Gujarat High Court
Mansing Shankarlal (Damor) Mina vs State Of Gujarat on 15 February, 2024
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING &
SET ASIDE FIR/ORDER) NO. 13199 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13217 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13237 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13235 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13212 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13202 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13219 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
=================================================
Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
=================================================
Page 1 of 13
Downloaded on : Mon Feb 19 20:41:29 IST 2024
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
=================================================
MANSING SHANKARLAL (DAMOR) MINA
Versus
STATE OF GUJARAT
=================================================
Appearance:
KHUSHI P JADAV(7351) for the Applicant(s) No. 1
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
=================================================
CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 15/02/2024
ORAL JUDGMENT
1. In this batch petitions filed under Section 482 of the Criminal
Procedure Code, 1973 (CrPC), the petitioner sought quash of various
FIRs registered against him in various police stations for the
offences punishable under Sections 65(a)(e), 81, 83, 98(2) and
116(b) of the Prohibition Act. Since all these petitions are filed by
the same petitioner, these petitions are heard together and they are
being disposed of by this common order.
2. Heard, learned counsel for the petitioner and the learned
Additional Public Prosecutor for the respondent - State.
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
3. The petitioner is one of the accused in all the FIRs that were
registered in this batch of petitions. As per the prosecution version,
the other accused were found to be in illegal possession of various
types of liquor unauthorizedly and they have been transporting the
said liquor illegally, contrary to the provisions of the Prohibition
Act. At that time they were apprehended by the police and the
contraband was seized from their possession and they were taken
into custody and were interrogated by the police and the aforesaid
crimes were registered against them. At the time of interrogating the
said arrested accused, it is stated that they have disclosed the name
of the petitioner herein also as the person who has supplied the said
liquor to them. Therefore, on the basis of the said statement of the
co-accused, the petitioner is also shown as an accused in all the
above crimes. Taking a clue from the said statement of the co-
accused, the Investigating Officers have been investigating the said
cases regarding the complicity of the petitioner in commission of the
said offences and the role played by him the commission of the said
offences punishable under the Prohibition Act. The investigation in
the said cases is pending.
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
4. While so, the petitioner sought quash of all the said FIRs and
the criminal proceedings initiated thereon against him on the sole
ground that he was implicated as an accused in the above crimes
solely on the basis of the statement of the co-accused and the said
statement of the co-accused is not admissible in evidence and he
cannot be prosecuted for the said offences on the basis of the said
statement of the co-accused. Therefore, on the said sole ground, he
sought quash of the FIRs registered against him.
5. The learned counsel for the petitioner placed reliance on the
judgment of this Court rendered in the case of Sanjay Keshavbhai
Patel v. State of Gujarat, 2019 (0) AIJEL-HC 240931, wherein, it is
held that when there is only the statement of co-accused and except
such statement of co-accused there is no other material or evidence
available to indicate that the applicant has committed any such
offence or abetted commission of offence by the other co-accused in
any other manner, that the FIR registered against him and the
consequential criminal proceedings initiated thereon are to be
quashed and set aside.
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
6. Per contra, learned Additional Public Prosecutor for the State
vehemently contends that the statement of co-accused given during
the course of interrogation serves as a clue to the Investigating
Officer regarding complicity of the petitioner in commission of the
said offence and on the basis of the said clue that is secured during
the course of investigation that the Investigating Officer is perfectly
justified in registering the FIR against him and to investigate the
case to find out the role played by the petitioner in perpetrating the
said offence and to find out his complicity in commission of the said
offence and if ultimately the Investigating Officer could collect
evidence on the basis of the said clue got to him from the statement
of co-accused, that a Charge-sheet would be filed against him with
the said evidence and she would vehemently contend that the FIRs
cannot be quashed at this stage interdicting the investigation. She
would also contend that this is not a stage where the evidence is to
be weighed and appreciated and the investigation shall be allowed to
go on and only after the Charge-sheet is filed that it is to be
ascertained whether there is sufficient ground and material against
the petitioner to prosecute him for the said offence or not.
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
6.1 To prop up her contention, she relied on a judgment of the
Apex Court rendered in the case of Mohd. Malek Mondal v. Pranjal
Bardalai and Another, (2005) 10 SCC 608. She also placed
reliance on the judgment of this Court rendered in the case of
Firozbhai Hajibhai Sodha v. State of Gujarat, which is an
unreported judgment rendered in Criminal Misc. Application No.
5836 of 2021 and also a judgment rendered in the case of
Budhiyabhai Somabhai Khalasi v. State of Gujarat, 2012 SCC
OnLine Guj 1300.
7. The facts of the case are absolutely not in controversy. The
other accused against whom the aforesaid FIRs were registered, as
per the prosecution story, they are found to be in illegal possession
of various types of liquor and have been illegally transporting the
same. They were apprehended by the police and the contraband was
seized from their possession. When they were interrogated after
taking them into custody, during the course of investigation, they
revealed that the petitioner herein had supplied the said various types
of liquor to them. As noticed supra, it is on the basis of the said
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
statement of the co-accused, the petitioner is now shown as one of
the accused in the above FIRs.
7.1 Now, the crucial question that arises for consideration is
whether the petitioner is entitled for quash of the FIR registered
against him on the sole ground that he was shown as accused in all
the above crimes only on the basis of the statement given by the co-
accused or not. According to the petitioner, the said statement of co-
accused is inadmissible in evidence and he cannot be shown as
accused on the basis of the said statement of the co-accused.
