Gujarat High Court
Shaktisinh Kumarpalsinh Zala vs State Of Gujarat on 30 April, 2025
NEUTRAL CITATION
R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025
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Reserved On : 24/04/2025
Pronounced On : 30/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12906 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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SHAKTISINH KUMARPALSINH ZALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SAURIN SHAH for MR NISARG H VYAS(9431) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside order dated 22.9.2021 passed by the learned 2 nd Addl. JMFC, Padra and further be pleased to quash and set aside entire proceedings of Criminal Case No.935 of 2019 arising from FIR being C.R.No.III - 79 of 2018 registered with Padra Police Station for the offences punishable under Sections 65(a)(e), 81, 98(2) of the Gujarat Prohibition Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.
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2. Brief facts of the case are as under:-
2.1 As per the FIR, it is alleged that the Complainant Shri K.H.Bhiola, Police Sub-Inspector, Padra Police Station had received a secret information that a vehicle bearing No. PB- 03-
AC-8260 is parked near Sangma Canal in a suspicious manner and therefore the complainant along with PSI Mr. S. A. Desai and Head Constable Mr. Rajnikant Bansibhai bearing Buckle No. 272 and Police Constable Mr. Ghanshyamsinh Raghuvirsinh bearing Buckle No. 480 reached Sangma Canal. It is further the case of the complainant that after called panchas, the complainant asked the name of the person who was sitting in the driver seat and he replied his name as Hakamsing Gangasing. It is further the case of the complainant that when he was asked as to what was there in the truck, he replied that cycle spare parts were there and on further questioning from where the goods were coming and where it is to be delivered, he informed that it was loaded by one Mr. Shanker of Batinda having mobile no. 8571007181 and the same was to be delivered at Gandhinagar. It is further averred in the FIR that when asked as to why he had brought the truck to Padra, he revealed that he was told by Mr. Shanker to call him after reaching near Vadodara and that the sons of Jeniben namely Suresh Amarsinh Mali & Thakor Amarsinh Mali would come and take the truck and after their work is completed, he had to take the truck to deliver the cycle spare parts.
3. Learned advocate Mr. Saurin Shah along with learned Page 2 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined advocate Mr. Nisarg Vyas appearing for the petitioner mainly submitted that the petitioner is serving as a police officer and is made a victim in the offence on the ground of departmental clash. He would further submit that the petitioner was falsely implicated in the offence though he was not named in the FIR, and having no evidence on record. He would further submit that the petitioner was arrested on 20nd February 2018 on the basis of the FIR, which is lodged on 8 th February 2018, and later on, remand was also sought. He would further submit that the petitioner is linked with the FIR on the ground that he was using sim card of a mobile number by placing the document of some other person. He would further submit that according to the case of the prosecution, said sim card obtained in name of other person was used by the petitioner to facilitate the main accused in transporting liquor. He would further submit that in the present case, the investigation is completed and charge sheet is filed. However, charge sheet is lacking necessary evidence on record, which sufficiently proved to link the petitioner with the main accused. There is no call details, no mobile data, no CDR, and lacking of such essential evidence on record demonstrates that no evidence is coming out against the petitioner to direct him to face the trial. He would further submit that the petitioner has preferred application in Criminal Case No. 835 of 2019 before the learned JMFC. However, the learned trial court declined to discharge the petitioner from accusation on the flimsy and superficial reason and therefore, since the petitioner kept the liberty open to prefer petition under section 482 of the Code in earlier order dated 3 rd September 2019 passed in Special Criminal Application No. 8317 of 2019, the petitioner preferred Page 3 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined present petition. In nutshell, learned advocate Mr. Shah submits that since there is no evidence on the record, even in the charge sheet, which indicates and links the petitioner with the act of other accused, and to establish that the petitioner by using particular mobile number obtained in name of some third party by using their papers, facilitating the main accused in transporting the Indian made foreign liquor described in the FIR, the petitioner should not be sent to face the trial. Lastly, learned advocate Mr. Saurin Shah also referred to the order dated 10th January 2022, passed by the Coordinate Bench to submit that a detailed order was passed by the Coordinate Bench while granting interim relief in terms of Para, 13(B), as such prima facie, insufficiency of the evidence was found to put the accused in trial, and therefore interim relief was granted in terms of Para 13(B) of the petition. Learned advocate Mr. Shah referring to three judges bench judgment of the Hon'ble Apex Court in case of Mohan Lal Vs. State of Panjab, AIR 2018 SC 3853 also to submit that Mr. KH Bihola, PSI is the first informant and is also the investigating officer in the matter, which is a violative of principle of fair investigation, and as such all subsequent proceedings carried in investigation are vitiated proceedings.
