Gujarat High Court
Vasim Amadbhai Mathupotra vs State Of Gujarat on 5 December, 2023
NEUTRAL CITATION
R/CR.MA/6240/2023 ORDER DATED: 05/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6240 of 2023
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VASIM AMADBHAI MATHUPOTRA
Versus
STATE OF GUJARAT
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/12/2023
ORAL ORDER
[1.0] By way of present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the applicant has prayed for the following reliefs:
"(B) This Hon'ble Court may be pleased to allow this present Criminal Miscellaneous Application by quashing and setting aside the FIR being CR No.11208055230066 of 2023 registered with DCB Police Station, Rajkot on 10.02.2023 alongwith all the prior and subsequent proceedings thereto;
(C) Pending the admission and final hearing of this petition, this Hon'ble Court may be pleased to stay the further investigation and other proceedings pertaining to Prohibition C.R. No.11208055230066 of 2023 registered with DCB Police Station, Rajkot qua present petitioner and give direction to the DCB Police Officer for no coercive action taken against present petitioner;"
[2.0] Learned advocate for the applicant has submitted that accused Nos.1 and 2 have been arrested with liquor and present applicant was implicated during the investigation on the basis of Page 1 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined statement of the co-accused. Further, the applicant is not the owner of the vehicle involved in the offence and he is not involved in transporting the liquor. Further, there is no chance of conviction of the present applicant merely on the basis of the statement of co-accused. He has relied on following oral orders passed by the coordinate Bench of this Court in similar quashing petitions and has requested to quash the impugned FIR.
Sr. Matter Number Date of Oral
No. Order
1. CR.MA No.5525/2000 20.11.2000
2. CR.MA No.5458/2000 10.10.2000
3. CR.MA No.900/2001 04.10.2001
4. CR.MA No.1409/2001 09.05.2002
5. CR.MA No.7323/2001 18.01.2002
6. CR.MA No.5527/2001 21.10.2004
7. CR.MA No.5576/2004 10.12.2004
8. CR.MA No.9542/2004 21.10.2004
9. CR.MA No.8443/2005 20.12.2006
10. CR.MA No.6945/2006 20.12.2006
11. CR.MA No.6953/2006 20.12.2006
12. CR.MA No.6954/2006 20.12.2006
13. CR.MA No.7166/2006 26.12.2006
14. SCR.A No.1560/2006 20.12.2006
15. CR.MA No.14106/2006 20.12.2006
16. CR.MA No.17096/2015 18.09.2015
[3.0] Learned APP has vehemently opposed the present application and has submitted that investigation is at nascent stage and therefore, inherent jurisdiction may not be exercised in the present case and has requested to dismiss the present Page 2 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined application.
[4.0] Heard learned advocates appearing for the respective parties.
[5.0] Going through the record it appears that the present application is filed on 10.04.2023 and same is registered on 13.04.2023. The applicant remained absconding and subsequently came to be arrested and then enlarged on regular bail vide order dated 04.12.2023 and thereafter, the applicant has pursued the present application, which was filed way back in the month of April, 2023. It is needless to say that investigation is at preliminary stage and charge-sheet qua present applicant is yet to be filed.
[5.1] It is submitted by the learned advocate for the applicant that applicant is implicated only on the basis of statement of co- accused. In this regard, reference is required to be made to the decision of this Court in the case of Mohmed Salim Abdul Rashid Shaikh vs. State of Gujarat reported in 2001(2) GLR 1580, wherein, in paragraph 12, it is observed as under:
"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."
[5.2] Further, in the case of Mohammed Fasrin vs. State Rep. By the Intelligence Officer rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:
Page 3 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined ".......The confessions of a co-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 officers to collect evidence against the said person who has been named by the co-accused....."
[5.3] At this stage, it will also be profitable to refer to the decision of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, wherein it is observed and paragraph 57 of which reads as under:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;Page 4 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023
NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;..."
[5.4] Insofar as the oral orders passed by the coordinate Bench of this Court as relied on by the learned advocate for the applicant is concerned, it is needless to say that each and every criminal case is required to be considered on its own merits. At this stage it is apposite to refer to the decision of Hon'ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr. vs State Of A.P reported in AIR 2004 SC 132, wherein it has been observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
[5.5] In the case of Sushil Suri vs. CBI reported in (2011)5 SCC 708, it has been observed and held as under:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Justice Cardozo) by matching the colour of one case against the colour of another. To Page 5 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
[5.6] It is pertinent to note that merely citing the oral orders would not avail any assistance to the applicant as no any ratio is laid down by the coordinate Bench in the oral orders relied on by the learned advocate for the applicant. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Rashmi Metaliks Ltd. vs. Kolkata Metropolitan Development Authority reported in (2013) 10 SCC 95, wherein the Headnote C reads as under:
"C. Precedents - Ratio decidendi - Case law - Practice of citing several decisions on a particular point of law - Not useful as courts may, on facts of different cases, arrive at different conclusions - Need to cite leading decision of largest Bench strength that holds the field, if there be such a decision - Court can advance the law, provided the same should be reconcilable with binding precedent - This approach should be followed by coordinate or co-equal Benches and smaller Benches of Supreme Court as well as by subordinate Courts - If coordinate Bench doubts ratio decidendi of previous Bench, it should refer the matter for decision by a larger Bench - Constitution of India, Arts.141 and 144."
The Hon'ble Supreme Court in the said decision in paragraphs 7, 10.5 and 8 has observed and held as under:
"The Supreme Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field. There is little or no advantage to be gained from the manner in which the Court has responded to the factual matrix as other Courts may legitimately Page 6 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined place emphasis on seemingly similar facts to arrive at a different conclusion. The manner in which a Bench appreciates the factual matrix before it can obviously be of value only if a subsequent case presents identical facts, which remains a rarity. But the ratio decidendi has to be adhered to. The counsel must therefore exhibit circumspection in the number of cases they cite. The sheer plethora of precedents makes it essential that this Court should abjure from discussing each and every decision which has dealt with a similar question of law. Failure to follow this discipline and regimen inexorably leads to prolixity in judgments which invariably is a consequence of lengthy arguments.
The rule of precedence, which is an integral part of our jurisprudence, mandates that this exposition of law must be followed and applied even by coordinate or co- equal Benches and certainly by all smaller Benches and subordinate Courts. If a co-ordinate Bench considers the ratio decidendi of the previous Bench to be of doubtful efficacy, it must comply with the discipline of requesting Hon'ble the Chief Justice to constitute a larger Bench. It is a legitimate exercise, perfectly permissible for Benches to advance the law provided this exercise does not lead to a conclusion which is irreconcilable with a binding precedent."
[6.0] In view of the aforesaid settled proposition of law, this Court is not inclined to entertain the present application as mini trial is not permissible and it cannot be presumed that except statement of co-accused no material is available against the present applicant.
[7.0] In wake of aforesaid discussion, present application is dismissed in limine. If no any material or evidence is found against the applicant - accused then the concerned Investigating Officer may submit a report in this regard and in case, if any evidence is found against the applicant - accused then the Page 7 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/6240/2023 ORDER DATED: 05/12/2023 undefined applicant shall have liberty to file appropriate proceedings including discharge application before the learned trial Court.
(HASMUKH D. SUTHAR, J.) Ajay Page 8 of 8 Downloaded on : Wed Dec 06 20:43:15 IST 2023