Gujarat High Court
Rameshbhai Vallabhbhai Abhangi vs State Of Gujarat on 2 August, 2024
NEUTRAL CITATION
R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2049 of 2021
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2021
In R/CRIMINAL MISC.APPLICATION NO. 2049 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAMESHBHAI VALLABHBHAI ABHANGI
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SR. ADVOCATE with MR RD DAVE(264) for the Applicant(s)
No. 1
MR MITESH AMIN, ADDL. ADVOCATE GENERAL with MR HK PATEL,
ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 02/08/2024
CAV JUDGMENT
[1.0] RULE. Learned APP Mr. H.K. Patel waives service of notice of Rule on behalf of the respondent - State of Page 1 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined Gujarat. Heard learned Senior Advocate Mr. I.H. Syed assisted by learned advocate Mr. R.D. Dave for the petitioner and learned Additional Advocate General Mr. Mitesh Amin assisted by learned APP Mr. H.K. Patel for the respondent - State of Gujarat.
PROLOGUE:
[2.0] By way of present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the petitioner seeks quashing of the FIR being CR No.11202008202186 of 2020 dated 15.10.2020 registered with City 'A' Division Police Station, District Jamnagar for the offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short "GUJCTOC Act") as well as under Sections 120(B), 386, 387, 506(1) and 506(2) of the Indian Penal Code, 1860 (for short "IPC").
FACTUAL MATRIX:
[3.0] The allegations in brief in the impugned FIR are as follows:
[3.1] Upon receiving the intelligence by the Superintendent of Police, Jamnagar, investigation was carried out by entering Entry No.3/2020 dated 30.09.2020, on instruction and approval of Superintendent of Police, an Page 2 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined enquiry was conducted wherein, it was revealed that, accused No.1 - Jaysukhbhai @ Jayeshbhai Muljibhai Patel is involved in running organized crime syndicate in Jamnagar involving extortion, land grabbing, contract killing and money laundering by use of violence or threat of violence and criminal intimidation. The organized crime syndicate being run by accused No.1 and his associates have been targeting businessmen in Jamnagar, especially the builders, real estate developers and land owners through whatsapp as well as other VOIP applications.
[3.2] Present petitioner / Accused No.7 - Ramesh Vallabhbhai Abhanghi, resident of Plot No.82/83, Kevalia Vadi-1, in front of Amusement Park, Jamnagar and accused No.8 - Mukesh Vallabhbhai Abhanghi, resident of 183, Siddhi Park, Behind Mehulnagar, Jamnagar are associated with Shivdhara Buildcon, a construction company involved in various land development projects in Jamnagar. It is learnt that, these accused persons are in possession of unaccountable property on behalf of the "criminal syndicate". These accused persons have been receiving part of the illegal proceeds of said crime syndicate and invest the same in their business projects on behalf of accused No.1 - Jaysukh Ranpriya and these persons are abetting the syndicate by rendering financial assistance to the crime syndicate led by Jaysukh Ranpariya. Upon Page 3 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined enquiry through human sources, the technical analysis of the mobile phone call records and from the past criminal antecedents of the crime syndicate, it is ascertained that, accused persons by a pre-planned conspiracy running an organized crime syndicate in Jamnagar and involved in illegal activities viz. extortion, land grabbing, contract killing and money laundering by use of violence or threat of violence and criminal intimidation. The organized crime syndicate being run by accused No.1 and his associates have been used targeting businessmen in Jamnagar, especially the builders, real estate developers and land owners. Against the member of syndicate in total 59 offences are registered prior to lodgment of impugned offence. Further, it is alleged that present petitioner is a member of crime syndicate in commission of crime.
SUBMISSIONS ON BEHALF OF PETITIONER: [4.0] Learned Senior Advocate Mr. I.H. Syed assisted by learned advocate Mr. R.D. Dave for the petitioner has submitted that the petitioner is falsely enroped in the offence and he is not associated in any manner with Shivdhara Buildcon, a construction company in Jamnagar as alleged in the FIR. The alleged Shivdhara Buildcon is an unregistered partnership firm constituted in June, 2020 for construction of commercial building and said company has purchased a plot and after Page 4 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined completing all formalities plan was sanctioned. The petitioner is not in any manner connected with the possession of any unaccountable property on behalf of the alleged crime syndicate. The petitioner has no relation whatsoever with the principal accused No.1. Based on baseless allegations that, present petitioner is connected with the alleged illegal proceeds of accused No.1. Even, the Schedule annexed with the FIR depicts one offence being I-CR No.221/2014 was registered for the offences punishable under Sections 326, 323, 143, 147, 149 of the IPC and under Section 135(1) of the Gujarat Police Act in connection of the scuffle with the complainant, but with the consent of complainant said FIR and further proceedings thereto came to be quashed by the High Court vide order dated 24.12.2014. The petitioner is not having any past antecedent. The Special Act is enacted to control the terrorist activities by organized crime syndicate and matters connected therewith or incidental thereto. Herein, no case is made out to invoke the provisions of the Special Act or any provision of the GUJCTOC Act as the petitioner is neither the member of syndicate nor in anyway connected with the main accused. Even, accused No.1 is not residing in India as Accused No.1 is involved in other offences and he is absconding since last many years and petitioner has neither any relation nor in contact of accused No.1. The FIR is nothing but ill-motivated and Page 5 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined filed due to political rivalry between the leaders and petitioner is made scapegoat.