7.2 This Court has taken divergent views on the said proposition
of law. In some cases, this Court has taken a view that registering
FIR against a person solely on the basis of the statement of the co-
accused is not permissible and that, the said FIR and the criminal
proceedings initiated thereon are liable to be quashed. The other
Coordinate Benches have taken a view that the statement of co-
accused serves as a clue to the Investigating Officer regarding the
role played by the said person in commission of the said offence and
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
when the case is at the investigation stage, that the FIR and the
criminal proceedings initiated against him cannot be quashed and
held that, ultimately it is for the Investigating Officer either to file
the charge-sheet against him after collecting valid evidence in proof
of his complicity in commission of the said crime or drop the
proceedings if no other evidence is available in proof of his
complicity in the commission of the said crime.
7.3 However, though there are divergent views expressed by this
Court, as discussed supra, the judgment of the Apex Court in the
case of Mohd. Malek Mondal (supra), is relevant in the context to
consider. In that case also, the petitioner therein sought quash of the
FIR registered against him on the ground that there was no material
against him except the inadmissible, retracted statement, allegedly
made by the co-accused. The High Court, where the said quash
petition was filed, declined to quash the criminal proceedings
initiated against him. When the said order of the High Court was
questioned before the Apex Court, the Apex Court did not accept the
contention that since the material only available on record was
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
inadmissible, retracted statement, allegedly made by the co-accused
that the petitioner is entitled for quash of the criminal proceedings
and thereby, upheld the judgment of the High Court.
7.4 In another judgment rendered in the case of Mohammed
Farsin v. State, represented through the Intelligence Officer,
rendered in Criminal Misc. Application No. 296 of 2014, the
Supreme Court observed as under:
"...The confession of a accused gives a clue to the
investigating authorities as to how to investigate the matter
and against whom to investigate the matter. Thereafter, it is
for the Investigating Officer to collect the evidence against the
said person who has been named by the co-accused...."
7.5 Thus, from the ratio laid down in the above judgment by the
Apex Court, the legal position is made clear that the statement of co-
accused can be considered and treated as a clue or a piece of
information to inquire or investigate as to the role played by the said
person in commission of the said offence and if any satisfactory and
reliable evidence or material is found during the course of
investigation in support of the said statement given by the co-
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
accused, certainly, the said person against whom the said evidence is
available, would be liable for prosecution. At the stage when the
investigation has commenced or the investigation is going on, in the
said facts and circumstances of the case, it would not be proper to
interdict the investigation or to quash the FIR and the criminal
proceedings initiated thereon against the said person.
7.6 The same view was taken by this Court in the judgment
rendered in the case of Firozbhai Hajibhai Sodha (supra). This
Court in the said judgment has referred all the earlier judgments of
this Court rendered on the point wherein this Court has held that the
said statement of the co-accused can certainly be taken as a clue by
the Investigating Officer and proceed with investigation against the
said person by registering the case against him and that the
proceedings cannot be quashed. This Court also in the said
judgment relied on the judgment of the Apex Court rendered in the
case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu
Yadav, (2004) 7 SCC 528, and the above cited judgment in
Mohammed Farsin's case and held that the FIR and the criminal
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
proceedings initiated against a person on the basis of the statement
of co-accused cannot be quashed under Section 482 of the CrPC.
7.7 In the present context, it is relevant to consider the judgment
of the Supreme Court in the above case of Kalyan Chandra Sarkar
(supra). In the said judgment, Supreme Court clearly held that when
the only other evidence available to the prosecution to connect the
person with the crime is alleged confession of the co-accused which
according to the learned counsel was inadmissible evidence, it is too
premature to accept the said contention.
7.8 The Apex Court further held in the said judgment that the
admissibility or otherwise of the confessional statement and the
effect of evidence adduced by the prosecution and the merit of the
evidence that may be adduced by the prosecution are all matters to
be considered at the stage of the trial.
7.9 Thus, though there are divergent views expressed by this Court
on the said proposition of law, in view of the authoritative
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
pronouncements of the Supreme Court on the point as discussed
supra, which is the law of land and binding on this Court, this Court
has absolutely no hesitation to hold that the proceedings against the
petitioner herein that are initiated by way of registering the FIR on
the basis of the statement of co-accused, cannot be quashed in
exercise of inherent powers of this Court under Section 482 of CrPC.
If ultimately, the Investigating Officer finds material or evidence
regarding the complicity of the petitioner in commission of the said
offence, certainly, he would be liable for prosecution along with the
other accused. If no material is found on the said clue, certainly, the
Investigating Officer would drop the proceedings against him at the
time of filing final report before the concerned Court. Therefore, the
petitions are devoid of merit and they are liable to be dismissed.
8. Before parting with the cases, it is to be observed that if
ultimately no material is found against the petitioner, after
completion of investigation and if the charge-sheet is filed on the
basis of the statement of the co-accused alone, then the petitioner is
at liberty to file a fresh application challenging the legal validity of
NEUTRAL CITATION
R/CR.MA/13199/2019 JUDGMENT DATED: 15/02/2024
undefined
the said charge-sheet and to seek quash of the proceedings against
him if there is no material to proceed against him. In fact, that was
view taken by this Court in Firozbhai Hajibhai Sodha's case, cited
supra.
9. Resultantly, the applications are dismissed. Rule is
discharged. Interim relief, if any, shall stand vacated forthwith.
However, the petitioner is at liberty to file fresh application for
quash after filing of the charge-sheet if the said charge-sheet is filed
on the basis of the statement of the co-accused alone.
[ Cheekati Manavendranath Roy, J. ]
hiren
/SB-I-1
