[Cites 9, Cited by 0]
Gujarat High Court
Harishchandra Choudhary vs State Of Gujarat on 1 December, 2025
NEUTRAL CITATION
R/SCR.A/15557/2025 ORDER DATED: 01/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 15557 of 2025
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HARISHCHANDRA CHOUDHARY & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR R N GHOTRA(2804) for the Applicant(s) No. 1,2,3
MS. HETAL N GAJJAR(14357) for the Applicant(s) No. 1,2,3
MR. H.K.PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 01/12/2025
ORAL ORDER
1. The Petitioners / Original Accused have preferred this Petition under
Article 226 of the Constitution of India read with Section 528 of the Bharatiya
Nagarik Suraksha Sanhita 2023 for the prayer to quash and set aside the FIR
Part 'A' 11196008250211 of 2025 for the offence punishable under Section 54,
115(2), 296(b), 351(2) of the Bharatiya Nyaya Sanhita, 2023 and Section 135
of the GP Act, 1955 dated 02/09/2025 registered with JP Road Police Station,
Vadodara.
2. Heard learned Advocate appearing for the Petitioners and learned APP
for the Respondent - State.
3. Learned Advocate Mr. Amit P. Soliya appears and state that he has
received instructions to appear on behalf of the Original Complainant and he
would be filing his appearance during the course of the day.
3.1 Registry to accept the Vakalatnama of learned Advocate Mr Soliya and
place the same on record.
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4. Learned Advocate appearing for the Petitioners has submitted that none
of the Petitioners herein were present in the City of Vadodara on the day of
incident. The Petitioners herein were in Jaipur and were attending a social
function. The necessary photographs in that regard are produced on record.
He also submitted that the Investigation Officer had verified these aspects and
it was found that none of the Petitioners were present in Vadodara on the day
of incident. He further submitted that Petitioner No1 is aged about 70 Years.
The present FIR is nothing but an abuse of process of law as the FIR is nothing
but a counterblast to the proceedings initiated by the Petitioners against the
complainant. He therefore submitted to allow the present Petition and quash
and set aside the FIR in question qua the Petitioners.
5. Learned Advocate has sought to rely upon the following judgments in
support of his submissions:
(i) Dudh Nath Panday v. State of Uttar Pradesh - (1981) 2 SCC 166
(ii) Binay Kumar Singh v. State of Bihar - (1997) 1 SCC 283
6. Learned APP has opposed the present Application contending that, as
per the settled legal position, the plea of alibi would require the Petitioners to
adduce the evidence showing their absence in Vadodara on the day of incident.
It would be possible only during the course of trial. As per the settled legal
position, this Court cannot consider a plea of alibi while considering the
Petition filed under Section 528 of BNSS. Moreover, upon perusal of the FIR,
the ingredients for the offences alleged against the Petitioners are clearly made
out against all the Petitioners. He therefore submitted to dismiss the present
Petition.
7. Learned Advocate Mr. Amit P. Soliya appearing on behalf of the
Original Complainant has also opposed the Petition contending that there is
NEUTRAL CITATION
R/SCR.A/15557/2025 ORDER DATED: 01/12/2025
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sufficient material collected by the investigating agency indicating a strong
primafacie case against the Petitioners for having committed the offence in
question. He therefore submitted to dismiss the present Petition.
8. Heard learned Advocate for the parties. The primary contention raised
by the learned Advocate appearing for the Petitioners is with regard to the
absence of the Petitioners in Vadodara, where the incident alleged in the FIR
had taken place.
9. The Apex Court in its judgment in case of Rajendra Singh v. State of
U.P. and anr. Reported in (2007) 7 SCC 378 has held:
"The plea taken by Respondent 2 in his petition under Section 482 of
CrPC was that of alibi. No finding on a plea of alibi can be recorded by
the High Court for the first time in a petition under Section 482 CrPC.
The burden to prove the plea of alibi lay upon the accused. This could
be done by leading evidence in the trial and not by filing some affidavits
or statements purported to have been recorded under Section 161 CrPC
before the High Court. In such a case the prosecution would have got
an opportunity to cross-examine the said witnesses and demonstrate
that their testimony was not correct. The whole procedure adopted by
the High Court is clearly illegal and cannot be sustained."
9.1 Thus, it is not open for this Court to consider plea of alibi at this stage.
10. The FIR has been lodged by the complainant against the Petitioners alleging
that, on the day of incident, the Petitioners intercepted the first informant. The first
informant was caught hold of by Petitioner No.3 and thereafter Petitioner No.2 had
inflicted a blow on the body of the first informant. Petitioner No.1 had threatened the
first informant and had also abused him, and thereafter, some fist blows were also
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R/SCR.A/15557/2025 ORDER DATED: 01/12/2025
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administered to the first informant by all the Petitioners. Thus, the Petitioners are
alleged to have committed offence punishable under Sections 115(2), 296(b), 351(2)
and 54 of BNS.
10.1 Upon bare perusal of the FIR, it cannot be said that the ingredients for the
aforesaid offences are not made out against the Petitioners.
11. It is sought to be contended on behalf of the Petitioners that the present FIR is
a counterblast to the proceedings initiated by the Petitioners against the first
informant.
12. Upon perusal of the material available on record, it primafacie does not appear
to be a counterblast nor does it appear to be an abuse of process of law. It would still
be the matter of appreciation of evidence, which would be done at the stage of trial.
13. The judgments sought to be relied upon by the learned Advocate for the
Petitioners would be of no help because those judgments were delivered by the Apex
Court while considering the challenge to the judgment of conviction passed by the
competent court.
14. Having regard to these aspects, no case is made out the Petition is dismissed.
(M. R. MENGDEY,J)
J.N.W / 77