[4.1] Further, learned Senior Advocate Mr. Syed has relied on the decision of Hon'ble Supreme Court in the case of State of Gujarat vs. Sandip Omprakash Gupta reported in 2022 SCC OnLine (SC) 1727 and submitted that, to invoke the provisions under the GUJCTOC Act, more than one charge-sheet and offence prior to promulgation of the GUJCTOC Act is a pre-requisite condition. Herein, no any other offence was pending or registered when the GUJCTOC Act was promulgated. To consider the 'continuing unlawful activity' as defined under Section 2(1)(c) of the GUJCTOC Act, necessary requirement is filing of separate FIR which has been registered against any perpetrator member or a gang after the promulgation of the GUJCTOC Act i.e. after 01.12.2019. Herein, no any offence is registered against the present petitioner after promulgation of the GUJCTOC Act, which came into force with effect from 01.12.2019. Herein, the impugned FIR is registered on 15.12.2020 and on that day, prior to and/or subsequent thereto, there was no any charge-sheet having been filed in the competent Court within preceding period of 10 years of registration of offence against petitioner.
Hence, no offence is made out against the petitioner under the provisions of the GUJCTOC Act and there is Page 6 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined no any evidence which suggests that present petitioner is a member of any organized crime syndicate.
[4.2] Further, to bolster his argument he has relied on the decision of Hon'ble Supreme Court rendered in the case of State of Maharashtra vs. Shiva @ Shivaji Ramaji Sonawane reported in (2015) 14 SCC 272 and submitted that, as the GUJCTOC Act is promulgated on 01.12.2019 and no any offence is registered thereafter against the present petitioner and prior thereto one offence was registered which is already quashed and set aside. Hence, petitioner has not indulged in any unlawful activity after promulgation of the GUJCTOC Act and petitioner is not indulged in continuing unlawful activity after the promulgation of the GUJCTOC Act. Further, he has relied on the decision in the case of State of Maharashtra & Ors. vs. Lalit Somdatta Nagpal & Anr. reported in (2007) 4 SCC 171 and submitted that Court is bound to strictly interpret the provision of law and no any serious offence is alleged against the petitioner which is punishable with imprisonment for more than 3 years or no any charge-sheet is filed against the petitioner and hence, no offence is made out. In the case of Lalit Somdatta Nagpal (Supra) the offence was registered under the Sales Tax Act and Essential Commodities Act which were simple in nature. Herein also, offence is simple in nature and has already been Page 7 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined quashed by the Court in quashing petition by consent. Further, he has submitted that in connection with the present offence also, while considering bail application of co-accused Nos.4 and 8 viz. Atul Vitthalbhai Bhanderi and Mukeshbhai Vallabhbhai Abhanghi respectively, the High Court and Hon'ble Supreme Court has considered the role and come to conclusion that there was no any regular participation in any crime on the part of the accused Nos.4 and 8 and were enlarged on bail. Considering the requireemnts to invoke the provisions under the GUJCTOC Act and consdiering the "continuing unlawful activity", present accused is having lesser role than the said accused Nos.4 and 8 viz. Atul Bhanderi and Mukesh Abhanghi. Hence, he has requested to allow the present petition and quash and set aside the impugned FIR as impugned complaint is nothing but abuse of process of law. No other submissions have been made by the learned Senior Advocate for the petitioner.
SUBMISSIONS ON BEHALF OF RESPONDENT - STATE:
[5.0] Learned Additional Advocate General Mr. Mitesh Amin assisted by learned APP Mr. H.K. Patel for respondent - State of Gujarat has vehemently opposed the present petition and submitted that present petitioner is named in the FIR, he is absconding since long and proceedings under Section 82 of the CrPC came to be initiated since July, 2021. Present petitioner is the member of Page 8 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined organized crime syndicate and used to take undue advantage of syndicate and by threatening witnesses he grabs the property by adopting the modus operandi of the syndicate.
[5.1] The alleged compromise in case arising out of FIR being I-CR No.221/2014 was not genuine or voluntary but was under coercion. The said offence was registered for the offences punishable under Sections 326, 323, 143, 147, 148 and 149 of the IPC and though the complainant was hospitalized, he was pressurized and within three days of registration of offence, under coercion he was forced to settle the dispute and based on said settlement in non-compoundable offence, consent quashing petition was filed before this Court. Such settlement cannot have any value in the eyes of law. The witnesses have stated and deposed against the present petitioner and his brother. Petitioner is a partner and as a part of conspiracy and as a member of syndicate, they used to make a call through accused No.1. During August, 2020 to October, 2020, they have committed many offences.
After collecting sufficient material and evidence including whatsapp call and any other material, charge- sheet is filed. The witnesses have given statement against the present petitioner. The present petitioner and his brother are directly connected with accused No.1.
