Gujarat High Court
Vivek Kumar Ramsukh Rehara vs State Of Gujarat on 7 November, 2023
NEUTRAL CITATION
R/CR.MA/579/2020 ORDER DATED: 07/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 579 of 2020
==========================================================
VIVEK KUMAR RAMSUKH REHARA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
ANURADHA G RATHOD(7717) for the Applicant(s) No. 1
MR PY DIVYESHVAR(2482) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS. M.H.BHATT, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/11/2023
ORAL ORDER
1. The present application is filed for seeking following main reliefs:
"A. The Hon'ble Court may be pleased to issue writ or order or directions quashing and set aside the FIR being III C.R.No. 800 of 2019, dated 5.12.2019 registered before Valsad Town Police Station, with all its consequential effect qua applicant.
B. Pending hearing, admission and final disposal of this application, this Hon'ble Court be pleased to stay and suspend execution, operation of FIR being III- C.R.No.800 of 2019, dated 5.12.2019 registered before Valsad Town Police Station, with all its consequential effect qua applicant.
C. Grant ad-interim relief in terms of prayer (B) above.
D. To pass any other and further orders as may be deemed, fit and proper in the interest f justice.
2. The brief facts of the case of the applicant are epitomized as under :
One FIR was registered being III-CR No. 800 of 2019 dated 5.12.2019 registered with Valsad Town Police Station wherein, for the offences punishable under Section No. 65(a)(e), 98(2) and 81 of Gujarat Prohibition Act qua the applicant that he is manager of Page 1 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023 NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined D.J.Wine shop and holds licence for selling the liquor, his name has crop up upon the statement of the co-accused who was arrested with prohibited liquor.
Certain government and police authorities have been demanding huge extortion money from the applicant and other like people who hold license for selling liquor, since past one/two years, these authorities have started demanding such money from all the people in the territory of Daman holding valid license to sell liquor. These authorities had also approached rather threatened the applicant to pay a huge amount of money and failing to do so may lend up the applicant in penal offence, the applicant raised strong objections against such unfair practice and means and getting infuriated, these authorities have recourse to abusing the process of law. The name of the applicant came to be arrayed in the FIR's which were registered at least 6 to 9 years back, and now the applicant is being arrayed as absconding accused, and now the police authorities are behind the applicant for only reason the applicant denied to pay money. Hence, the present application.
3.1 Heard learned advocates.
3.2 Rule. Learned APP waives service of notice of rule on behalf of the State.
4.1 Learned advocate for the applicant has submitted that this Court has, time and again, observed that any person who is having liquor shop in the Union territory cannot be held liable under the provisions of the Prohibition Act.
4.2. He has submitted that the investigation officer, with ulterior Page 2 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023 NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined motive, has dragged the applicant in the offence in question. He has submitted that the learned trial Court has no jurisdiction to issue such warrant in the present case in the aid of investigation. He has submitted that since the applicant did not succumb to the illicit demands of the authorities, he is dragged in the offence in question.
5.1 Learned APP for the State has strongly objected this application. She has submitted that the applicant is involved in the commission of offence. She has submitted that his name is given by the co-accused. She has submitted that the applicant is absconded and did not cooperate the investigation and therefore, warrant under Section 70 was issued by the learned trial Court.
5.2 She has submitted that the applicant was the supplier of liquor and therefore, his presence is necessary to reach to the root of the offence in question. She has submitted that the muddamal - liquor was huge in quantity and therefore, it is necessary for the police authority to reach to the root of the offence. She has submitted that there are other complaints lodged against the applicant and the applicant was not available at the address shown in the complaint. He has submitted that the applicant is not responded the process of the learned trial Court and therefore, process under Section 82 was issued against him.
6.1 I have heard learned advocates for the respective parties. I have also considered the material on record. I have also perused the police papers available with the learned APP. I have gone through the earlier orders passed by this Court in this matter.
6.2 Considering the entire facts of this case, the following points Page 3 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023 NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined
are considered by this Court for coming to the conclusion :
The offence, as alleged, is of the year 2019. The process is of the year 2019. The complaint is under the Prohibition Act only. The applicant is having a registered licensed liquor shop at Daman - Union territory.
The offence is occurred at Valsad.
The applicant is residing at Daman - Union territory with his family
throughout.
The co-accused has given name of the applicant during the interrogation.
Neither any notice from the investigation officer nor any notice from the
learned trial Court was served to the applicant. There is no independent eye-witness to the incident though the incident has occurred in the public place. The main accused/s is acquitted by the learned competent Criminal Court.
6.3 It is noted that this Court has, time and again, decided the issue as to whether any person can be booked for the offence on the basis of the statement of co-accused or not and it is very clear from the observations of this Court time and again that on the basis of the statement of coaccused, no one can be dragged into criminal compliant, keeping in mind the provisions of the Indian Evidence Act.
7. It is relevant to refer to the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -Page 4 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023
NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined "In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."Page 5 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023
NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined
8. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]
24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.
Discussion of decided cases."
9. In addition, it should be noted that other accused individuals whose names were included in the First Information Report (F.I.R.) and were apprehended at the scene of the incident have undergone trial proceedings in their respective cases. It is important to highlight that all of them have been acquitted. It is worth mentioning that the applicant's name was not initially included and was later added as an accused, primarily because he owns a wine shop in Valsad. Taking this into consideration, it would not be fruitful to continue with the proceedings against the present applicant.
10. In view of above and under the circumstances, having regard to the role attributed to the applicant in the offence in question, no Page 6 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023 NEUTRAL CITATION R/CR.MA/579/2020 ORDER DATED: 07/11/2023 undefined offence under the provisions of the Prohibition Act can be said to be constituted. Therefore, arraigning the applicant for the above offences under the Prohibition Act is totally misconceived and amounts to abuse of the process of law. This is, therefore, a fit case for exercise of inherent powers under Section 482 of the Code to prevent the abuse of the process of Court. This application therefore needs to be allowed and the warrant issued under Section 70 as well as the process under Section 82 of the Code of Criminal Procedure, 1973 are required to be quashed and set aside.
11. For the reasons recorded above, the following order is passed:-
11.1 The present applications are allowed.
11.2 The proceedings, if any, arising out of the impugned FIR being III-CR No. 800 of 2019 dated 5.12.2019 are hereby quashed and set aside qua the applicant only in Criminal Misc. Application No.579 of 2020.
11.3. Rule is made absolute accordingly. Direct service is permitted (SANDEEP N. BHATT,J) BEENA SHAH Page 7 of 7 Downloaded on : Tue Nov 07 20:52:02 IST 2023