Gujarat High Court
Abhesinh Kasnabhai Parmar vs State Of Gujarat on 6 June, 2023
Bench: Samir J. Dave
R/SCR.A/6076/2023 ORDER DATED: 06/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6076 of 2023
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ABHESINH KASNABHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR A A ZABUAWALA(6823) for the Applicant(s) No. 1
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/06/2023
ORAL ORDER
1. Rule. Learned APP waives service of notice of
rule for and on behalf of respondent - State.
2. The petitioner has filed this petition to
invoke inherent jurisdiction vested under Articles
226 and 227 of the Constitution of India and read
with Section 482 of the Code of Criminal Procedure
to release the muddamal vehicle i.e. Force Cruzer
Car bearing RTO Registration No.GJ-20-J-2473 in
connection with the FIR being CR.No.1182100210294
registered with Dahod Rural Police Station,
District- Dahod for the offence punishable under
Sections 379 of the the Indian Penal Code.
3. Heard learned advocates for the parties.
4. Learned advocate for the petitioner has
R/SCR.A/6076/2023 ORDER DATED: 06/06/2023
submitted that applicant had preferred application
for release the muddamal before the learned
Judicial Magistrate First Class, Dahod , which was
allowed by the learned JMFC Court, Dahod vide order
dated 08.06.2021 while imposing certain conditions
to release the muddamal. Since, the final report in
Form of 'A' summary was filed by the Investigating
Officer, the petitioner preferred an application
for deletion of condition no.3 imposed by an order
dated 08.06.2021 passed in Criminal Misc.
Application No.58 of 2022, which was rejected by
order dated 14.02.2023 by the learned Sessions
Court. It was accordingly urged that this Court may
direct release of the muddamal vehicle in exercise
of the extraordinary jurisdiction under Article 226
of the Constitution of India on suitable terms and
conditions.
5. It is also contended that as per various
judgments of this Court and Hon'ble Apex Court in
case of Sundarbhai Ambalal Desai vs. State of
Gujarat reported in AIR 2003 SC 638 and in case of
Smt. Basava Kom Dyaman Gauda Patil Vs. State of
Mysore reported in (1977) 4 SCC 358, wherein the
captioned mudamal has been released.
6. Per contra, learned APP has heavily opposed
and placed reliance upon the judgment dated
R/SCR.A/6076/2023 ORDER DATED: 06/06/2023
18.12.2017 passed by Co-ordinate Bench of this
Court in case of Jhala Ghanshyamsingh Mobatsingh
vs. State of Gujarat in Special Criminal
Application No. 9745 of 2017. Learned APP further
contended that the order passed by the learned
trial Court is just and proper.
7. Having heard the arguments advanced by both
the sides, while determining the other issues
raised by the learned APP with reference to
judgments of this Court and judgment dated
18.12.2017 in case of Jhala Ghanshyamsingh
Mobatsingh vs. State of Gujarat and other
provisions of the said Act and referring to that
and the issues to be determined in future in
appropriate proceedings being contentious issue,
this Court is not inclined to enter into that arena
in the present matter and instead exercised powers
vested under Articles 226 and 227 of the
Constitution of India.
8. This Court has also assistance of judgments
and orders passed by the Co-ordinate Bench of this
Court, which are as under:
(a) In case of Vipul Roshan Kumar Shah vs. State of Gujarat
order dated 15.06.2020 passed in Special Criminal Application
No. 6957 of 2019.
(b) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat
order dated 10.06.2020 passed in Special Criminal Application
R/SCR.A/6076/2023 ORDER DATED: 06/06/2023
No. 8601 of 2019.
(c) In case of Mahesh Mansukhbhai Dholaria vs. State of Gujarat
order dated 19.08.2019 passed in Special Criminal Application
No. 7806 of 2019.
(d) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of Gujarat
order dated 10.08.2018 passed in Special Criminal Application
No. 6039 of 2018.
(e) In case of Dilipbhai Ramanbhai Chaudhari (Legal Heirs of
Late Ramanbhai Chaudhari) vs. State of Gujarat order dated
14.08.2020 passed in Special Criminal Application No. 3387 of
2020.
(f) In case of Smitaben Kalpeshbhai Chaudhary vs. State of
Gujarat order dated 20.07.2020 passed in Special Criminal
Application No. 2851 of 2020.
(g) In case of Jignasha Kalpeshbhai Prajapati thro POA
Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order
dated20.07.2020 passed in Special Criminal Application No. 2896
of 2020.
(h) In case of Devabhai Ranchhodbhai Ahir vs. State of Gujarat
order dated 20.07.2020 passed in Special Criminal Application
No. 2853 of 2020.
(i) In case of Vipul Roshan Kumar Shah vs. State of Gujarat
order dated 15.06.2020 passed in Special Criminal Application
No. 6957 of 2019.
(j) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order
dated 22.07.2020 passed in Special Criminal Application No.
7143 of 2019
9. This Court notices that the said muddmal
vehicle was meant for transfer and further this
offence was not as per instructions of present
petitioner to the driver, considering the decision
of Sunderbhai Ambalal Desai Vs. State of Gujarat
(Supra), wherein Hon'ble Apex Court lamented
scenario that vehicle having unattended and
becoming junk within the premises of Police
Station, further the captioned muddamal vehicle was
R/SCR.A/6076/2023 ORDER DATED: 06/06/2023
used by employee of the petitioner and petitioner
is suffering from many months, therefore, bearing
in mind all such facts and circumstances, the
petitioner has to be given back his muddamal
vehicle with few conditions.
10. Resultantly, this petition is allowed, and the
order dated 14.02.2023 passed by the learned
Sessions Court, Dahod is set aside and condition
no.3 imposed in order dated 08.06.2021 passed by
the learned Additional Judicial Magistrate First
Class, Dahod is deleted and other conditions of the
said order shall remain unaltered. The authority
concerned is directed to release the vehicle of
petitioner.
11. Before handing over the possession of the
vehicle to the petitioner, necessary photographs
shall be taken and a detailed Panchnama in that
regard, if not already drawn, shall also be drawn
for the purpose of trial. If, the I.O. finds it
necessary, Videography of the vehicle also shall be
done. Expenses towards the photographs and the
videography shall be borne by the petitioner. Rule
is made absolute. Direct Service is permitted.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