Page 9 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined [5.2] Further, prior to eight years, by adopting same modus operandi and in the year 2020 also, property was purchased by the present petitioner and his brother. Both the brothers are doing illegal activities in partnership of accused No.1. Within short span of three years, they have accumulated in large number of properties by indulging into such illegal activities. Even, other witnesses have also stated that the present petitioner and his brother have also created forged power of attorney concerning property situated at village Kasundra and said property is having value of Rs.27 Crore and then executed the forged document and accused No.1 has also extorted money and grabbed the land in connivance and collusion of present petitioner. Sufficient material available against syndicate alongwith call details of members of organized crime syndicate which is part of charge-sheet. The present petitioner alongwith his brother and other accused under the leadership of accused No.1 collected ransom and margins from the builders, farmers and land owners and if they fail to do so then they put the titles of property under cloud and engaged in antisocial activities.
[5.3] Further, he has submitted that the question does not arise herein no any offence is registered prior to 10 years because to invoke the GUJCTOC Act only it is Page 10 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined required to be shown that petitioner is a member of organized crime syndicate and no individual charge- sheet is required. Hence, no case is made out to quash and set aside the impugned proceeding.
[5.4] Insofar as reliance placed on the decision in the case of Sandip Omprakash Gupta (Supra) by the learned Senior Advocate for the petitioner is concerned, learned AAG has submitted that said decision will not be helpful to the petitioner as all the orders and observations are made while considering the bail application. What is required to be considered is while exercising the power to invoke the provisions of the GUJCTOC Act, the issue is settled now by the Hon'ble Apex Court in the case of Zakir Abdul Mirajkar vs. The State of Maharashtra & Ors. reported in 2022 SCC OnLine 1092 wherein the Hon'ble Supreme Court has categorically denied about the requirement of more than one charge-sheet against individual to invoke the provisions of the MCOCA. The GUJCTOC Act is also having pari materia of the said MCOCA wherein, Apex Court has clearly held that the approval under the Act is in respect of an offence and not in respect of the offender. Herein, the Court has to consider that. Once it is established that petitioner is a member of organized crime syndicate then proceeding would lie and proceeding under the GUJCTOC Act can be invoked and further Hon'ble Apex Court has been Page 11 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined pleased to consider that more than one charge-sheet is not required to be filed with respect to each accused person. Hence, the argument canvassed by the petitioner is not acceptable as requirement of registration of the offence / or charge-sheet is not required in individual capacity as the petitioner is member of alleged organized crime syndicate then need not have more than one charge-sheet filed against the present petitioner. Hence, he has submitted that in view of the involvement of the present petitioner in the offence, has requested to dismiss the present petition in view of the law laid down by Hon'ble Apex Court in the case of Zakir Abdul Mirajkar (Supra).
[6.0] Refuting the submissions of learned AAG Mr. Mitesh Amin, learned Senior Advocate Mr. Syed has submitted that, Hon'ble Apex Court has interpreted the provisions of the GUJCTOC Act in the case of Sandip Omprakash Gupta (Supra) wherein, it is observed that more than one charge-sheets is required to be considered with respect to the offences punishable with more than three years' imprisonment. The Apex Court has also considered the decision in the case of Shiva @ Shivaji Ramaji Sonawane (Supra) and concluded that after promulgation of the GUJCTOC Act, no any offence is registered against the present petitioner and hence, in present offence petitioner cannot be considered as Page 12 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined continuously engaged in with unlawful activities. As the pronouncement in the case of Sandip Omprakash Gupta (Supra) is a subsequent one, the Court has to consider keeping in mind the fact as divergent views in two decisions of the Hon'ble Supreme Court and decision of later in point of time delivered the Bench is required to be considered. Herein, the decision in the case of Sandip Omprakash Gupta (Supra) is subsequent to the decision in the case of Zakir Abdul Mirajkar (Supra) and hence, the Court has to consider the subsequent decision as a binding precedent and in this regard, he has relied on the decision in the case of Govindanaik G. Kalaghatigi vs. West Patent Press Co. Ltd. and Anr. reported in AIR 1980 (Kar.) 92. Hence, he has requested to allow the present petition.
ANALYSIS & REASONING:
[7.0] I have given thoughtful consideration to the arguments canvassed by learned advocate appearing for the respective parties.
[8.0] Turning back to the facts of the case, perusing the complaint / investigation papers and statement of witness before the Superintendent of Police, Devbhumi Dwarka following the procedure under Section 16 of the GUJCTOC Act, confession is recorded before the SP, Devbhumi Dwarka (Name of witnesses is not mentioned Page 13 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined so as to mask the names of witnesses during investigation for the purpose of safety, security and secrecy). Perusing the said statement it appears that present petitioner alongwith other co-accused was in contact with accused No.1 and at the instance of accused No.1, used to put the titles of valuable properties under cloud and extort money and executed sham sale deeds. Even, accused No.1 is having checkered history as he is running the syndicate and present petitioner is also abetting the said act of accused No.1.
