Gujarat High Court
Pramod Rama Tandel vs State Of Gujarat on 13 June, 2023
R/CR.MA/23358/2017 ORDER DATED: 13/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23358 of 2017
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PRAMOD RAMA TANDEL
Versus
STATE OF GUJARAT
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Appearance:
MR TEJAS P SATTA, MR BHAGIRATH N PATEL and MR NANDISH H
THACKAR, ADVOCATES for the Applicant
MR DHAWAN JAISWAL, APP for the OPPONENT - STATE
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/06/2023
ORAL ORDER
1. By way of present application, the applicant has challenged the impugned orders dated 12.04.2017 passed by the learned Judicial Magistrate, First Class, Navsari in connection with the FIR being CR-III No.927 of 2009 registered with the Jalalpore Police Station, Navsari as well as also the warrant under Section 70 of the Code of Criminal Procedure, 1973 dated 07.08.2010.
2. The brief facts of the case of the applicant are epitomized as under :
The applicant, along with his partners, is running a registered licensed liquor shop at Diu-Daman since long. The Page 1 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 impugned FIR being CR-III No.927 of 2009 is lodged initially against the other accused persons for the offences under the Prohibition Act before the Jalalpore Police Station, District :
Navsari. Charge-sheet is also filed on 17.10.2009 before the competent Court at Navsari. Thereafter, one supplementary charge-sheet came to be filed by the investigating officer, wherein the name of the applicant is shown and it is shown as an absconder.
Without any attempt of arresting the applicant, a warrant under Section 70 of the Code of Criminal Procedure, 1973 was issued. The applicant was never served with the notice of any authority or any Court, though the applicant was residing at the address with his family throughout.
Thereafter, the investigating officer moved an application under Section 82 of the Code and the same was also granted by the learned trial Court.
The accused shown in the FIR initially were tried and acquitted by the learned competent Criminal Court.
It is these proceedings under Section 70 - warrant as well as under Section 82 of the Code of Criminal Procedure, 1973 which are challenged by the applicant before this Court in this application.Page 2 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023
R/CR.MA/23358/2017 ORDER DATED: 13/06/2023
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 applicant has submitted that the learned trial Court has not properly appreciated the facts of the applicant. He has submitted that the learned trial Court has not applied its mind and solely relied upon the investigating officer and issued warrant under Section 70 as well as granted application under Section 82 of the Code of Criminal Procedure, 1973 against the applicant. He has submitted that the applicant was never served with any notice qua the proceedings in question. He has submitted that the applicant is residing with his family and living his routine life. He has submitted that he was never absconded. He has submitted that applicant was running a registered licensed liquor shop in the Union territory i.e. Diu-Daman since long.
4.2 He has submitted that the alleged incident is of the year 2009 and the process is under Section 82 of the Code in the year 2017. He has submitted that the applicant is selling liquor in the territory of Daman and therefore, he Page 3 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 cannot be held liable under the provisions of the Prohibition Act.
4.3 He 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.
4.4 He has submitted that the investigation officer, with ulterior 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. 4.5 He has submitted that this application may be allowed by quashing and setting aside the warrant issued under Section 70 as well as the proceedings under Section 82 of the Code of Criminal Procedure, 1973. 5.1 Learned APP for the State has strongly objected this application. He has submitted that applicant is involved in the commission of offence and therefore, his name is mentioned in the supplementary charge-sheet. He has Page 4 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 submitted that his name is given by the co-accused. He 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 He 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. He 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. He 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. 5.3 He has submitted that the leaned trial Court has ordered to attach the property of the applicant and directed the Collector, Daman regarding the same. He has submitted that the applicant is a head-strong person and is not available and not cooperating the investigation and therefore, this application may be dismissed.
6.1 I have heard learned advocates for the respective Page 5 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 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 It is noted that this Court, on 21.09.2017, has stayed the execution of warrant issued under Section 70 and proclamation under Section 82 of the Code of Criminal Procedure, 1973.
6.3 Further, this Court, on 28.12.2018, has directed the authorities not to take any coercive steps against the applicant.
6.4 Considering the entire facts of this case, the following points are considered by this Court for coming to the conclusion :
The offence, as alleged, is of the year 2009. The process is of the year 2017.
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 Jalalpore - Navsari. The applicant is residing at Daman - Union territory Page 6 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 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.
There are many irregularities in the investigation, which can be seen from the observations made by the learned trial Court in the order dated 06.12.2013. 6.5 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 co-
accused, 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 Page 7 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 Supreme Court has observed thus -
"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 the Page 8 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 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 Page 9 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
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 view of above and under the circumstances, Page 10 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 having regard to the role attributed to the applicant in the offence in question, no 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.
10. For the reasons recorded above, the following order is passed.
10.1 This application is allowed.
10.2 The warrant under Section 70 as well as the process under Section 82 of the Code of Criminal Procedure, 1973 issued by the learned trial Court at Navsari is hereby quashed and set aside.
10.3 Consequently, the proceedings, if any, arising out of the impugned FIR being CR-III 927 of 2017 are hereby Page 11 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023 R/CR.MA/23358/2017 ORDER DATED: 13/06/2023 quashed and set aside qua the applicant only. 10.4 Rule is made absolute accordingly.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 12 of 12 Downloaded on : Fri Jun 16 20:37:00 IST 2023