information to initiate and conduct inquiry/investigation or

R/CR.MA/474/2021 JUDGMENT

to direct the investigation/ inquiry in a particular direction so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide inquiry/investigation reason for continuing initiating further investigation. At the stage when the investigation has commenced or the process is going on any occasion or any question of treating or considering such a statement as evidence does not arise and therefore it would not be proper and just to terminate, i.e. to direct the investigating officer to close the investigation. It is also required to be noted that the admissibility or otherwise of the confessional statement can be examined at the stage of trial and not at the stage of investigation. Thus, Section 25 of the Evidence Act would come into play not at the stage of inquiry/investigation but at the stage of trial.

11. In the present case, it is not in dispute that applicant is named in the FIR as accused No.3 and the investigation is not concluded against him and therefore this Court is of the view that statement of the co-accused can be considered as a clue or a piece of information for the purpose of investigation and the FIR in question cannot be quashed only on the ground that applicant is implicated on the basis of the statement of the co-accused. Further, Section 25 of the Evidence Act would not be applicable at this stage as the investigation is not concluded. Thus, the submissions canvassed by the learned advocate for the the applicant is misconceived.

12. It is surprising that the learned advocate for the applicant has placed reliance upon the interim orders passed by the Coordinate Bench of this Court in similar type of matters. It is well settled that interim orders cannot be considered as a precedent and therefore the said submission canvassed by learned advocate Mr. Baghel for the applicant is also misconceived.

13. Learned advocate Mr. Baghel has placed reliance upon the order dated 25.02.2015 passed in Special Criminal Application No.367 of 2015 where this Court has quashed the FIR. Copy of the said order is placed on record at page 29. If the said order is carefully examined, it is clear that this Court has quashed the FIR against the concerned applicant - accused as there was no material in the papers of the charge-sheet against the applicant-accused. Thus, admittedly this Court has exercised powers under Section 482 of the Code in favour of the concerned accused after filing of the charge-sheet and therefore the said order would also not be helpful to the applicant in the facts of the present case.

14. In view of the aforesaid facts and circumstances the present case and in view of the aforesaid discussion, this Court is not inclined to exercise the powers under Section 482 of the Code. Application is, accordingly, dismissed.

11. Learned APP on the basis of aforesaid judgment has submitted that in the present case also since the charge-sheet is not filed

R/CR.MA/474/2021 JUDGMENT

against the present applicant and the applicant being an absconder, and there are evidence indicates his involvement in the crime, and hence, this Court may not exercise his jurisdiction under Section 482 of the Code of Criminal Procedure, and the petition is required to be dismissed.

12. After having heard both the learned advocates for the respective parties, this Court is of the view that even if there may not be any discovery or recovery against the present applicant, what is required to be seen is whether there is any material, which indicates involvement of the applicant or not. There is voluminous evidence as stated by Mr. Ronak Raval, learned APP, in the form of mobile call details and registration of vehicle in the name of the applicant in the RTO as well as with the Insurance Company are there. Over and above, the facts also remain that the FIR is registered on 27.02.2018, whereas the present petition for quashing of complaint has been preferred after a delay of three years, which is not explained anywhere. If the applicant was not involved at all in offence in that case, the applicant could have approached this Court or any other competent Court seeking appropriate remedy or the remedy of quashing of the FIR qua the applicant at the earliest. In the entire application, the applicant has not stated as to when he came to know about the registration of the FIR, which is sought to be quashed and thereafter what steps were taken by the applicant. Today, the status of the applicant is of the absconder and, therefore, this delay of almost 3 years is required to be seen in light of that and also in light of the material indicating his involvement in the offence i.e. call record between the applicant and main accused, registration of the vehicle in RTO in the name of the applicant and other material. Further, though applicant was very much aware of the registration of offence and about the fact that the applicant was also called by the

R/CR.MA/474/2021 JUDGMENT

investigating officer for carrying out the investigation, in spite of that the applicant has preferred the present petition for quashing after a delay of three years without explaining any delay. The fact has been declared that the word 'absconder' itself suggestive of the falt that there is a prima-facie involvement of the applicant in the offence committed. However, today, unless the investigation takes place, no final opinion can be given. For the investigation, the applicant's presence before the Investigating Officer is required. Today there are some other material against the applicant, which go against the applicant as the applicant's involvement in the crime is based upon the statement of the co-accused. The observations made by this Court in paragraph 10 of the judgement dated 17.09.2020 in Criminal Misc. Application No. 11508 of 2020 is very much relevant. At the cost of repetition, the observations made by the Coordinate Bench of this Court in para 10 and 11 are reproduced hereinbelow;

"10. From the aforesaid decisions, it would be clear that a statement of co-accused can be considered or treated as a clue or a piece of information to initiate and conduct inquiry/investigation or to direct the investigation/ inquiry in a particular direction so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide inquiry/ investigation reason for continuing initiating further investigation. At the stage when the investigation has commenced or the process is going on any occasion or any question of treating or considering such a statement as evidence does not arise and therefore it would not be proper and just to terminate, i.e. to direct the investigating officer to close the investigation. It is also required to be noted that the admissibility or otherwise of the confessional statement can be examined at the stage of trial and not at the stage of investigation. Thus, Section 25 of the Evidence Act would come into play not at the stage of inquiry/investigation but at the stage of trial.

11. In the present case, it is not in dispute that applicant is named in the FIR as accused No.3 and the investigation

R/CR.MA/474/2021 JUDGMENT

is not concluded against him and therefore this Court is of the view that statement of the co-accused can be considered as a clue or a piece of information for the purpose of investigation and the FIR in question cannot be quashed only on the ground that applicant is implicated on the basis of the statement of the co- accused. Further, Section 25 of the Evidence Act would not be applicable at this stage as the investigation is not concluded. Thus, the submission canvassed by learned advocate for the the applicant is misconceived."

13. In view of the aforesaid view taken by the Court, which clearly applies in the present case also, I cannot take a different view expressed by the Coordinate Bench. So far as reliance is placed by the applicant in support of the judgment dated 07.09.2000 in Criminal Revision Application No. 455 of 1998 is concerned, the facts of that case, seems to be different. Though, entire judgment was not annexed with this application, this Court called for the aforesaid judgment and found that the said judgement was in respect of an offence pertaining to Essential Commodities Act, wherein the revision application was preferred against the order of Special Judge, rejecting the application of the revisionist, in that application, seeking discharge on the ground that there is absolutely no material to proceed against him for the alleged offence.

14. In the instance case, apart from the statement of co-accused, there is some material against the present applicant, and therefore, according to me that judgment cited by the applicant will not apply to the facts of the present case. Similarly, today the status of the applicant is of the absconder and the facts of the case relied upon by the learned advocate for the applicant are different from the facts of the case on hand, whereas the judgment relied upon by the learned APP Mr. Ronak Raval clinches the issue as the facts are almost similar and the judgment is also delivered in the case of prohibition

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and deals with the aspects of statement of co-accused at pre charge- sheet stage.

15. Hence, in view of the aforesaid observations, the present petition deserves to be dismissed and the same is dismissed. No order as to costs. `

Sd/-

(NIRZAR S. DESAI,J) VISHAL MISHRA