Gujarat High Court
Rameshchandra Keshavlal Sheth vs State Of Gujarat & 2 on 19 December, 2014
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/9011/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9011 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAMESHCHANDRA KESHAVLAL SHETH....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MR KP RAVAL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 19/12/2014
ORAL JUDGMENT
1. The present application under Section 482 of the Code of Criminal Procedure, 1973 is filed by the applicant for quashing and setting aside the proceedings of M. Case No. 48 of 2003 registered Page 1 of 12 R/CR.MA/9011/2010 JUDGMENT at Gandhidham Police Station qua him.
2. Brief facts leading to filing of the present application are as under:
2.1. The applicant herein is the original accused No.7 of FIR being M. Case No. 48 of 2003 registered with Gandhidham Police Station.
That the said FIR is filed by present respondent No.2 as the power of attorney holder of present respondent No.3 under Sections 406, 408, 409, 465, 471, 120B and 34 of the Indian Penal Code. The complainant has stated in the FIR that she had purchased the office premises constructed by one Rajdeep Co. Op. Housing Society Ltd., PartII from one Rajendra K. Agrawal of Adipur. The original accused Nos. 1, 2 and 3 were the office bearers of the said Co. Op. Society. It is further the case of the complainant that entire complex of said Rajdeep Co. Op. Housing Society Ltd. had collapsed at the time of earthquake on 26.01.2001. The complainant also stated that at the place of the old building one new building was constructed. The original accused Nos. 1, 2 and 3 had undertaken the task of obtaining financial assistance for the members of newly registered Gokul Co. Op. Housing Society Ltd. and the concerned authority granted the permission after Page 2 of 12 R/CR.MA/9011/2010 JUDGMENT approving the plan. Thereafter, the building was constructed. It is alleged that all the accused committed the alleged offence in furtherance of the common intention by which they created new society in the name of Gokul Park Co. Op. Housing Society Ltd. in the year 2002. The new members were enrolled and the allegations were levelled against the accused Satubhai Agrawal i.e. Satyanarayan Atmaram Agrawal - original accused No.5. It is alleged that the complainant contacted said Satubhai Agrawal in respect of the office premises. At that time, the said Satubhai Agrawal gave her promise that the new office will be allotted to her. When it was not done by Satyanarayan Agrawal, the complainant issued a notice to the office bearers of Gokul Park Co. Op. Housing Society Ltd.
2.2. It is alleged that when the Satyanarayan Agrawal and the other accused persons have not handed over the possession of the office premises in the newly constructed building, she initially approached before the Gandhidham City Police Station. But, her FIR was not registered and therefore she filed a private complaint before the learned Judicial Magistrate First Class at Gandhidham Kutch. That the learned Judicial Magistrate First Class, Page 3 of 12 R/CR.MA/9011/2010 JUDGMENT Gandhidham, passed an order dated 29.10.2003 directing the Gandhidham Police Station to carry out the investigation under Section 156(3) of Code of Criminal Procedure, 1973. On the basis of the said order, the FIR being M. Case No.48 of 2003 came to be registered with Gandhidham City Police Station. 2.3. After the registration of the aforesaid FIR, the concerned Investigating Officer carried out the investigation and submitted final report on 17.09.2005. The said report is not on record. However, there is reference to the said report in the report dated 05.01.2009 submitted by the Investigating Officer of A Division Police Station, Gandhidham. By the said report dated 05.01.2009, the said officer requested the Superintendent of Police, Kutch at Bhuj to accept 'A' summary. In the said report which is produced on record with this application, it is specifically observed by the concerned officer that the complainant is not aware about the other accused and the witnesses referred in the complaint except Suresh Agrawal, Shatyanarayan Agrawal, one Mr. Pandey and Rajendra Kanayalal Agrawal. Out of two accused Suresh Agrawal and Shatyanarayan Agrawal, Suresh Agrawal expired and when the statement of witness Rajendra Kanayalal Agrawal was recorded by Page 4 of 12 R/CR.MA/9011/2010 JUDGMENT the said officer, he stated that he does not know the complainant or the other witnesses referred to in the FIR. The complainant had not produced other evidence before the Investigating Officer and therefore in the said report it was stated by the Investigating Officer that he has not arrested the accused. The applicant is relying upon the said report.
2.4. Though the aforesaid report was submitted by the Investigating Officer before the Superintendent of Police, the applicant was called by the LCB Police, thereupon, the applicant appeared before the LCB police. The applicant, thereafter, preferred the present application under Section 482 of the Code of Criminal Procedure, 1973, for quashing and setting aside the FIR qua him.
3. Heard learned advocate Mr. A. D. Shah for the applicant and Mr. K. P. Raval, learned Additional Public Prosecutor. Though the notice was served to respondent No.2 as power of attorney of respondent No.3 - original complainant, he did not appear before this Court and thereafter the Rule also came to be issued by this Court on 14.09.2010. Though the notice of rule is also served to respondent No.2, he has chosen not to appear before this Court and Page 5 of 12 R/CR.MA/9011/2010 JUDGMENT therefore nobody is present before this Court on behalf of the original complainant.
