Gujarat High Court
Chiragbhai Hiteshbhai Jayswal vs State Of Gujarat & on 25 February, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/630/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 630 of 2015
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CHIRAGBHAI HITESHBHAI JAYSWAL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MAHESH K POOJARA, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS.H.B.PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/02/2015
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, wherein, the petitioner has prayed that the FIR being Prohibition C.R.No.144 of 2013 registered with Anand Police Station be quashed and set aside.
2. RULE. Learned APP Ms.H.B.Punani waives service of notice of Rule on behalf of respondents. Rule is made returnable forthwith. With the consent of the learned advocates for the parties, present petition is taken up for final disposal.
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R/SCR.A/630/2015 ORDER
3. Learned advocate Shri Mahesh Pujara for the petitioner has submitted that the FIR being Prohibition C.R.No.144 of 2013 came to be registered for the offenses punishable under Section 66(1)(B), 65(A)(E), 116(1)(b) and 81 of the Prohibition Act. Learned advocate submitted that in the said FIR, petitioner is shown as accused No.2. After the registration of the FIR, Investigating Officer carried out the investigation and filed the chargesheet. However, there is no material against the petitioner in the papers of the chargesheet and therefore, primafacie, it appears that the petitioner has been implicated on the basis of the statement of the co accused and when there is no material in the papers of the chargesheet, the impugned FIR be quashed and set aside. Learned advocate further submitted that even if the FIR is taken at its face value, primafacie, no evidence is culled out from the impugned FIR. Learned advocate for the petitioner further referred to the papers of the chargesheet which are forming part of the present petition and submitted that there is no iota of evidence to connect the petitioner with the alleged offenses. Learned advocate has further relied Page 2 of 7 R/SCR.A/630/2015 ORDER upon the order passed by this Court passed on 27.12.2013 in Criminal Misc. Application No.15155 of 2013, order dated 01.03.2013 passed in Criminal Misc. Application No.4449 of 2008 and submitted that in almost similar circumstances, this Court quashed the proceedings initiated against the concerned accused persons on the ground that except the statement of coaccused, no other material is found in the chargesheet papers and therefore this Court may pass similar order in this petition.
4. On the other hand, learned APP has submitted under the instructions of the concerned Police Officer, who is present in the Court that there is no other material in the chargesheet papers against the petitioner except the statement of coaccused. Thus, the learned APP is also not disputing the fact that no other material is available in the chargesheet papers except the statement of the coaccused which is not forming part of the chargesheet. However, learned APP has vehemently submitted that only on this ground the impugned FIR and the proceedings arising from the said FIR may not be quashed by this Court because there are other three to four offenses which are Page 3 of 7 R/SCR.A/630/2015 ORDER registered against the petitioner. So when the petitioner is having antecedents, this Court may not exercise the powers under Section 482 of Code of Criminal Procedure, 1973 read with Article 226 of the Constitution to India.
5. I have considered the arguments made on behalf of learned advocates for the parties. I have also gone through the material produced on record. I have also perused the orders passed by this Court in similar matters and from the aforesaid, I am of the opinion that when there is no material in the papers of the chargesheet against the petitioner, FIR and the chargesheet filed thereunder are required to be quashed and set aside. Merely because some other cases are registered against the petitioner, petitioner cannot be compelled to face the trial in the present case when there is no material against him in the chargesheet papers.
6. In the case of Girish H. Trivedi Vs. State of Gujarat, this Court (Coram : Hon'ble Mr. Justice J.R.Vora [as he then was]) rendered in Criminal Misc. Application No. 5776 of 2004, in paragraph no. 7 has Page 4 of 7 R/SCR.A/630/2015 ORDER observed thus:
"7. Considering the matter in exercise of powers conferred by Section 482 of Code of Criminal Procedure, it is to be seen, whether the facts disclosed by the charge sheet constitutes any prima facie offence against the petitioner. In this exercise, the Court is not permitted to add or substract anything and shall take the papers or materials on there face value. On going through the papers minutely along with learned advocates, for the parties, the fact emerges that so far as the ownership of the bulk of foreign liquor is concerned, there are statements of the coaccused before the police that the said bulk of foreign liquor was transported by the present petitioner. Now if this fact is considered with Section 3 of the Indian Evidence Act, the said evidence would not be admissible in a trial. Meaning thereby that if, this fact is taken on its face value, it does not disclose any involvement of the petitioner in the crime and the ingredient of any of the offences levelled against him under the Bombay Prohibition Act. It is well settled that the statements made by the coaccused before police cannot be used against the accused. So far as this aspect is concerned, it is clear that there is no material against the present petitioner with the prosecuting agency to prosecute the petitioner. Further if the fact is taken on its face value about the petitioner reaching at the spot in Santro Car near the place of raid by police then too this would not culminate into a material to prosecute the petitioner for charges levelled against him. Mere fact that the police tried to stop the car and the petitioner ran away would not be incriminating as to prosecute the petitioner for Sections 66(1)(B), 65 A & E, 81, 112 and 116 of the Bombay Prohibition Act.
Therefore, after carefully considering the chargesheet papers, prima facie, without embarking upon any inquiry as to truth or falsity for the same, it is clearly borne Page 5 of 7 R/SCR.A/630/2015 ORDER out that no material is brought out to prosecute the petitioner in the said crime. In this view of the matter, this application is required to be allowed."
7. In the instant case also no material is brought out from the chargesheet to prosecute the applicant in the alleged offense. Except the statement of the coaccused there is no other evidence on record. Merely because the applicant was previously involved in similar case would not mean that he is permanent accused in every case registered under the Gujarat Prohibition Act as each case is to be based on independent evidence to connect the applicant for the alleged offenses.
8. Considering the record of the application, it appears that except the statement of coaccused there is no other offence against the applicant and therefore any further continuance of the proceedings in pursuance to the impugned FIR against the present applicant would amount to abuse of process of Court and law and therefore in order to secure the ends of justice this Court is required to exercise its inherent power u/s. 482 of the Code. Resultantly the application is allowed. Impugned FIR registered as Page 6 of 7 R/SCR.A/630/2015 ORDER Prohibition C.R.No.144 of 2013 registered with Anand Police Station and all other consequential proceedings arising out of the aforesaid FIR qua the present applicant only are quashed. It is however made clear that the observations made in this order would apply in case of the present applicant only and trial Court shall proceed with the other accused in accordance with law.
9. Rule made absolute to the aforesaid extent only.
(VIPUL M. PANCHOLI, J.) ANKIT Page 7 of 7