Panchabhai Naranbhai Kodiyatar vs State Of Gujarat
2021 Latest Caselaw 4296 Guj

        R/CR.MA/16093/2020                                        JUDGMENT




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO.                 16093 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                     PANCHABHAI NARANBHAI KODIYATAR
                                  Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
MS MOXA THAKKER, APP for the Respondent(s) No. 1
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    CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 17/03/2021

                               ORAL JUDGMENT

1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the FIR being C.R. No.11186007200860 of 2020 registered with Talala Police Station, Gir­Somnath

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for the offence punishable under Sections 65(e), 98(2), 99 and 81 of the Gujarat Prohibition Act.

2. Heard learned advocate Mr. Bhavin S. Raiyani for the applicant and learned APP Ms. Moxa Thakker for the respondent - State.

3. It is mainly contended by learned advocate for the applicant that though applicant was not present at the place of incident, on the basis of the statement of co­ accused he has been implicated in the FIR in question and shown as original accused No.3. It is submitted that though there is no material, applicant has been implicated on the basis of the statement of the co­ accused. It is also submitted that statement of the co­ accused is not admissible under Section 25 of the Evidence Act and therefore the FIR in question be quashed and set aside. In support of his submission, learned advocate has placed reliance upon the interim orders passed by the Coordinate Bench of this Court in similar matters. It is also contended that this Court has also quashed and set aside the FIR in Special Criminal Application No.367 of 2015 vide order dated 25.02.2015 and therefore the impugned FIR be quashed and set aside.

4. Per contra, learned APP submitted that the applicant has filed this application at the stage when the charge­sheet is not filed and investigation is still going on. It is submitted that the applicant is named in the FIR as accused No.3 and he was the receiver of the goods. She submitted that there are

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five criminal antecedents registered against the present applicant. It is further submitted that statement of the co­accused can be considered as a clue for the purpose of investigation and therefore till the charge­sheet is filed, it cannot be contended that there is no material with the investigating agency. It is also submitted that interim orders passed by the Coordinate Bench in other cases may not be considered by this Court.

5. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the applicant is shown as accused No.3 in the FIR. Thus, when the FIR was registered, his name was disclosed by the co­accused. It is not in dispute that till date charge­sheet is not filed against the applicant and therefore it is not open for the applicant to contend that there is no material against him except the statement of the co­ accused.

6. At this stage, it is relevant to note that this Court has observed in the case of Saleem Abdul Raheman Eracham Veetil Vs. State of Gujarat and Ors., reported in 2019 GLH(2) 155, in paragraph nos.36 and 37, as under:

"36. The proposition of the applicant that the statement of the coaccused is not admissible under section 25 of the Evidence Act is not palatable at this stage when the investigation is yet to be completed. Such statement can be considered for further corroboration. The court cannot scuttle the investigation prematurely at treating such statement as evidence at the

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stage of investigation does not arise.

37. In the petition filed for quashing under section 482 of the Cr.P.C., where the accused was absconding and charge sheet was filed qua other accused, this Court in the case of Nadirkhan Babakhan Navabkhan Pathan (supra) has observed thus:

"In view of the fact that petitioner was not available at the time of investigation, charge­ sheets qua other accused were required to be submitted within the stipulated time into the court. Had this not been done by the investigating agency, it is possible that other accused in the cases may claim default bail and hence, charge­ sheets qua the other accused were correctly submitted and since the petitioner was not available, his name was shown as absconding accused. Merely because of the fact that charge­ sheets were submitted qua the accused who were available for investigation does not mean that investigation qua the present petitioner was completed or he can take benefit by evading investigation. Since the name of present petitioner was shown as absconding accused, it means that he was not available for interrogation or investigation and hence, it would be in the fitness of things that investigating agency be permitted to carry out investigation in the matters for reaching the roots of the offences. Since the only evidence available against the petitioner is the clue given by the co­accused to the Investigating Officer, it is the duty of the petitioner to help the investigating agency for the same rather than requesting the Court at this stage under Section 482 of the Code of Criminal Procedure for quashing the complaints or deleting his name from the respective charge­sheets."

7. In another case of Dolatram Tekchand Harjani v. State of Gujarat, reported in 2013 (3)GLR 2133, this Court has considered similar contention and thereafter observed in para 9.12 to 9.16 as under:

"9.12 Against such investigation process, the petitioner has taken out present petition under Section 482 of the Code and prayed that

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the investigation process may be stopped and it may be quashed. In support of the said request, the aforesaid contention is raised.

9.13 The position/preposition (raised in light of the provision under Section 25 of the Indian Evidence Act) that a statement by a co­ accused is not admissible in evidence and therefore cannot be relied on, cannot be construed to mean that such statement cannot be even 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. Such a statement can be treated as a clue or piece of information (and not 'evidence') for initiating and conducting investigation/inquiry so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide reason for continuing inquiry/investigation for 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 that, therefore, it would not be proper and just to terminate, i.e. to direct the investigation officer to close the investigation.

9.14 Moreover, in present case, on one hand certain incidents are said to have occurred after the alleged meeting with the accused No.1 e.g. a gunshot was fired at a person whose appearance resembled the person who was the target of the alleged contract to kill and was mistaken as the target (but the shot missed the person) and then it was not noticed that shot was fired at wrong person. The attempt was allegedly repeated but due to failure of weapon and problem with bicycle shot could not be fired, which, prima facie, suggest that the said attempts were pursuant to the alleged meeting and the name of petitioner has emerged in connection with the said offence and its conspiracy and on the other hand the petitioner, according to the investigation officer is not co­operating in inquiry/investigation and is absconding, it

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would not be proper and/or just to stop, terminate and quash the investigation.

