Jaydipsinh Natubha Parmar vs State Of Gujarat
2023 Latest Caselaw 7076 Guj

                                                                                           NEUTRAL CITATION




     R/CR.MA/21743/2021                                       ORDER DATED: 26/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 21743 of 2021

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                          JAYDIPSINH NATUBHA PARMAR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3,4,5
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 26/09/2023

                                 ORAL ORDER

1. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`the Code' for short) for

the following prayers:

"14(A) Admit this Misc.Cri.Appln.;

(B) Your Lordships be pleased to allow this petition by quashing and setting aside the FIR being C.R.No.11211045210330/2021 dated 16-11-2021, with Sayla Police Station, for the offence punishable u/s 379, 186, 504, 506(2), 114 of IPC and Sec.177 & 184 of Motor Vehicles Act, and Sec.3(2)(e) of Damage to the Public Property Act and Sec.4(1), 4(1)(A), 21(1), 21(2), 21(4), 21(6) of The Mines and Minerals (Regulation and Development Act, 1957, filed

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by the respondent no.2;

(C) Pending admission and final disposal of this petition, Your Lordships be pleased to stay the further proceeding of FIR being C.R.No.11211045210330/2021 dated 16-11-2021, with Sayla Police Station, for the offence punishable u/s 379, 186, 504, 506(2), 114 of IPC and Sec.177 & 184 of Motor Vehicles Act, and Sec.3(2)(e) of Damage to the Public Property Act and Sec.4(1), 4(1)(A), 21(1), 21(2), 21(4), 21(6) of The Mines and Minerals (Regulation and Development Act, 1957;

(D) xxxxx"

2. Heard learned advocate Mr.Dagli for the petitioner

and learned APP Mr.Dave for respondent no.1-state.

3. Learned APP Mr.Dave has tendered a copy of the

report along with the copy of the chargesheet. Learned

advocate Mr. Dagli has tendered draft amendment along with

the copy of the chargesheet. Draft amendment is allowed. To

be carried out forthwith.

4. The amended prayers are as under:

"14(B) YOUR LORDSHIPS be pleased to allow this petition

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by quashing and setting aside the FIR being 11211045210330 of 2021 registered with Sayla Police Station, SURENDRANAGAR and also this Honourable Court may be pleased to quash and set aside the charge sheet as well as sessions case being Sessions Case No.07 of 2023 pending before the district and sessions court, Surendranagar and also Hon.Court may be pleased to quashed and set aside further proceedings arising out of the said FIR and charge sheet qua the present petitioners in the interest of justice.

(C) Pending admission hearing and final disposal of this petition, Your Lordships be pleased to stay the further proceeding of FIR being 11211045210330 of 2021 registered with Sayla Police Station, SURENDRANAGAR and also this Honourable Court may be pleased to grant stay the sessions case being Sessions Case no.07 of 2023 pending before the district and sessions court, Surendranagar in the interest of justice."

5. Heard learned advocates for the parties.

5.1 Learned advocate Mr.Dagli submitted that prima

facie, the complaint is based on the aspect that at the time

when the vehicle is intercepted, there were no royalty passes

available with the persons who were occupying the vehicle in

question. On bare reading of the complaint, the ingredients

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of the complaint are not satisfied because he was already

having royalty passes with him. He has drawn my attention

towards the royalty passes issued by the state government

and further submitted that therefore entire complaint is filed

with some malafide intention and ulterior motive and no

offences under Sections 177 and 184 of the MV Act can be

made. He has further submitted that as far as the offence

under Mines and Minerals Act is concerned, separate

mechanism is provided to file complaint at the instance of

the authorized officer of the Central Government and the

complaint is defined under Section 2(d) of the Code which

cannot be termed as FIR and therefore he has submitted

that prima facie the FIR which is filed against the present

accused persons is not maintainable, more particularly,

pursuant to the Sections 379, 186, 504, 506(2) and 114 of

IPC and Section 3(2)(e) of Damage to the Public Property

Act. He has further submitted that there is bar of Section

195 of the Code as far as the offence under Section 186 of

the IPC is concerned and therefore also, the proceedings are

not permitted to be proceeded further pursuant to the

impugned FIR. He, therefore, prays to quash the complaint in

question by relying on the judgment of State of Haryana V/s

Bhajanlal & Ors. Reported in AIR 1992 SC 604 and other judgments on the aspect of exercising the powers under

Section 482 of the Code.

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6. Per contra, learned APP Mr.Dave has opposed the prayer made by the learned advocate Mr.Dagli and drawn my

attention that the said royalty passes were issued after the

vehicle is intercepted and it cannot be said that at the time

of interception, the royalty passes were with the accused

persons. He has submitted that otherwise also, now the

chargesheet is filed and all the ingredients of the sections

are satisfied in the facts and circumstances of the present

case. He has submitted that from the panchanama and other

material available on the record, it clearly suggests the

involvement of the present accused persons in the commission

of offence and therefore the proceedings pursuant to the

complaint can be proceeded further as now the chargesheet is

filed and therefore this Court should not exercise powers

under Section 482 of the Code as prima facie case is made

out, which should be otherwise exercised very sparingly.

7. I have considered rival submissions made at the

bar and also considered the fact that the impugned FIR is

filed under the provisions of the IPC, MV Act, Damage to

Public Property Act and Mines and Minerals Act. Considering

the fact that now it is well settled that the provisions under

Section 379 of the Code and the provisions of Mines and

Minerals Act are not required to be considered

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simultaneously, more particularly, when the complaint is

required to be filed by the authorized competent officer under

the Mines and Minerals Act, the impugned FIR qua the

provisions of Mines and Minerals Act are required to be

quashed in view of the judgment in the case of Manjulaben

Ramniklal Thanki V/s State of Gujarat, reported in 2019(3) GLR 1786.

8. For the offences under the other provisions, the

chargesheet is filed after investigation. Considering the other

material like panchanama etc. available on the record, prima

facie the offences as alleged in the FIR except the provisions of Mines and Minerals Act are not required to be considered

and it is appropriate to consider all the contentions raised by

the applicant at the time of trial. I am of the opinion that

the trial is required to be proceeded further under the

provisions of all the other Acts except the offences under

Mines and Minerals Act.

9. Accordingly, the present application is partly

allowed to the extent that the offences under Sections 4(1),

4(1)(A), 21(1), 21(2), 21(4), 21(6) of the Mines and Minerals

(Regulation and Development) Act, 1957 and Sections 3 and

21 of Gujarat Mineral (Prevention of Illegal Mining,

Transportation and Storage) Rules, 2005, 2016 and 2017 in

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the impugned FIR being FIR No.11211045210330 of 2021

registered with Sayla Police Station, SURENDRANAGAR and

the subsequent proceedings pursuant to the same are quashed

and set aside qua the applicant. However, the trial shall be

proceeded further pursuant to the offences invoked in the

impugned FIR under other provisions.

(SANDEEP N. BHATT,J) SRILATHA