Jitesh @ Jitu Naranbhai Parmar ... vs State Of Gujarat
2023 Latest Caselaw 6234 Guj

                                                                                 NEUTRAL CITATION




     R/CR.MA/19037/2014                           JUDGMENT DATED: 25/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 19037 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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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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           JITESH @ JITU NARANBHAI PARMAR (RABARI) & 1 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1,2
MS VRUNDA SHAH APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 25/08/2023

                             ORAL JUDGMENT

1. This is an application filed under Section 482 of the Code of

Criminal Procedure, 1973 praying to quash FIR being I-

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R/CR.MA/19037/2014 JUDGMENT DATED: 25/08/2023

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C.R.No.110 of 2014 registered with Junagadh Taluka Police

Station on 16th August, 2014 for the offence punishable under

Sections 307, 323, 504, 114 of the Indian Penal Code and Section

135 of the Gujarat Police Act.

2. It is the case of the prosecution that the complainant,

namely, Ilyashbhai Babubhai Hothi, had lodged an FIR being

admitted at Junagadh Government Hospital in Trauma Ward

against 4 accused wherein the name of the present applicants

are mentioned as accused Nos.3 and accused No.4. It is averred

in the FIR that when the complainant was standing near the

Saragwada Railway Crossing along with his father on the day of

the incident at around 11.45 a.m., at that point of time, accused

No.1 and accused No.2 were passed and looked towards the

complainant and again around 2.00 to 2.30 when the

complainant was sitting near the Vadli Chowk at Saragwada

village, the accused No.3 i.e. present applicant No.2 was having

an axe. accused Nos.1 and 2 both having an iron rod and

accused No.4 i.e. present applicant No.1 started assaulting to the

complainant. The first assault was made by present applicant

No.2 with axe and thereafter, all the accused persons started

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assaulting to the complainant. The complainant had received

injury on his head and fallen down. Thereafter, all the four

accused had ran away from the place and on reaching the father,

namely, Babubhai, as well as Umarbhai, at the place of offence,

the complainant was taken to the Government Hospital,

Junagadh and he was admitted in the Trauma Ward. With the

aforesaid allegations, the impugned FIR came to be lodged,

which is subject matter of challenge before this Court.

3. Heard Mr.Hardik H. Dave, learned advocate for the

applicant Nos.1 and 2, Ms.Vrunda Shah, learned APP for the State

and though 'Rule' was served, respondent No.2 - original

complainant though chosen not to appear before this Court.

4. Mr.Hardik Dave, learned advocate for the applicant submits

that the aforesaid FIR was lodged with mala-fide intention to get

the bail cancelled, which was granted by this Court for the

offence punishable under Sections 143, 147, 148, 149, 302, 307,

322, 323, 337 of the Indian Penal Code and Section 25(1)BA of

the Arms Act and Section 135 of the Gujarat Police Act, which

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was registered with Junagadh Taluka Police Station vide C.R.No.I-

140 of 2013 wherein, this Hon'ble Court released the applicants

on regular bail with a condition that not to enter in the Junagadh

District except attending the trial for the period of 3 months and

6 months respectively by an order dated 11.4.2014 and

9.7.2014.

5. Mr.Dave, learned advocate further submits that time of

offence, which is mentioned in the impugned FIR is around 2.30,

however, the applicants were, at that point of time at Amreli Sub

Jail, visiting his elder brother for which the certificate in that

regard was produced as a part of record which suggests that

though applicants were not present at the relevant point of time,

they were falsely implicated in the FIR due to the previous

animosity.

6. Mr.Dave, learned advocate further submits that applicants

have also filed representation before the Higher Official on 23 rd

August, 2014, however, the Authority had not taken into

consideration nor the investigated on the line of defence of alibi

of the present applicants.

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7. Mr.Dave, learned advocate submits that as the FIR filed

with the oblique motive, the same is required to be quashed by

exercising inherent power under Article 482 of the Code of

Criminal Procedure.

8. Mr.Dave, learned advocate further submits that so far as

trial with regard to other accused is concerned, the same was

concluded and judgment and order of the acquittal which was

passed on 8th November, 2017 and on that ground also, Mr.Dave,

learned advocate submits that continuation of the proceedings

against the present applicants would amount of abuse of process

of law and he therefore, prays to quash the impugned FIR.

9. On the other hand, learned APP, Ms.Vrunda Shah, for the

Respondent-State submits that the present applicants are the

history-shitter having 14 cases registered under different

sections of the Indian Penal Code and at present also, applicants

are in the custody for the offence punishable under Sections 307,

323, 324, 325,329,449, 506(2), 294(b) and 114 of the Indian

Penal Code under Section 135 of the Gujarat Police Act and

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Section 25(1-b)(a) of the Arms Act registered with Junagadh

Taluka Police Station on 12.3.2023. The case details are as

under:

Name : Jitubhai Rabari Sr.No. Address Details of the case Stage

1 Saragwada, I/0140/2013,4-25(1)(b), 4-29, 43- FIR Junagadh 143,43-147,43-149,43-302,43-

307,43-323,43-324,43-326,43-

337,503-135

Dt.02/11/2013

Junagadh Taluka Police Station, Junagadh 2 Joshipara, PRO93/0013/2015,510-93 PA Junagadh stage DT.15/06/2015