[8.1] Further, from investigation papers, it reveals that, the present petitioner and his brother and accused No.1 were also partners in land business and accused used to give information qua property through video call to accused No.1. Said factum is confirmed by other witnesses also and stated about the involvement and criminal activities of accused No.1. Accused No.1 is having several antecedents and indulged in multiple criminal offences not only in Jamnagar but various States also and around 42 offences are registered against accused No.1 in the State of Maharashtra and Gujarat. Accused No.1 and his organized crime syndicate is involved in offences of murder, extortion, cheating, forgery of land and financial fraud. Even, Enforcement Directorate has also recorded that the accused No.1 is engaged in money laundering also. The member of Page 14 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined syndicate of accused No.1 and his accomplices used to identify the prime location of land which is available for sale in the market then they create forged documents of the said property and try to create illegal claims on such property and they put under cloud the title of such properties. Thereafter under the collusion and criminal intimidation forced to the party to enter into compromise or settle the dispute with them and they extort money from the party and similar is the strategy adopted by the gang if which not yielding the result in that event, they hire criminals as shooters to target the owners of land, their near and dear ones and create terror in the minds of people and adopting the same modus operandi syndicate is indulging in such illegal activities.
[8.2] Even, accused No.1 conspired and hired killers and attacked on one Advocate and he was murdered. The motive for murder was to give a message and to create terror in public so that, no one can dare to raise voice against such illegal activity of syndicate and if anyone raises voice or oppose then he would be eliminated by the syndicate and thereby they have created fear in the minds of people / victim and public at large. Even, the syndicate used to keep constant surveillance on victim and his family members and put them under fear and terror so that they can achieve their goal. Against the Page 15 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined syndicate members in total 59 offences are registered, which are narrated in the FIR, which are prior to and subsequent to promulgation of the GUJCTOC Act. Thus, syndicate is continuously involved in unlawful activity and committing offences.
[9.0] In aforesaid background, the first and foremost contention of learned Senior Advocate Mr. Syed for the petitioner that, to invoke the provisions of the GUJCTOC Act, prosecution must have to show that prior to lodgment of the FIR within preceding period of 10 years more than one charge-sheet for offence which is punishable with imprisonment for more than 3 years required to be filed. Herein, in the case on hand, prior to promulgation of the GUJCTOC Act or subsequent thereto, no any offence is registered against the present petitioner and hence, as basic requirement is not satisfied, question does not arise to invoke the provisions of the GUJCTOC Act against the present petitioner. In the impugned FIR offence at Sr. No.59 against the petitioner is mentioned which is I-CR No.221/2014 for the offences punishable under Sections 326, 323, 143, 147, 148 and 149 of the IPC is mentioned against the present petitioner. The said FIR is already quashed and set aside by the High Court and said fact is also mentioned in the impugned FIR itself. In view of the above, as such today no any charge-sheet or no any Page 16 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined offence subsequently registered or is pending against the present petitioner and petitioner is neither connected with the syndicate nor connected with Shivdhara Buildcon or any other member of syndicate. Hence, accused is not involved in any continuous unlawful activity. Learned Counsel for the petitioner has relied on the decision in the case of Sandip Omprakash Gupta (Supra) and submitted that to invoke the provisions of the GUJCTOC Act, filing of charge-sheet or taking cognizance is mandatory which is satisfied herein, to invoke the provision of Section 3 of the GUJCTOC Act as the petitioner is not involved in any previous offences which is mandatory requirement and prosecution itself failed to show that petitioner is involved in the offence prior to promulgation of the GUJCTOC Act and if such condition is not satisfied then where a person commits no unlawful activity after invocation of GUJCTOC Act, in such circumstances, petitioner cannot be arrested or prosecuted under the said Act on account of the GUJCTOC Act.
[10.0] It would be appropriate to refer to sections 2(1)(a), 2(1)
(c), 2(1)(e) and 2(1)(f) of the GUJCTOC Act, which are as under:
(i) "Sec.2. (1) In this Act, unless the context otherwise requires,
(a) "abet" with its grammatical variations and Page 17 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined cognate expressions, includes-
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate;
(ii) the passing on or publication of without any lawful authority, any Information likely to assist the organised crime syndicate and the passing on or publication of or distribution of, any document or matter obtained from the organised crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate for committing an offence under this Act;
x x x
(ii) 2(1)(c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence;
(iii) The ingredients of a 'continuing unlawful activity' are as follows:
a. The activity must be prohibited by law for the Page 18 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined time being in force;
b. The activity must be a cognizable act punishable with imprisonment of three years or more;
c. The activity may be undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such a syndicate;
d. More than one charge-sheet should have been filed in respect of the activity before a competent court within the preceeding period of ten years; and e. The court should have taken cognizance of the offence.
(iv) 2(1)(e) "organised crime" means any continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, running large scale gambling rackets, human trafficking racket for Prostitution or ransom by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means;
(v) The ingredients of 'organized crime' are as under:
a. The existence of a continuing unlawful activity;
b. Engagement in the above activity by an individual;Page 19 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024
NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined c. The individual may be acting singly or jointly either as a member of an organized crime syndicate or on behalf of such a syndicate;
d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency.
(vi) 2(1)(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;
(vii) The elements of the definition of 'organized crime syndicate' are as follows:
a. A group of two or more persons;
b. Who act singly or collectively, as a syndicate or gang; and c. Indulge in activities of organized crime.
[10.1] Further, it is appropriate to refer to the provisions of the GUJCTOC Act, which read as follows:Page 20 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024
NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined
3. (1) Whoever commits an offence of organised crime shall,--
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lakh;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs.
(5) Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lakhs."