4. Mr. Shah, learned advocate for the applicant mainly submitted that the impugned FIR is nothing but a gross abuse of process of law, so far as the applicant is concerned. He further submitted that the concerned Investigating Officer submitted the final report in the year 2005 and thereafter in 2009 also. The Investigating Officer Shri Jadeja filed a detailed report whereby he has submitted before the Superintendent of Police that during the investigation no material is found against the accused and therefore he submitted 'A' Summary Report. It is also submitted that though 'A' Summary Report was submitted by the concerned Investigating Officer, surprisingly, the LCB has started further investigation for which the applicant was called for and therefore when there is no evidence against the applicant during the investigation carried out by the concerned Investigating Officer, there is no need of further investigation by the LCB. Hence, it is nothing but an abuse of process of the Court and hence the FIR be quashed qua the applicant. It is further submitted that in the entire complaint no role is attributed to the present applicant after collapse of the Page 6 of 12 R/CR.MA/9011/2010 JUDGMENT complex in the earthquake on 26.01.2001. He further submitted that even assuming without admitting that the promise was given by the new office bearers of the Gokul Park Co. Op. Housing Society Ltd., who had constructed the new complex, the applicant was not the office bearer of the said Co. Op. Housing Society Ltd. and it is not the case of the complainant that the applicant had given any promise to the complainant and therefore the ingredients of alleged offence are not made out so far as the applicant is concerned. Thus, the learned advocate submitted that the ingredients of the alleged offences are not made out against the applicant in the impugned FIR nor there is any material found against the applicant during the investigation carried out by the Investigating Officer of A Division Police Station, Gandhidham, handing over of further investigation to the LCB is nothing but gross abuse of process of the Court, and therefore, in the interest of justice, this Court may exercise the powers under Section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR qua the applicant.
5. Learned Additional Public Prosecutor Shri K. P. Raval mainly submitted that the applicant is joined as an accused No.7 in the FIR Page 7 of 12 R/CR.MA/9011/2010 JUDGMENT by the complainant. There is specific averments in the complaint that applicant No.7 is the original builder who had constructed the building which was collapsed during the earthquake on 26.01.2001 and therefore specific averments/allegations are levelled against the applicant in the FIR. He further submitted that the A Summary Report submitted by the Investigating Officer of A Division Police Station, Gandhidham to Superintendent of Police, Kutch at Bhuj, was not forwarded to the Magistrate and therefore nothing is on the record that the A Summary Report was accepted by the learned Magistrate. He further submitted that the higher officer thought it fit to transfer the investigation to LCB and therefore when the LCB has called the applicant for further investigation, he should cooperate with the LCB in the investigation and therefore this Court may not exercise the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973.
6. I have heard the arguments canvassed by both the parties. It is observed herein above that though the complainant is served, he has chosen not to remain present before this Court and therefore no assistance is rendered by the complainant. The reasonable opportunity was given to the learned APP to produce the Page 8 of 12 R/CR.MA/9011/2010 JUDGMENT investigation papers. However, the papers of investigation are not produced before this Court and therefore on the basis of the documents which are produced before this Court, the matter is taken up for final hearing. If the FIR filed by the complainant is carefully seen, the only allegation levelled against the applicant, who is accused No.7 in the FIR, is that he had constructed the building which was collapsed during the earthquake. He had constructed the said building after taking permission from Gandhidham Development Authority and after sanctioning of the plans by the concerned authority. The only allegation against the present applicant is that the applicant had not constructed the building as per the plan. However, the grievance of the complainant in the FIR is that after the said building was collapsed, the other accused persons viz. one Satubhai Agrawal and other accused formed Gokul Park Co.Op. Housing Society Ltd. in the year 2002 and share certificates were also issued. On the very same place new building was constructed. It is alleged in the FIR against Satubhai Agrawal that he is the main accused, who had given the promise to the complainant that office premises would be alloted to her in the new premises and after the construction of the new building when the complainant contacted said Satubhai Agrawal, Page 9 of 12 R/CR.MA/9011/2010 JUDGMENT he had not given any satisfactory reply to her nor any premises is allotted to her and therefore she has filed this FIR on 04.11.2003. Thus, from reading the contents and the allegations made in the FIR, it is clear that FIR is not filed for poor construction of the building, which was collapsed during the earthquake on 26.01.2001, however, the grievance of the complainant is that Satubhai Agrawal and other accused, who are the office bearers of newly constructed Gokul Park Co. Op. Housing Society Ltd., have not allotted the office premises to the complainant in newly constructed building as per the promise given by the said accused Satubhai Agrawal. Thus, prima facie, it is clear that the present applicant is not in picture at the time of construction of new building or even after construction of new building. It is not the case of the complainant that the applicant has given any promise to her that office in newly constructed building would be allotted to her and therefore ingredients of the alleged offence punishable under Sections 420, 406, 408, 409, 465, 467, 471 are not at all attracted qua the applicant.
7. The concerned Investigating Officer submitted the final report on 17.09.2005 and thereafter A Summary is also sought for by the Page 10 of 12 R/CR.MA/9011/2010 JUDGMENT Investigating Officer on 05/01/2009. If the said report is carefully seen, it is revealed that after the investigation by the said officer, nothing adverse is found against the applicant or even against the other accused. Thus, from the record, it appears that two different officers have investigated the offences at two different occasions and both the officers have filed the report and both the officers have not arrested the accused persons in absence of any adverse material against the accused. In view of these peculiar facts and circumstances of the present case, when nothing adverse is found during two investigations carried out by two different Investigating Officers, if the investigation is carried out by the LCB, it is nothing but an abuse of process of the Court and citizen cannot be subjected to such type of investigation when two investigation reports reveal nothing adverse against the applicant. Even on merits also, as observed hereinabove, no allegations are levelled against the applicant so far as the alleged offences are concerned. Therefore, from the material placed on record and while reading the FIR, it can be said that the impugned FIR is nothing but gross abuse of process of the Court so far as the applicant is concerned and therefore, this Court, in exercise of powers under Section 482 of the Code of Criminal Procedure, 1973, is inclined to quash the Page 11 of 12 R/CR.MA/9011/2010 JUDGMENT FIR qua the applicant. Hence, the impugned FIR is quashed qua the applicant. Rule is made absolute. No order as to cost.
(VIPUL M. PANCHOLI, J.) Jani Page 12 of 12