Gujarat High Court
Munna Ibrahim Mir vs State Of Gujarat on 7 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8042 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
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 ?
==========================================================
MUNNA IBRAHIM MIR
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR RC KAKKAD(389) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
MS ASMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/08/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. RC Kakkad for the petitioner,
learned advocate Mr. PP Majmudar for the respondent No.2 and
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
learned APP Ms. Asmita Patel for the respondent State.
2. By way of this petition u/s 482 of the Code of Criminal
Procedure, 1973 (in short "the Code"), the petitioner prayed to
quash and set aside FIR being I - C.R. No.29 of 2015 registered
with Bhanvad Police Station u/s 379 of the IPC.
3. The brief facts of the case are that the impugned FIR is
lodged against the petitioner herein, inter alia on the ground that
the complainant has kept his black coloured Scorpio car bearing
registration No.GJ 24 A 3890 outside his residence. The glass of
the front side window was not properly working and therefore,
was slightly open. The complainant slept at 10:30 in the night.
On the next day, when the complainant wake up, he found that
his Scorpio car was not stationary outside his residence and
therefore, he checked here and there, but since said Scorpio car
was not found in the house of the complainant, he lodged
impugned FIR alleging theft of Scorpio car against unidentified
person u/s 379 of the IPC. During investigation, opresent
petitioner is arraigned as accused in the offence.
4, In background of the above facts, learned advocate Mr. RC
Kakkad for the petitioner would submit that the first informant
is not the owner of the Scorpio car. The name of the petitioner is
not stated in the FIR. By relying upon Annexure C i.e.
agreement to sell, learned advocate Mr. Kakkad would submit
that the petitioner is engaged in selling and purchasing the
vehicle at Juangadh. The petitioner has purchased this Scorpio
car, which is subject matter of the petition, from its erstwhile
owner and then subsequently, sold to the first informant for a
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
sale consideration of Rs.6,60,000/- and out of which, the first
informant had paid Rs.50,000/- and given cheques of different
denomination towards the sale consideration. He would further
submit that agreement was also executed qua such selling under
the Sales of Goods Act. He would point out that Annexure C,
which is agreement indicating towards sale between the first
informant and the petitioner, also permits the petitioner to take
possession of the vehicle i.e. Scorpio car in case, if the first
informant defaulted in deposit the amount of the sale
consideration of the Scorpio car.
5. Learned advocate Mr. Kakkad would submit that in these
circumstances, when the first informant failed to pay the sale
consideration of the Scorpio car, the petitioner, who has
purchased Scorpio car from its erstwhile owner, was legally in
position to take possession of the Scorpio car and he has taken
the possession of the Scorpio car, as the first informant
defaulted in paying the amount. He would further submit that
in such circumstances and more particularly, pursuant to the
terms and conditions of the agreement deed at Annexure C,
taking of possession of Scorpio car at the instance of the
petitioner would, by no stretch of imagination, be considered as
theft, as alleged in section 379 of the IPC.
6. What is submitted by learned advocate Mr. Kakkad is that
the FIR is nothing, but mala fide and if it is allowed to roll into
the criminal case, it would be jeopardized the rights of the
petitioner and thus, he would submit to allow this petition.
7. Per contra, learned advocate Mr. PP Majmudar, relying
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
upon the judgment of the Hon'ble Apex Court in case of
Ghanshyam Sharma Vs. Surendra Kumar Sharma and others
reported in (2014) 13 SCC 401, would submit that defence of the
accuserd cannot be addressed and analyzed at the time of
quashing of the FIR. It can be allowed to be tested during trial.
He would further submit that in the present case, the first
informant was in legal possession of the Scorpio car and taking
away of the possession of such car at the hands of the petitioner
is prima facie attracting the offence punishable u/s 379 of the
IPC, which is theft. He would further submit that it is the
investigating officer, who found the name of the petitioner and
arraigned him as an accused, who has committed the offence u/
s 379 of the IPC. In these circumstances, the Court is required
to decide the allegation in a trial, which allowed to lead the
evidence. He would therefore, submit not to non-suit the
complainant at this juncture. Upon this submission, he submits
to dismiss the petition.
8. Joining the submission of learned advocate Mr. Majmudar,
learned APP Ms. Asmita Patel would submit that after the
investigation, the investigating officer found that the present
petitioner has taken away the possession of the Scorpio car,
which is owned by the first informant and such act is falling
under the offence punishable u/s 379 of the IPC. Thus, the FIR
should not be allowed to scuttle at this juncture, but trial should
be allowed to go on. The submission is canvassed to dismiss
this petition.
9. Having heard learned advocates for both the sides, at the
outset, what emerges from the record is that the first informant
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
claims that he is the owner of the Scorpio car. However, he has
not pointed out that how he became the owner of the Scorpio
car. As per the agreement to sell executed between the
petitioner and the first informant dated 23.1.2013, whereupon,
the petitioner has sold his Scorpio car to the first informant at a
sale consideration of Rs.6,60,000/-, the advanced payment of
Rs.50,000/- was received by the petitioner along with cheques of
different denomination. The cheques were not realized and
converted into cash.
10. It is trite to note that the RTO record indicates the name of
some third party as owner of the Scorpio car. Learned advocate
Mr. PP Majmudar referring to Annexure I would submit that
screen report indicates the name of the first informant as owner.
The screen report cannot be considered as a title of the vehicle
sold. RC book of the Scorpio car shows name of erstwhile owner
and not the name of the first informant. Record at Annexure C
indicates that the petitioner was given the power to repossess
the vehicle in case the first informant defaulted in paying the
sale consideration. Learned advocate Mr. PP Majmudar is not in
a position to show to this Court that the first informant has paid
the entire sale consideration, as agreed in agreement to sell at
Annexure C. Since the petitioner, who has sold Scorpio car to
the first informant, had not been paid the entire sale
consideration as per Annexure C, was holing the rights to
repossess the vehicle, which he has exercised, this cannot be
considered as theft within section 379 of the IPC.
11. In case of State of Haryana Vs. Bhajanlal reported in AIR
1992 SC 604, interpreting section 482 of the Code of Criminal
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
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 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
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
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 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."
NEUTRAL CITATION
R/CR.MA/8042/2015 JUDGMENT DATED: 07/08/2023
undefined
12. Perusing the facts with the parameters stated herein above
by the Hon'ble Apex Court, this Court is of the opinion that the
FIR appears to be mala fide and absurd. The judgment, which is
relied upon by learned advocate Mr. Majmudar is on different
facts and therefore, does not render any help to him.
13. For the foregoing reasons, present petition is allowed and
impugned FIR being I - C.R. No.29 of 2015 registered with
Bhanvad Police Station and consequential proceedings arising
therefrom are hereby quashed and set aside. Rule is made
absolute. Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