3.1 Upon such submissions, learned advocate Mr. Saurin Shah requests to allow this petition and to quash and set aside the questioned FIR.
4. Per contra, learned APP raised twofold contention. Firstly, he would submit that the petitioner has preferred Special Criminal Application No. 8317 of 2019 for quashing the FIR, Page 4 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined which came to be withdrawn by the petitioner with a liberty to file discharge application and with liberty to file appropriate proceedings, either under section 397 or under section 482 of the Code if discharge application is rejected. He would further submit that the petitioner has chosen to file discharge application and as such, availed the first liberty reserved. The petitioner has also reserved liberty to file revision application if discharge application is rejected. However, without availing remedy of filing revision application against rejection of the discharge application, the petitioner straightway has filed proceedings u/s 482 of the Code and therefore the proceeding is not maintainable without availing the efficacious remedy of filing revision. Secondly, learned APP would submit that the learned trial court has given reasoned order while declining to discharge the petitioner. The contention raised by the petitioner therefore, can be at the most treated to be a defence, and can be tasted during trial.
4.1 Thirdly, learned APP would submit that during the investigation, the investigating officer has got recorded statement of as many as four witnesses under section 164 of the Code, which prima has established that the petitioner, who is working in the police department, has got issued fresh sim card of mobile number 7350928064 belongs to Kamlesh Arvind Machhi, who has been arrested in other offence. He was using after said mobile number along with some other sim card. In other offence, said mobile was collected as muddamal along with sim card. The petitioner, taking advantage of this aspect, got issued new sim card of the aforesaid mobile number, which belongs to Kamlesh Page 5 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined Machhi and was using it to facilitate other accused for transporting liquor into the State of Gujarat. He would further submit that there are as many as four statements recorded by the learned JMFC, which indicates that the accused is involved in the offence and therefore, learned APP would submit that the contention raised by the learned advocate for the petitioner could not sustain at this juncture to quash the questioned FIR.
4.2 Referring to the charge sheet papers, learned APP would submit that no sooner it comes to the record that the petitioner being police officer is involved in the alleged offence, the investigation from Mr. Bihola has been transferred and taken over by some other police officers, who are arraigned as witnesses at serial Nos.19 and 21 in the charge sheet and which indicates that major material part of the investigation has been carried out by two different police officers, and therefore he submits that the contention by the petitioner that the first informant and the investigating officer are one and the same vitiates the investigation does not survive.
4.3 Upon such submissions, learned APP prays to dismiss the petition.
5. I have heard learned advocates for both the sites and have also perused the record.
6. At the outset, let refer the order dated 3.9.2019 passed by this Court in Special Criminal Application No.8317 of 2019, which reads as under:-
Page 6 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined "Learned advocate for the petitioner seeks permission to withdraw present petition with a liberty to file discharge application and also to file appropriate proceedings either u/s 397 or 482 of the Code of Criminal Procedure, 1973 before appropriate competent Court, after remedy to file discharge application is availed.
Permission granted. The petition stands disposed of as withdrawn with above liberty."
It is clarified that this Court has not examined the merits of the present petition."
7. What could be noticed from the aforesaid order that the petitioner, who has filed the Special Criminal Application under section 482 of the Code to quash the questioned FIR, had withdrawn with a liberty to file discharge application and also to file appropriate proceedings either under section 397 or 482 of the Code before the appropriate court after remedy to file discharge application is availed. The discharge application was unsuccessfully filed by the petitioner. The ordinary course to challenge the order for discharge is revision under section 397 of the Code to be filed before learned Sessions Court. However, the petitioner for no reason having availed the first remedy of filing discharge application did not file revisional proceedings. The Coordinate Bench of this court in its order dated 10th January 2022 decided to consider the case on merit, though alternative remedy is available. Therefore, without considering the issue further, let the matter is examined on merit.
8. It is the case of the petitioner that charge sheet is lacking sufficient material to link the petitioner with the principal allegation levelled in the FIR. It is further the case of the Page 7 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined petitioner that mobile number, which is alleged to have been used by the petitioner, does not belong to the petitioner and at the same time, there is no evidence on record, which indicates that through that mobile number, the petitioner was talking with other accused and facilitating to transport Indian made foreign liquor. There are as many as four statements recorded under section 164 of the Code by learned JMFC. One is of witness, Kamlesh Machhi, whose statement was recorded on dated 18th, June 2018. In his statement, he stated that he was using mobile being a slot of two sim card and was using both the sim card. The said mobile was recovered as Muddamal in some other offence and it was lying with the custody of the petitioner. The petitioner has told him to purchase new sim card, and therefore he has purchased new sim card of mobile number 9714726007. He has also stated that he has not purchased new sim card of second mobile number, however, did not close the operation of said second sim card. He has informed that he has put his thumb impression upon the form, which is filled for purchase of second sim card for the second mobile used by the petitioner. Thus, he has unequivocally stated that he came to know that his second mobile was used by the petitioner.
