Gujarat High Court

Pavansingh S/O Bhakharsingh ... vs State Of Gujarat on 13 September, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/5265/2020                                     ORDER DATED: 13/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 5265 of 2020

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            PAVANSINGH S/O BHAKHARSINGH RATHOD (RAJPUT)
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR PAWAN A BAROT(6455) 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 : 13/09/2023

                                    ORAL ORDER

1. Heard learned advocate Mr.Pawan Barot 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-

263 of 2018 registered with Chhapi Police Station,

Banaskantha, for the offence under sections 65(a)(e), 116-B,

81, 98 (2) and 99 of the Gujarat Prohibition Act.

3. The facts giving rise to the filing of the present

Application are that on 2.8.2018, a secret information was

received by the Police Authorities to the effect that one truck

(trailer) bearing Registration No. RJ 07 GB 0775 is lying at

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Hotel Apollo, Chhapi Police Area on Palanpur Mehsana

highway and upon search it was found that total 10,800

bottles amounting to Rs.43,20,000/- are being transported and

one person is found from the place of incident. It is stated

that arrested person revealed the name of present accused,

who has instructed/ loaded the truck from Ambala-Hariyana,

and does not know the person to whom the consignment is

to be delivered. With these facts, the FIR being C.R.No.III-

263 of 2018 came to be registered with Chhapi Police

Station, Banaskantha.

4. Learned advocate Mr.Barot for the petitioner would

submit that the petitioner has not played any role in

commission of offence. He would submit that on bare reading

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

main accused-Hariram Sattaram Dolaram Jaat (Chaudhary)

is acquitted by the concerned trial Court in Criminal Case

No.710 of 2018. 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 present accused is different. The

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petitioner has facilitated other co-accused in transporting

Indian made foreign liquor by providing car 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 is

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. It appears that present petitioner is not

arrested from the place of incident nor he is found in

conscious possession of muddamal and even the alleged

vehicle is not belonging to the petitioner. 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 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

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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 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 institution 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

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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 FIR being C.R.No.III-263 of 2018 registered with

Chhapi Police Station, Banaskantha, and all consequential

proceedings arising therefrom are hereby quashed and set

aside qua present petitioner.

(SANDEEP N. BHATT,J) R.S. MALEK