Visubha Umedsinh Jadeja vs State Of Gujarat
2024 Latest Caselaw 85 Guj

Gujarat High Court

Visubha Umedsinh Jadeja vs State Of Gujarat on 4 January, 2024

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     R/CR.MA/23439/2023                           JUDGMENT DATED: 04/01/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 23439 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                             Sd/-

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1      Whether Reporters of Local Papers may be allowed               Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                        Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          VISUBHA UMEDSINH JADEJA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 04/01/2024

                              ORAL JUDGMENT

1. Heard Mr. Ashish M. Dagli, learned counsel for the applicant and Ms. Divyangna Jhala, learned APP for the respondent State.

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2. Present application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C") seeking to quash and set aside the FIR being CR No. I- 43/2019 registered with Wankaner City Police Station, Morbi and also be pleased to quash the further proceeding arising thereof in nature of charge sheet at Annexure-B as Criminal Case No. 1331 of 2019 pending before the Taluka Court, Wankaner qua the applicant in the interest of justice.

3. Learned counsel for the applicant has stated that it is the consistent practice of this Court that once the chargesheet is filed, petition filed under Section 482 of the Cr.P.C is to be withdrawn and fresh application is being filed. Hence, the Court should entertain and consider such application.

4. At the outset, it is worth to mention that, present application is a successive quashing petition/application. Earlier, the applicant had filed Criminal Misc. Application No.17738/2019, which came to be disposed of as withdrawn vide order dated 13.07.2023. The order dated 13.07.2023 passed by a coordinate Bench of this Court reads as under:-

"Learned advocates for the applicant, on instructions, submits that chargesheet is filed pursuant to the impugned FIR and therefore, seeks permission to withdraw this application with a view to avail appropriate remedy available under the law. Permission as prayed for is granted. This application stands disposed of as withdrawn. Notice is discharged. Interim relief, if any, stands vacated. It is clarified that this Court has not expressed any opinion on merits."

5. As present petition is a successive petition under Section 482 of the Cr.P.C, this Court raised a specific query to the learned advocate for the applicant that the chargesheet is filed on 22.08.2019 and then it is withdrawn on 17.03.2023 and on that day, the ground of filing of charge-sheet was very much available to the

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petitioner, then why it was withdrawn. Even after filing of the chargesheet during pendency of the petition under Section 482 of the Code, is maintainable.

6. Considering the facts of the case as well as the contention taken by the applicant, this Court is not inclined to consider the present application in view of the law laid down by the Hon'ble Supreme Court in the case of Bhisham Lal Verma Vs. State of Uttar Pradesh & Anr. reported in 2023 SCC OnLine SC 1399 as earlier petition was filed in the year 2019 and during pendency of that earlier application, charge-sheet is filed on 22.08.2019 and application was withdrawn vide order dated 13.07.2023. Considering the fact that during a span of four years, neither any amendment was carried out nor any ground was taken in the earlier petition and simply earlier petition was withdrawn with a view "to avail appropriate remedy" under the law and in the opinion of this Court, filing of fresh petition under section 482 of the Cr.P.C cannot be construed as appropriate remedy.

7. It is true that it is permissible to exercise power under Section 482 of the CrPC though charge-sheet is filed. Herein, case is slightly different. Though, ground was available and though charge-sheet was filed in the year 2019, earlier petition was withdrawn on 13.07.2023. There is no doubt about the settled proposition of law to exercise power under Section 482 of the CrPC after filing of charge-sheet, but considering the peculiar facts of the case on hand and in light of the law laid down in the case of Bhisham Lal Verma (Supra), it does not mean to file a second petition under Section 482 of the Cr.P.C by only adding C.C. number in the prayer clause, which is nothing, but window dressing.

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8. Even otherwise, as the charge-sheet is filed, at this stage, Court should not arbitrarily evaluate the material collected during investigation and hold mini trial. In view of the above, as the charge- sheet is filed, it is profitable to refer to the decision of the Hon'ble Supreme Court in the case of Iqbal alias Bala and Others vs. State of Uttar Pradesh and Others reported in (2023)8 SCC 734, wherein it is observed that after filing of quashing petition, if the investigation is completed and chargesheet is filed in the meantime, then proper remedy for accused in such case would be to prefer discharge application under Section 227 of the CrPC.

9. Further, it is appropriate to quote and rely upon the decision of the Hon'ble Supreme Court in the case of Hamida vs. Rashid alias Rasheed and Others reported in (2008) 1 SCC 474, wherein the Hon'ble Supreme Court has explained the term 'alternative remedy' and held that power under Section 482 of the Cr.P.C has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done and has been pleased to deprecate the practice of High Courts in entertaining petitions under Section 482 when there was an effective alternative remedy available. It is also observed that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 of Cr.P.C at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure. In paragraph 8 of the said decision, it has been observed and held as under:

"...It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal

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Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

In view of the above, the word used in the order dated 13.07.2023 is 'to avail appropriate remedy' and hence, this Court is of the considered view that alternative remedy may be construed proceeding other than successive quashing petition under Section 482 of the Cr.P.C.

10. It is apt to mention that, there is no dispute that after filing of the charge-sheet during pendency of the petition, petition filed under Section 482 of the Cr.P.C is maintainable and required to be adjudicated on its own merit and in this regard, reference is required to be made on the decision of Abhishek Vs. State of Madhya Pradesh, reported in 2023 (3) GLH 27. The Hon'ble Apex Court in para 11 held as under:-

"11. This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. vs. State of Gujarat and others {(2011) 7 SCC 59}]. This principle was reiterated in Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part."

11. Hence, it is misconception that merely during pendency of petition, chargesheet is filed, petition filed under Section 482 of the Cr.P.C is required to be withdrawn and fresh application under Section 482 is required to be filed. Hence, the argument canvassed by learned counsel for the applicant is not acceptable. Even otherwise, in the aforesaid settled proposition of law to exercise power under Section 482 of the Cr.P.C, once the application is withdrawn and that to avail appropriate remedy, means the Court

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was not inclined to entertain earlier petition and even on merit is not decided and withdrawn by the litigant, but then litigant ought to have proceeded to avail alternative remedy, which is not under Section 482 of the Code, but under 228 or any other remedy.

12. Even if, we consider that the chargesheet is filed on 22.08.2019 and after considerable time lapse of almost four years, petition came to be withdrawn, meaning thereby, the grounds raised in this petition were very much available in the earlier petition and though it was withdrawn and once again, present petition is filed on the same ground. In such set of circumstances, further argument canvassed by learned advocate Mr. Dagli that in the High Court, there is consistent practice, once the chargesheet is filed during pendency of petition under Section 482 of the Code, then petition is withdrawn and fresh petition is being filed. It is needless to say that as discussed hereinabove in Abhishek (supra), there is no need to withdraw such pending petition filed under Sec. 482 of Cr.P.C merely filing of the chargesheet. Here in the case on hand, earlier petition was filed in the year 2019, chargesheet came to be filed on 22.08.2019 and then, after efflux of four years, petition came to be withdrawn on 13.07.2023. Then once again, on 30.12.2023, after a span of five months, present petition is filed, which is nothing, but a sheer wastage of time of the Court. Even such argument of successive application ought to be filed on the same ground of filing of chargesheet is devoid of merit. If such withdrawal permission is granted and successive application is filed U/s. 482 of Cr.P.C and such practice is adopted or view is endorsed, then it leads to a mere docket explosion and just a waste of time of the Court.

13. Further, in the case of Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 OnLine SC 484, the

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Hon'ble Apex Court observed and held as under:

"Even though, the inherent power of the High Court under Section 482 of the CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the CrPC is not be exercised for the asking."

14. Even the Hon'ble Apex Court in case of Central Bureau of Investigation Vs. Aryan Singh etc., reported in 2023 SCC Online Sc 379, held that scope under Section 482 of the Cr.P.C is very limited and High Court cannot conduct a mini trial. The Hon'ble Apex Court in para 10 held as under:-

"10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not"

15. In view of the law laid down by the Hon'ble Apex Court in the case of Manik B. Vs. Kadapala Sreyes Reddy & Ors., reported in 2023 Live Law 642, High Court should not elaborately discussed the statement of the witnesses recorded under Section 161 of the Cr.P.C. and whether statements are trustworthy or not is required to

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be decided while witness stands in the witness box at the stage of such trial and such exercise is not permissible while exercising jurisdiction under Section 482.

16. In wake of aforesaid discussion, present application stands dismissed at the admission stage. However, it is clarified that, applicant shall have the liberty to move appropriate proceedings before the concerned Court and in the event of filing of any such application or proceedings, the learned Court shall consider the same in accordance with law on its own merit without being influenced by any of the observations made in the order.

Sd/-

(HASMUKH D. SUTHAR,J)

SUCHIT