9.15 Furthermore, from the submissions by learned counsel for the petitioner and learned APP and from the material on record, it emerges that at this stage, the statements by the co­accused are, and have been treated and considered merely as a lead or clue or information in light of which investigation officer is conducting/directing the process of investigation and at this stage when investigation is in progress the court would not be justified in passing any order which may obstruct or interfere with the process of investigation, muchless an order which may prematurely terminate the investigation.

9.16 At this stage and in present proceedings under Section 482 of the Code, this Court cannot examine and decide as to whether the allegation can be proved in light of available evidence and/or the Court is not supposed to embark upon the inquiry whether the allegations in the FIR and the charge­sheet are reliable or not and thereupon the Court is also not supposed to render definite finding about the truthfulness or veracity of allegations. While considering the petition under Section 482, consideration has to be limited to examine whether allegations made in the FIR and the charge­sheet taken on their face value and accepted in their entirety make out ingredients of alleged offence or not."

8. Further, in the case of Kailash Govindram Rathi and Ors. vs. The State of Gujarat and Ors., reported in (2008) 1GLR 750, this Court has observed in paragraphs 6 and 9 as under:

"6. At the outset it is required to be noted that against all the respective applicants, the complainants are filed before the different Police Stations for the offences punishable under Sections 66(B), 65(a)(e), 81, 43 read with Section 116(2) of the Bombay Prohibition Act, 1949.

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It is also required to be noted that in almost all the cases the accused who were caught are Drivers, Cleaners etc., transporting English liquor from the places out of Gujarat to the State of Gujarat. It is also required to be noted that there is prohibition in the State of Gujarat. It is also required to be noted that in almost all the cases allegations against the respective applicants on the basis of the statements of the persons who are arrested are that the applicants are either suppliers of the liquor and/or liquor was to be supplied to them for the purpose of sell within the State of Gujarat. In almost all the cases the allegations is that the applicants are absconding and most of them are from out of the State of Gujarat. Now on the basis of the allegations and averments in the complaints, and on the basis of the statements of the co­accused who are arrested, the Investigating Officer started to initiate investigation against the applicants, at that initial stage all the applicants have approached this Court by way of present application for quashing and setting aside the respective complainants against them solely on the ground that except the statements of the co­accused there is no material and/or evidence against them. This Court granted stay of further investigation in almost all the cases. Now the question which is required to be considered at this stage is whether the investigation is to be commenced and/or proceeded on the basis of the statements of the co­accused and whether the Investigating Officer should be permitted to further investigate the case and/or whether at this stage even before the investigation is concluded respective complainants are required to be quashed.

9. It is required to be noted that investigation was at the initial stage and the investigation was to be initiated / proceeded further on the basis of the statements of the co­accused and the allegations and averments in the complainants. Before even the investigation

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is carried out, the applicants have approached this Court and the Police Officers are restrained from further investigation. It is also required to be noted that in almost all the cases, the applicants are absconding and/or residing outside State of Gujarat. Unless and until the investigation is proceeded further; the respective applicants are interrogated and till the investigation is completed, it cannot be said that there is no material and/or evidence against the applicants. All these things are required to be considered after the investigation is completed and appropriate report and/or charge­sheet is submitted against the applicants and thereafter, the question is required to be considered whether the applicants are to be prosecuted or not. At the initial stage of investigation the respective complaints cannot be quashed and set aside solely on the ground that at this stage there are only statements of the coaccused which is inadmissible in evidence. Corroborative nature of evidence during the course of investigation and statements of co­accused can be considered at an appropriate stage. Under the circumstances, at the initial stage complainants cannot be quashed. It cannot be disputed that it is statutory right of the Investigating Officer to investigate the complainants and the offences and the Investigating Officer cannot be restrained from further investigation solely on the ground that at this stage only statements of the co­ accused is available. In fact as per this Court statements of the co­accused, allegations and the averments in the complainants to that effect can be the basis for initiation of further investigation."

9. From the aforesaid decisions, in view of this Court, 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

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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 reason for continuing inquiry/investigation for 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. Thus, Section 25 of the Evidence Act would come into play not at the stage of inquiry/investigation but at the stage of trial. Section 25 and Section 26 of the Evidence Act read as follows:

"25.Confession to police officer not to be proved: No confession made to a police officer, shall be proved as against a person accused of any offence;

26. Confession by accused while in custody of police not to be proved against him: No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."

10. In the present case, the case is yet to reach the precincts of a Court and it is pending investigation with the police after registration of the crime. During investigation, the Police Officer

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simply collects pieces of evidence for placing the same before the Court during trial. It is only during trial, the Court where the trial goes on decides whether a particular piece of evidence is admission or relevant or capable of being proved. Until the case reaches the stage of trial in a criminal Court, applicability of Sections 25 and 26 of the Evidence Act may not arise. It is no doubt true, trial includes the stage of framing of charges against the accused or discharging an accused who is charge sheeted.

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 co­accused 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 co­accused. 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 applicant is misconceived.

12. Learned advocate Mr. Raiyani 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. If the said order is carefully examined, it is clear that this Court has quashed the

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FIR against the concerned applicant - accused as there was no material in the papers of the charge­ sheet against the concerned 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 charge­sheet and therefore the said order would also not be helpful to the applicant in the facts of the present case.

13. In view of the aforesaid facts and circumstances of 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.

14. However, liberty is reserved to the applicant to file fresh application if the charge­sheet is filed against him and if there is no material in the papers of the charge­sheet against him.

(VAIBHAVI D. NANAVATI,J)

NEHA