[11.0] Upon bare perusal of aforesaid provisions it is clear that, to invoke the provisions of GUJCTOC Act, prosecution has to show only that, the petitioner - accused is a member of syndicate or a gang and individual charge- sheet is not necessary and charge-sheet or offences against syndicate must have been registered. Even Page 21 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined earlier offence registered against petitioner being I-CR No.221/2014 for the offences punishable under Sections 326, 323, 143, 147, 148 and 149 of the IPC were non- compoundable offences and within three days after registration of the said complaint, though the complainant was hospitalized, he was pressurized and coerced to enter into compromise and on the basis of compromise, proceedings of said FIR being I-CR No.221/2014 were quashed and set aside by the coordinate Bench of this Court. In this regard, the complainant of the said FIR has also given a statement and he is also cited as a witness in the impugned offence. He has stated that, though complainant in the said offence had sustained grievous hurt though under coercion he forced to settle the offence which clearly indicates the involvement and unlawful activity of present petitioner - accused. Even, the petitioner is also member of syndicate and number of witnesses have given statement before the Superintendent of Police and Dy.S.P. supporting the case of prosecution and perusing the investigation papers also it appears that the present petitioner is a member of organized crime syndicate. Considering statements of 24 witnesses including two Advocates (to maintain secrecy, security and interest of witnesses, names of witnesses are not mentioned).
Page 22 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined [11.1] Perusing the said statements it further appears that the present petitioner is a member of syndicate and he is close to accused No.1 and accused persons are involved in unlawful activities of syndicate and abetting the unlawful act of syndicate led by accused No.1. The Hon'ble Supreme Court in the case of Kavitha Lankesh vs. State of Karnataka and Others reported in (2022) 12 SCC 753 (3 Judges' Bench) has been pleased to hold that, the requirement for invocation of offences under Sections 3(1) and sections 3(2) to 3(5) of the Karnataka Control of Organized Crimes Act, 2020 is that more than two charge-sheets should be having been filed for the specified offences before the competent Court in the previous ten years. Further, it has been held that it applies only to the offence of organized crime punishable under Section 3(1) and not to offences specified in Ss.3(2) to (5) and that too such charge- sheets need to be only qua the organized crime syndicate and not qua individual members and categorically held that, it is not essential that more than three charge-sheets have been filed against a person so named before a competent Court within the preceding period of 10 years and that Court had taken the cognizance of such offence. Hence, on the said ground, quashing of the impugned proceedings is not permissible as said requirement is only for the offences registered only under section 3(4) or in the case wherein Page 23 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined to invoke the provision of section 3(1) herein against petitioner alleged that he is associated with syndicate and syndicate as syndicate in involved in unlawful activity.
[11.2] Further, the Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar (Supra), on the same issue has answered by elaborately discussing and considering the decisions in the case of Kavitha Lankesh (Supra); State of Maharashtra & Ors. vs. Lalit Somdatta Nagpal & Anr. reported in (2007) 4 SCC 171 and Govind Sakharam Ubhe vs. State of Maharashtra and has been pleased to hold in paragraph Nos.76 and 77(c) as under:
"76. The appellants argued that gambling is punishable with a maximum sentence of 2 years and does not, therefore, fall within the scope of MCOCA (which requires the commission of a crime punishable with imprisonment of 3 years or more). However, not all the offences punishable under MCOCA have this requirement. The appellants have been charged under the following provisions of MCOCA:
a. Section 3(1) i.e., the offence of committing organized crime requires the accused to have committed a cognizable offence which is punishable with imprisonment of three years or more.Page 24 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024
NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined b. One part of Section 3(2) also contains a similar requirement to Section 3(1), namely persons can be accused of conspiring, attempting to commit, advocating, or knowingly facilitating the commission of an organised crime or any act preparatory to organised crime, only if the offence in question is a cognizable one, which is punishable with imprisonment of at least three years. However, those accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. The definition of "abet" in Section 2(1)(a) would be applicable in such cases.
c. Section 3(4) provides that any person who is a member of an organized crime syndicate is liable to be penalized. The definition of an organized crime syndicate in Section 2(1)(f) indicates that it is necessary to indulge in organized crime to be considered a member. Section 2(1)(e) indicates that persons are said to commit organized crime when they are involved Page 25 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined in continuing unlawful activity. Continuing unlawful activity, in turn, means a prohibited activity which is a cognizable offence punishable with imprisonment of at least three years.
d. Section 3(5) stipulates that those who hold any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds are liable to be punished. Once again, the definition of an organized crime requires the commission of a cognizable offence punishable with imprisonment of three years of more. Hence, Section 3(5) MCOCA may be invoked only with respect to offences which are punishable with imprisonment of three years of more.
77(c). More than one charge-sheet is not required to be filed with respect to each accused person.
The appellants have argued that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them. This submission does not hold water. It is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person Page 26 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined who is alleged to be a member of such a syndicate.
[11.3] In view of above proposition of law and as per section 2(1)(a) of the GUJCTOC Act, a person abetting an offence is against those accused for abetting commission of offence crime need not be charged with cognizable offence punishable with imprisonment of three years as abetting an offence is also an offence under Section 2(1)(a) of the GUJCTOC Act. Herein, allegation against accused is of abetment and member of syndicate and hence, argument canvassed by learned Senior Advocate that requirement is more than one charge-sheet for offence punishable with imprisonment of more than 3 years preceding 10 years of promulgation of the GUJCTOC Act for the petitioner is not sustainable.
