Chandraprakash @ Chandu ... vs State Of Gujarat
2023 Latest Caselaw 7519 Guj

                                                                                       NEUTRAL CITATION




      R/CR.MA/4420/2021                                   ORDER DATED: 11/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 4420 of 2021

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              CHANDRAPRAKASH @ CHANDU PRAHLADRAM JAT
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 11/10/2023
                                 ORAL ORDER

1. Heard learned advocate Mr. Hardik Dave for the

petitioner and learned APP Mr. Chintan Dave for the

respondent - State.

2. By way of this petition under section 482 of Cr.P.C.,

the petitioner has prayed to quash the FIR being

C.R.No.III-5231 of 2017 registered with Amrigadh Police

Station, Banaskantha along with Criminal Case No.429 of

2017 pending with Ld. JMFC Amrigadh for the offence

under sections 65(a)(3), 81, 83 & 98 of the Gujarat

Prohibition Act.

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R/CR.MA/4420/2021 ORDER DATED: 11/10/2023

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3. It is alleged that the petitioner is not owner of Truck

No.GJ-08-Y-8336. It is further alleged that accused Nos.1

& 2 were caught red handed in transporting Indian

made foreign liquor in the said Truck, who were

acquitted by the trial court. Upon such allegations, FIR

came to be registered against the petitioner only on

statement of the co-accused.

4. Learned advocate Mr. Dave for the petitioner would

submit that the petitioner has not played any role in

commission of offence. He would submit that bare face of

FIR, no offence is made out. He would further submit

that main accused i.e. accused Nos.1 & 2 are acquitted

by the concerned trial court. He would further submit that in this circumstances, if allowing petitioner to face

trial, which could roll out on completion of investigation

and filing of charge sheet against him would be futile

exercise. He therefore, submits to allow this petition.

5. Learned APP objected the arguments at his vehemence

and submits that role of 2 accused are different. The

petitioner has facilitated 2 other co-accused in

transporting Indian made foreign liquor by providing

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R/CR.MA/4420/2021 ORDER DATED: 11/10/2023

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truck knowing fully well that they are transporting

Indian made foreign liquor. In this circumstances, let

there be trial against the petitioner. He would submit

that by allowing this petition, the prosecution case

should not be shattered at threshold. This submission are

made to reject the petition.

6. Having heard learned advocates for both the sides, at

the outset it is noted that trial against the main accused

are completed. Learned JMFC has recorded clear

acquittal in favour of co-accused believing that contents

of the FIR which has culminated into charge sheet is

not correct and not proving any offence. Perusing the

FIR, it appears that against present petitioner allegation of providing truck to transport Indian made foreign

liquor is made. Looking to the role alleged to have been

played by the petitioner in connection the FIR, it is

much less than the alleged role played by other co-

accused. Since jurisdictional Court did not find substance

in the allegations made by the prosecution and acquitted

other two co-accused, allowing trial against the present

petitioner would be futile exercise.

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7. The circumstances spells that parameters stated in the

judgment in the case of State of Haryana Vs. Bhajanlal

reported in AIR 1992 SC 604, are attracted. While

interpreting section 482 of the Code of Criminal

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 156(1) of the Code except under an order of a

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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 noncognizable

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."

8. For the foregoing reasons, present petition is hereby

allowed and the impugned FIR being C.R.No.III-5231 of

2017 registered with Amrigadh Police Station,

Banaskantha along with Criminal Case No.429 of 2017

pending with Ld. JMFC Amrigadh for the offence under

sections 65(a)(3), 81, 83 & 98 of the Gujarat Prohibition

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R/CR.MA/4420/2021 ORDER DATED: 11/10/2023

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Act and all consequential proceedings arising therefrom

are hereby quashed and set aside. Rule is made

absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA