Saiyed Imtiyaz Alimiya vs State Of Gujarat
2023 Latest Caselaw 4673 Guj

     R/CR.MA/5745/2021                                    ORDER DATED: 20/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5745 of 2021

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                             SAIYED IMTIYAZ ALIMIYA
                                     Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MS AYUSHRI M THAKKAR, ADVOCATE for
NANAVATI & CO.(7105) for the Applicant No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1 - State
NONE for the Respondent(s) No. 2 - Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 20/06/2023

                                    ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicants seek

quashment of the impugned FIR being C.R.

No.11199057210061 of 2021 registered with the Rajpardi

Police Station, District : Bharuch for the offences punishable

under Sections 394, 323, 143, 147, 148, 149, 120B, 504,

506(2), 395 and 397 of the Indian Penal Code and Section

135 of the Gujarat Police Act.

2. The short facts of the prosecution case are that on

21.01.2021, at about 8:00 pm, the applicant had held meeting

of B.T.P. in the verandah of residence of one Natubhai

Vasava, who is a member of the Gram Panchayat and also a

R/CR.MA/5745/2021 ORDER DATED: 20/06/2023

resident of Avidha. The complainant found out that the

meeting held was unlawful, therefore, he informed the

Collector Office. Thereafter, on 22.01.2021, at around 6:30/7:00

p.m., the complainant, along with three other persons, was

present at his BJP office situated near Rajpardi Cross Roads,

at that time, one Ajaybhai Somabhai Vasava came to the

said BJP office and informed the complainant to come out of

the office. Therefore, the complainant went to meet this

Ajaybhai, who informed him that the present applicant has

asked this Ajaybhai to beat him up, thereafter, he slapped

the complainant thrice and started hurling abuses at him

and also threatened him for his life. The complainant further

states that the person accompanying himi intervened but

other persons accompanying this Ajaybhai who were armed

with iron rods and bats entered the office unlawfully, started

hurling abuses and also began to beat the complainant and

injured him. Thereafter, one person viz., Mukeshbhai, who

was accompanying the complainant along with his other

persons arrived at in the room where the complainant was

being beaten up. Upon their arrival, the accused persons fled

the place and upon fleeing the accused persons, robbed the

complainant by snatching away his two gold rings and also

the gold chain that he was wearing. Therefore, the impugned

complaint.

R/CR.MA/5745/2021 ORDER DATED: 20/06/2023

3. Heard learned advocates.

4. Rule. Learned APP waives service of notice of rule

on behalf of the State. Though served, learned advocate for

the complainant is not present. The complainant has not filed

any reply / affidavit contesting this application. Looking to

the pendency, this Court has no option but to proceed with

the matter in absence of the complainant.

5.1 Learned advocate Ms.Ayushri Thakkar for Nanavati

& Company for the applicant has submitted that the

applicant has been falsely implicated in the offence as

alleged. She has submitted that the complaint is completely

baseless and the events narrated by the complainant have

been concocted and are false. She has submitted that, looking

to the FIR as it is, the story narrated by the complainant is

not believable. She has submitted that no offence is made

out against the applicant as alleged.

5.2 She has drawn the attention of this Court towards

the last paragraph of the impugned complaint where reasons

for the incident are stated, which itself shows that there is

some political rivalry between the applicant and the

complainant and therefore, the complainant has lodged such

concocted complaint. She has submitted that looking to the

R/CR.MA/5745/2021 ORDER DATED: 20/06/2023

entire complaint, there is no specific role attributed to the

applicant. She has submitted that except calling the meeting

at his premises, there is no role attributed to the applicant.

5.3 She has submitted that it is a sheer abuse of

process of law by the complainant. She has submitted that

the Hon'ble Apex Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 has observed that in the case of abuse of process of low, the Court should

exercise the powers under Section 482 of the Code of

Criminal Procedure, 1973. She has submitted that this is a

fit case to exercise such powers as the complainant has

falsely implicated the applicant in the commission of offence

in question by keeping grudge against the applicant and to

settle the political score. She has submitted that this

application may be allowed by quashing the impugned

complaint as well as the proceedings arising out of the

impugned complaint, if any.

6. Per contra, learned APP for the State has

vehemently opposed this application. He has submitted that

prima facie, there is a role of the applicant in the

commission of offence, as meeting is held by the present

applicant at his premises and therefore, such incident has

occurred and therefore, prima facie case is made out against

R/CR.MA/5745/2021 ORDER DATED: 20/06/2023

the applicant. He has submitted that the applicant has

committed an offence as alleged in the complaint and

therefore, let the trial may be faced by him. He has

submitted that this Court may not exercise the powers in

favour of the applicant. He has submitted that in several

decisions of the Hon'ble Apex Court as well as considering

the gravity of the offence, this Court should not exercise the

powers in favour of the applicant. He has submitted that this

application may be dismissed.

7. I have considered the rival submissions made by

the learned advocates for the respective parties. I have gone

through the entire record available with this Court.

Considering the entire facts and circumstances of the case,

the following factors are weighed with this Court :

➢       This is a case of false implication.

➢       The      story      narrated           by     the     complainant             cannot        be

believable.

➢       The impugned complaint is to settle the political score.

➢       There is no specific role attributed to the applicant.

➢       Except arranging the meeting at his house, there is no

enmity between the complainant and the applicant.

➢ The incident is different and the allegations are

different.

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➢ There is some ulterior motive of the complainant.

➢ The complainant has tried to give criminal colour to the

political grudge.

➢      The investigation also smacks a lot.

➢      The State machinery did play independent role.

8. At this stage, it would be fruitful to refer to the

judgment of Hon'ble Supreme Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"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 Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 formulae 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

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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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 sec.156(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

R/CR.MA/5745/2021 ORDER DATED: 20/06/2023

of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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."

9. In view of above and under the circumstances,

having regard to the role attributed to the applicant in the

offence in question, no offence can be said to be constituted.

Therefore, arraigning the applicant for the offence in question

amounts to abuse of the process of law. This is, therefore, a

fit case for exercise of inherent powers under Section 482 of

the Code to prevent the abuse of the process of law. This

application therefore needs to be allowed and the proceedings

arising out of the said offence, if any, are required to be

quashed and set aside.

10. For the reasons recorded above, the following order

is passed.

      R/CR.MA/5745/2021                          ORDER DATED: 20/06/2023




10.1            This application is allowed.



10.2            The impugned FIR being C.R. No.11199057210061

of 2021 registered with the Rajpardi Police Station, District :

Bharuch is hereby quashed and set aside, qua the applicant

only.

10.3 Consequently, the proceedings, if any, arising out

of the impugned FIR, are also hereby quashed and set aside,

qua the applicant only.

10.4            Rule is made absolute accordingly.



                Direct service is permitted.


                                               (SANDEEP N. BHATT,J)
M.H. DAVE