[11.4] Further, learned Senior Advocate Mr. Syed for the petitioner has submitted that the Court has to follow the law laid down by the Hon'ble Supreme Court in the case of Sandip Omprakash Gupta (Supra) as the said pronouncement is subsequent and he has relied on the decision in the case of Govindanaik G. Kalaghatigi vs. West Patent Press Co. Ltd. and Anr. reported in AIR 1980 (Kar.) 92 and submitted that, when there is a conflict between two decisions of Hon'ble Supreme Court then later one of the two decisions or the decision Page 27 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined of larger of the Benches which rendered those decisions that should be followed by the High Court.
[11.5] Further, learned Senior Advocate Mr. Syed has mainly stressed upon the decision of the Hon'ble Supreme Court in the case of Sandip Omprakash Gupta (Supra) more particularly paragraph 29(vi)(a) wherein, it is observed that, for charging a person of organized crime or being a member of organized crime syndicate, it would be necessary to prove that the persons concerned have indulged in respect of similar activities (in the past) more than one charge-sheets have been filed in competent court within the preceding period of ten years. But, in the case of Kavitha Lankesh (Supra), a Three Judges' Bench has observed that charge-sheet not against individual but against the crime syndicate is required to be considered and said requirement to invoke offence under Section 3(1), not for other section of 3(2) to 3(5) of the GUJCTOC Act. The said pronouncement was not brought to the notice to the Hon'ble Bench or considered by the Hon'ble Apex Court in subsequent pronouncement in the case of Sandip Omprakash Gupta (Supra). In the case of Abdul Zakir Mirajkar (Supra), the case of Kavitha Lankesh (Supra) and Govind Sakharam Ubhe v. State of Maharashtra have been considered and by elaborately discussing the provisions of MCOCA, the Apex Court has come to Page 28 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined conclusion that more than one charge-sheet is not required to be filed with respect to each accused and charge-sheet filed in respect of organized crime syndicate which is considered. Herein, it is not in dispute that more than one charge-sheet or offences are not registered against the petitioner individually but 58 offences registered against original crime syndicate, which is mentioned in the impugned FIR. Further, in aid of section 2(1)(a) of the GUJCTOC Act defined to abet an offence present petitioner is member of syndicate and associated with accused No.1. The allegation against the petitioner is that, he is abetting in the commission of organized crime and to abet an offences, as defined under Section 2(1(a) of the GUJCTOC Act, which is applicable in the case on hand. Hence, merely because earlier complaint was quashed is not a ground to consider that the petitioner - accused is not involved in or connected with the syndicate.
[11.6] Even, it has come on record that, under coercion, non-
compoundable offences under Section 326 of IPC have been settled by the present petitioner and in this regard statement of concerned complainant is also recorded. Sometimes, though offence is not serious one however, by such offences a proclivity of petitioner - accused through which the accused is involved in illegal activity also reflects.
Page 29 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined [11.7] Further, learned Senior Advocate for the petitioner has submitted that Court should follow the binding decision of Hon'ble Supreme Court. in the case of Sandip Omprakash Gupta (Supra). In the case of Govindanaik G. Kalaghatigi (Supra) the Karnataka High Court held that if divergent opinion of equal strength of Bench, Court should follow the later one. To deal with aforesaid submission, considering the various pronouncements of Hon'ble Apex Court on the subject of precedential or binding strength of decision following fact is culled out :
Where a Judge finds that different views have been taken by different judgments of Supreme Court, the court have to decide which of the decisions will prevail, by applying the following well-recognized principles (not exhaustive):
(a) The decisions of larger Benches will prevail over the decisions of smaller Benches of the same Court. In fact, the decision of a smaller Bench is deemed to be overruled, if a subsequent larger Bench lays down the law to the contrary (for this purpose, the decision of the majority of a three-
Judge Bench will be considered to be the decision of a larger Bench, when compared to an earlier decision of a two-Judge Bench). Where, however, the decision of an earlier larger Bench Page 30 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined has been noticed and explained, then the decision of the later smaller Bench will be the binding precedent.
(b) A decision which merely adds to the principle stated by a larger Bench or explains the earlier decision of a larger Bench will not be considered to be a decision in conflict with the earlier larger Bench.
(c) If the decisions of coordinate Benches of equal strength differ, and the later decision does not notice or explain the earlier decision(s), then, the court may choose that decision which it considers to be more closer to the facts of the case or which more directly deals with the legal issue. Where, however, the later decision notices the earlier decision and distinguishes it, the subsequent decision will prevail over the earlier decision.
(d) If a court considering a particular provision of law has two decisions before it, one laying down thelaw with reference to the same or identical provision of law, and the other laying down the lawwithreference to a similar but not an identical provision, the court is bound to follow Page 31 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined the decision that deals with the same/identical provision, even though the other decision with reference to a similar but not identical section, is of a larger Bench or of a later date.
(e) When a Constitution Bench has rendered a decision on an issue, the subsequent Benches of lesser strength decide a similar question somewhat differently, and do not explain the decision of the earlier Constitution Bench, the later decision(s) should be. construed in consonance with the principles laid down by the Constitütion Bench, as the subsequent smaller Benches could not be taken to have intended a different view.
Same principle will apply in considering the inter se preferability of the decisions of the High Court.
[11.8] Moreover, I lay hand on decision of the Madhya Pradesh High Court rendered in the case of Smt. Kalabai Choubey and Others vs. Rajabahadur Yadav and Another reported in AIR 2002 Madhya Pradesh 8 in paragraph 47 has discussed about the binding nature of direct conflict between the decisions of co-equal Benches of Hon'ble Supreme Court and come to conclusion that High Court is bound to follow the Page 32 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined judgment which appears to state law more elaborately and more accurately and in confirmity with scheme of a statute and both views of Supreme Court are not binding. Paragraph 47 of the said decision reads as follows:
"47. It is, therefore, obvious that even where there is a direct conflict between the decisions of the co-equal Benches of Supreme Court, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. Both the views of the Supreme Court cannot be binding on the courts below. In such a situation, a choice, however difficult it may be, has to be made upon by the appellants cannot come to their rescue."
Keeping in mind the aforesaid principle as in the case of Zakir Abdul Mirajkar (Supra), the Hon'ble Supreme Court has elaborately discussed the object of legislature of MCOCA and even the provisions of MCOCA which are pari materia with the GUJCTOC Act and elaborately discussed the scope of applicability of sections and interpreted the provision of law considering all other pronouncements, answered all issues raised in the batch of petitions. Hence, as the Hon'ble Supreme Court has more elaborately discussed the Act and the provisions of law and enunciated the law, same is required to be followed. In view of the above, argument canvassed by learned Senior Advocate Mr. Syed is not sustainable and authority relied on the Page 33 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined case of Govindanaik G. Kalaghatigi (Supra) and the observations made in the bail orders which are tentative in nature and are discretionary orders, would not avail any assistance to the petitioner.
[11.9] Further, in the present case, offence is registered for the offence punishable under Sections 386, 387, 506(1) and 506(2) of the IPC. The said sections are for extortion and putting person and witnesses in fear or causing injury and the FIR clearly reveals that the petitioner - accused has committed the said offences. Further, the petitioner - accused has committed the offences in aid of section 120(B) of the IPC. It is needless to say that, to establish charge of criminal conspiracy under section 120 of the IPC, there must be an agreement, either expressed or implied. And for that, no proof of direct meeting or communication is needed. There must be active cooperation. In other words, joint evil intent is mandatory. When any act is done even though it is lawful but done by illegal means, it constitutes criminal conspiracy. The first ingredient of criminal conspiracy is agreement between two or more persons. This agreement is the crux of the offence and can be explicit or implicit, written or oral. The second essential component is the intention to commit an illegal act or a legal act by illegal means. The intent should directly related to the outcome that the conspirators plan to Page 34 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined achieve. The essential ingredients of criminal conspiracy are: (i) An agreement between two or more persons; (ii) The agreement must be related to doing or causing to be done either (a) an illegal act and (b) an act that is not illegal in itself but is done by illegal means; (iii) The agreement may be expressed or implied or partly expressed and partly implied; (iv) As soon as the agreement is made, the conspiracy arises, and the offence is committed and (v) the same offence is continued to be committed so long as the combination persists. It is needless to say that so far as the allegation of conspiracy is concerned, it is very difficult to collect any direct evidence of conspiracy. From the material collected or the evidence adduced on record, inference of conspiracy is required to be drawn.
[12.0] Further, in the case on hand, present petitioner -
accused is absconding and proceeding under Sections 70 and 82 of the CrPC are initiated and as per the scheme of GUJCTOC Act, there is a provision of bail even if we keep it aside even though as non-bailable warrant then proceedings under Section 82 of the CrPC are initiated and present petitioner has continuously remained absconding and not joined the investigation. Prima facie, it appears that petitioner is involved in offence and as discussed above, to invoke the provision of GUJCTOC Act, more than one charge-sheet is not required to be Page 35 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined filed against an individual but against the syndicate and it reveals from the allegation and investigation papers, it clearly emerges that present petitioner - accused is the member of crime syndicate and he is abetting accused No.1 in the offence.
[13.0] Though draft amendment dated 13.12.2023 is allowed by the coordinate Bench vide order dated 23.04.2024, same has not been carried out till date and no other grounds argued during the course of argument. Insofar, another ground that though petition is not amended, petition is filed under Section 482 of CrPC and subsequently sought to amend the petition under Article 227 of the Constitution of India but as the coordinate Bench has accepted the draft amendment moved by learned advocate in CR.MA No.1/2021 in CR.MA No.2049/2021 however, this Court considered the said issue qua issuance of proclamation under Section 82 of the CrPC. Under Article 227 of the Constitution, Court has only supervisory jurisdiction and perusing the order passed under Section 82 of the CrPC, prior to that the learned Special Judge has been pleased to issue warrant under Section 70 of the CrPC and while failing to comply with the said directions subsequently after following the due process and assigning the reasons, order was passed under Section 82 and proclamation came to be issued. As after registration of FIR, petitioner remained out of reach and investigation Page 36 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined is concluded qua 12 accused and trial is also going on and in progress qua other accused, in that event, to secure the presence of the petitioner, learned Special Judge has not committed any error in passing the order under Section 82 of the CrPC. One of the ground mentioned in the application is that, during the pendency, proclamation being issued and petitioner was pursuing the remedy under the law before the Court but said argument is also not sustainable in view of the law laid down by the Hon'ble Supreme Court in the case of Shrikant Upadhyay vs. State of Bihar and Savitaben vs. State of Gujarat reported in 2004 SCC OnLine (Guj)
435. Further, filing of petition cannot be said to be an appearance of petitioner - accused before the competent Court. Under Sections 82 and 83 of the CrPC, physical appearance of accused before the concerned Court is more important and accused cannot take shelter of any such pending proceedings in absence of any order / interim relief in his favor.
