[Cites 11, Cited by 0]
Gujarat High Court
Tarunbhai Manubhai Patel vs State Of Gujarat on 18 March, 2026
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R/CR.MA/8982/2013 JUDGMENT DATED: 18/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8982 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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TARUNBHAI MANUBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR.VRUNDA SHAH, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/03/2026
JUDGMENT
1. The present application is filed for quashment of the FIR
CR-I No. 40 of 2013, registered with Jetpur Police
Station, Vadodara for the offence punishable under
section 406, 420, 188 of IPC against the present
applicant alleging that though the land was entrusted
for excavating upto 3 mtrs. but the applicant had dug
the said land for more than 1 mtr. at each place.
2. Heard learned advocate Mr.B.M.Mangukiya for the
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applicant and learned APP Ms.Vrunda Shah for the
respondent-State.
2.1. It is submitted by the learned advocate Mr.Mangukiya
that there was not entrustment of the land and in that
background, the FIR does not satisfy the ingredients of
section 405 and in that background no offence under
section 406 can be said to have been committed. It is
also submitted that section 415 defines the cheating and
in absence of ingredients defined in section 415, the
section 420 which is alleged against the present
applicant is also not proved. It is submitted by learned
advocate that as per the decision rendered by this Court
in the case of Govardhankumar Thakoredas Asrani
Vs. State of Gujarat in Criminal Miscellaneous
Application No.24632/2015 no FIR can files unless the
complaint is filed and in that background, the FIR is
nothing but misuse of process of law.
2.2. Per contra, learned APP Ms.Vrunda Shah submits that
the entrustment of the land was made to the applicant
with permission to dig upto 3 mtrs. which was breached
by the applicant and in that background, the prima facie
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involvement for the offence punishable under section
406 and 420 is made out. It is submitted that the FIR
cannot be said to be not maintainable, as the bar of
section 195 would come into play when the stage of
cognizance would come and in that background also, the
FIR does not deserve any interference and the
application deserves to be rejected.
3. Having considered the submissions made by the learned
advocates for the respective parties and on referring the
record it emerges that investigation is yet not
concluded. Section 406, 420 and 188 was alleged
against the present applicant for making the excavation
beyond the permissible limit and on referring section
195, it reflects that bar of section 195 would come into
play when the cognizance stage would be reached.
4. At this stage, reference to Section 190 of the Code of
Criminal Procedure, 1973 is required to be made, which
is reproduced hereinbelow:
Section 190 - Cognizance of offences by Magistrates
(1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under Sub-Section (2), may take cognizance
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of any offence--
(a)upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the
second class to take cognizance under Sub-Section (1) of such
offences as are within his competence to inquire into or try.
5. Undoubtedly, the police have the power to investigate an
offence under Section 156 of the Code of Criminal
Procedure, and such investigation encompasses the
entire continuous process which begins with the
collection of evidence under Section 156 of the Code of
Criminal Procedure.
6. The judgment which is relied by the learned advocate
Mr.B.M.Mangukiya in the case of Govardhankumar
Thakoredas Asrani, this Court has held as under:
"56.I am of the view, having regard to the nature of the allegations
levelled in the five matters referred to above, which are at the stage
of investigation, that the first information reports should be quashed
with liberty to the State to initiate fresh proceedings by following the
procedure prescribed by law. Whatever investigation has been carried
out so far, the same will not be rendered invalid. For the purpose of
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initiating fresh proceedings in accordance with law, the very same
materials can be used. In such circumstances, as an exception, and
without being cited as a precedent, in the peculiar facts of the case, I
am inclined to interfere even in those cases where the charge-sheets
have not been filed. I take notice of the fact that in all the five
cases, referred to in para-53 of this judgment, the investigation is
practically over, and the only thing left, is to file the charge-sheet."
7. As the Court exercised the power in the circumstance as
'exception' and it is also clarified that it would not be
cited as precedent, in the opinion of this Court, the
judgment would not render any help to the present
applicant. In view of the above, in the considered
opinion of this Court, the bar under Section 195 of the
Code of Criminal Procedure would come into operation
only at the stage of taking cognizance. At that stage, the
material collected during the course of investigation can
be utilized for filing of a complaint.
8. In that background, curtailing the investigation on the
ground that a complaint under Section 195 of the Code
is required to be file would amount to an abuse of the
process of law. Therefore, the present application
deserves to be dismissed and the investigation is
permitted to be concluded.
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9. Resultantly, this application for quashment of FIR CR-I
No. 40 of 2013, registered with Jetpur Police Station,
Vadodara, is rejected.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