Patanwav Police Station, Rajkot (Rural) 3 Saragwada, I/0017/2015,43-114,43-419 FIR Junagadh DT: 20/08/2015

Patanwav Police Station, Rajkot (Rural) 4 Saragwada, Cr.P.C.110/0422/2015, 10-110 PA Junagadh stage DT. 16/11/2015

Junagadh Taluka Police Station Junagadh 5 Saragwada, I/ 0017/2015,43-114,43-419 Investigation Junagadh Stage DT-20/08/2015

Patanwav Police Station Rajkot (Rural)

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6 Khalilpur II/0018/2016,43-114,43-323,43- FIR Junagadh 447,43-504, 43-506(2), 503-

135(1)

DT. 19/03/2016

Junagadh Taluka Police Station Junagadh 7 Joshipura II/0018/2016,43-114,43-323,43- Investigation Junagadh 447,43-504,43-506(2),503-135(1) Stage

DT19/03/2016

Junagadh Taluka Police Station Junagadh 8 Khalilpur Cr.p.c.110/0079/2016, 10-110 PA Stage Junagadh DT 11/05/2016

Junagadh Taluka Police Station Junagadh 9 Saragwada BPA 56/0010/2016, 503-56 PA stage Junagadh DT 18/06/2016

Junagadh Taluka Police Station Junagadh 10 Saragwada 11/0043/2018, 43-114,43-504, Junagadh 43-506(2) Investigation Stage DT 11/04/2018

Junagadh Taluka Police Station Junagadh 11 Saragwada I/0097/2019, 43-387, 43-447, 43- Investigation Junagadh 506(2). Stage

DT. 16/06/2019

Junagadh Taluka Police Station Junagadh 12 Saragwada Cr.P.C. 107/0179/2019, 10-107 PA Stage Junagadh

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13 I-36/23IPC 386, 506(2), Money Laundering Act. Etc.

Dt. 19/01/2023 14 I-152/23/IPC 307, 323, 324, 325, Arms Act - 25 (1-B).

DT. 12/03/2023

10. Ms.Shah, learned APP further submits that though there

was an order of this Court while enlarging on the bail to the

accused persons not to enter into Junagadh district, by flouting

orders, they had committed an offence and assaulted to the

complainant with deadly weapon for which the complainant had

received serious injury.

11. Ms.Shah, learned APP further submits that plea of alibi

which was taken by the present applicants and the certificate

which was produced, showing that at the relevant point of time,

they were with Amreli Sub Jail is also not correct as in the

Certificate time is mentioned is around 6.30 in the evening,

however, the offence was committed at around 2.00 to 2.30 at

noon. Therefore, the certificate itself suggests that at the

relevant point of time, they were not in the Amreli Sub Jail to

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meet his brother. On that ground also, learned APP requested

not to interfere in the said order and prays to dismiss the

application.

12. Considering the submissions made by respective parties, it

transpires that present petition is filed only on the ground of plea

of alibi submitting that at the relevant point of time, they were

present with Amreli Sub Jail. On examining the Certificate, which

is the part of the record suggests that time which is mentioned in

the certificate is 16th August, 2014 at around 6.30 p.m.. However,

incident which was occurred on 16 th August, 2014 which is

around 2 to 2.30 at noon. it is settled principle of law that High

Court while exercising its jurisdiction under Section 482 of the

Cr.P.C. would not embargo upon inquiry as to whether evidence

in question is reliable and sufficient or not. This function is clearly

within the domain of the trial magistrate. It is not open to invoke

the inherent jurisdiction of the High Court by contending that

only reasonable appreciation of the evidence, the accusation

made against the applicant would not be sustained. Again High

Court would not usurp function of the trial magistrate and it

would be for him to depose of the case according to law in the

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light of evidence. Such intervention or interference in the power

of the trial magistrate is uncalled for, neither it is the function of

the High Court while exercising the its inherent jurisdiction to

appraise the evidence nor inquire as to whether it is reliable or

not. High Court while exercising jurisdiction under Section 482 of

the Cr.P.C. to quash the proceedings would not appreciate the

evidence in inasmuch it is the function of the trial Court and

therefore, no finding of plea of alibi can be given in a petition

under Section 482 of the Cr.P.C.

13. Another contention of the applicants with regard to the

conclusion of the trial for the co-accused is concerned, on

examining the judgment and order of the acquittal, it transpires

that during the trial neither Investigating Officer, nor PSO was

examined, nor the learned Judge has considered with regard to

the offence of the Medical Officer though he was examined. The

learned judge while acquitting the co-accused had only

considered that no any assault which caused to the injury of the

complainant was made by the accused who were tried. That this

Court is of the opinion that full flagged trial is required to be

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held qua the applicant and therefore, at this stage, this quashing

petition is required to be dismissed.

14. Hence, it is dismissed. Rule discharged. Interim relief, if

any, stands vacated.

(M. K. THAKKER,J) ASHISH M. GADHIYA