[13.1] Even otherwise, Section 20 of the GUJCTOC Act being applied with the modification and powers of anticipatory bail under Section 438 of the CrPC barred under Section 20(3) of the GUJCTOC Act. If the request is accepted, in that event also indirectly it amounts to granting of pre-arrest bail. Hence, no case is made out to quash the order passed under Section 82 of the CrPC Page 37 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined also.
[14.0] So far allegation of malafide is concerned, no specific averments or grounds raised in the petition and petitioner also failed to show malafide on the part of the authority and even, under Section 20(1) of the GUJCTOC Act, the offences under Section 3 are governed by presumptions and until and unless presumption is rebutted or contrary proved, then presumption is not that the accused had committed such offence and under Section 21(2), in prosecution of offence punishable under Section 3(2), if it is proved that the accused has rendered any financial assistance to a person having knowledge that such person is accused of or reasonable suspect of an offence of organized crime syndicate then presumption is also applicable under Section 3(2) of the GUJCTOC Act. Considering the aforesaid fact, no case is made out to quash and set aside the proceedings.
[15.0] The additional grounds dated 20.04.2021 have been submitted by one Mayankbhai Abhanghi son of present petitioner wherein it is mainly contended that to invoke the provisions of the GUJCTOC Act, more than one charge-sheet is required to be filed before the competent Court and as per Section 22 of the GUJCTOC Act, no information about the commission of offence of Page 38 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined organized crime under the GUJCTOC Act shall be recorded without the prior approval of the Police Officer not below the rank of Officer In Charge of the concerned District or the Commissioner of Police and without prior permission no Court can take cognizance of such offence. Herein, complaint is filed and investigation is carried out without any authority in breach of mandatory provision of Section 22 of the GUJCTOC Act as the Investigating Officer has filed an application under Section 70 of the CrPC before the learned Special Judge treating the petitioner has absconder though the petitioner has availed the remedy of quashing under Section 482 of the CrPC. Though aforesaid grounds are raised in the petition, no argument is canvassed or raised qua such grounds. It is pertinent to note that son of the present petitioner viz. Mayankkumar Rameshbhai Abhanghi has filed additional grounds in support of the petition subsequent to filing of the petition. It is needless to say that third party has no locus to file or raise any grievance in present proceeding. Hence, such additional grounds / grievances raised by third party are not required to be considered. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Sanjay Tiwari vs. State of Uttar Pradesh reported in (2021) 15 SCC 660.
Page 39 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined [16.0] Even otherwise, so far as applicability of approval and section 16 of the GUJCTOC Act qua recording of statement of accused is concerned, vires of the said provision is already challenged by the co-accused viz. Yashpalsinh Mahendrasinh Jadeja and others by way of filing Special Criminal Application No.2097 of 2021 by which is pending before the Division Bench of this Court for adjudication.
Herein, in the case at hand, intelligence is received by SP and Dy.S.P. and statements are recorded. Hence, question to consider at this stage that without authorization confession being recorded and investigation being carried out does not arise at this stage.
[17.0] It is also apposite to refer to the decision in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharshtra reported in 2021 SCC Online SC 315 wherein the Hon'ble Supreme Court has observed as under:
"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 petition 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 Page 40 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;"
It is also appropriate to refer to the decision of the Hon'ble Supreme Court in the case of State v. M. Maridoss reported in (2023) 4 SCC 338 wherein it is held that quashing of FIR exercising power under Section 482 of the CrPC without giving any reasonable time or opportunity to the Investigating agency to investigate into the allegations made in the FIR is not permissible.
CONCLUSION:
[18.0] In wake of aforesaid discussion, prima facie offence is made out against the petitioner - accused. Even, present case does not satisfy any of the parameters laid down by the Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335 warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of impugned FIR. Further, the Court will not be justified in embarking upon any enquiry as to the reliability of genuineness / otherwise of the allegations made in the complaint and also that, the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Page 41 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024 NEUTRAL CITATION R/CR.MA/2049/2021 CAV JUDGMENT DATED: 02/08/2024 undefined Court to act according to its whims and caprice.
[19.0] Hence, present petition being devoid of any merit is hereby dismissed. Rule is hereby discharged.
[20.0] It is made clear that the observations made herein are tentative in nature and only for the purpose of deciding present petition and shall not have any bearing on the merits of the pending proceedings.
[21.0] In view of dismissal of Criminal Misc. Application No.~2049 of 2021, Criminal Misc. Application No.1 of 2021 in Criminal Misc. Application No.2049 of 2021 also stands disposed of.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 42 of 42 Downloaded on : Sat Aug 03 00:02:09 IST 2024