8.1 Another statement is dated 18th June 2018 of witness Navdipsingh Kulvindersingh Dhotra. He has stated that he has given the photocopy of election card and passport of his father to purchase the sim card to Mr. Dilip Sharma.
8.2 Another statement belongs to Kulvindersingh Dhotra. He has also stated that he is having mobile No.7778044903. He Page 8 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined has further stated that for obtaining sim card, someone else filled up a form duly signed and attached his election card. He has not made any signature on the form and someone else produced some documentary evidence and also made his signature to obtain the sim card for that particular number.
8.3 Lastly, it was a statement of Wajid Ahmed Sheikh. He has also stated that he has only handed over sim card of mobile number 7228963650 to the petitioner for using it. He is the person who is involved in some other offence under the Prohibition Act. He has also stated that the petitioner is involved in the offence of Prohibition Act.
9. All these statements on record being a part of the charge sheet prima facie established that the petitioner is engaged in abetting other accused to commit the offence. It also appears that the petitioner being an officer in the police department by using different sim card and mobile number belonging to third party and obtained on document of third party, facilitated other accused to transport liquor within the state of Gujarat. The correctness of the statement recorded either under section 161 or 164 of the Code cannot be examined in a proceeding under section 482 of the Code. A full fledged trial is needed where the contention raised by the petitioner can be testified in background of the statements of the witnesses. The contention that there is no evidence available at this juncture with the police department to link the petitioner with the alleged offence turned negative, more particularly in view of the statements of witnesses recorded under section 164 of the Code. These Page 9 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined statements recorded under section 164 of the Code prima facie connects the petitioner with the alleged offence.
10. As far as second contention of the petitioner that Mr. K. H. Bihola is the first informant as well as the investigating officer, vitiated the principle of fair investigation and subsequently converted into trial cannot be accepted in view of the judgment of the Hon'ble Apex Court in case of Mukesh Singh Vs. State (Narcotic Branch of Delhi), (2020) 10 SCC 120, whereby, it was held by the Constitutional Bench of the Hon'ble Apex Court that investigation by officer, who himself is first informant / complainant in the case is not barred under the Code of Criminal Procedure, 1973. Hence, in a case where the informant himself is the investigator by itself cannot be said that the investigation is vitiated on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case. Thus the contention that the first informant and the investigating officer is one and the same does not survive since it is a question of facts which can be adjudged during the trial and thus, it cannot be accepted at this juncture.
11. Other contention canvassed by learned advocate Mr. Shah is that the Court should not believe the charge sheet papers at this juncture and exercise inherent power to scuttle the charge sheet papers on appreciation of the aspect that sufficient evidence is not available.
12. In case of Arun Shankar Shukla Vs. State of UP, AIR 1999 Page 10 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined SC 2554, the Hon'ble Apex Court held as under:-
"It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code."
13. Reference is also made to the case of State Of Punjab Versus Kasturi Lal, 2004 (12) SCC 195, wherein the Hon'ble Apex Court observed as under:-
"Exercise of power under section 482 of the Code in a case of this nanure is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) 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. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise, Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper Page 11 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justinae to do real and substantial justice for the administration of which alone Courts exist."
14. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise, Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material, of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
15. It is also to be noted that while exercising powers under section of the Code, the court does not function as a court of Page 12 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025 NEUTRAL CITATION R/SCR.A/12906/2021 CAV JUDGMENT DATED: 30/04/2025 undefined appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests, specifically laid down in section 482 of the Code i.e. "abuse of process of law" or "to secure the ends of justice"
16. In view of above, this Court finds no case to scuttle the proceedings on the ground that there is insufficiency of evidence. Apart from other evidence on record, the statements of four witnesses recorded u/s 164 of the Code prima facie would put sufficient accusation upon the petitioner to send him in trial.
17. For the foregoing reasons, since no case is made out to quash the FIR and subsequently charge sheet, present petition fails and stands dismissed. Notice discharged. Interim relief, if any, granted earlier stands vacated.
(J. C. DOSHI,J) SHEKHAR P. BARVE FURTHER ORDER After pronouncement of the judgment, learned advocate for the petitioner requests to suspend the judgment for a period of four weeks so as to enable the petitioner to challenge the same before higher forum. Considering the facts and circumstances of the case, the request is rejected.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 13 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 30 2025 Downloaded on : Thu May 01 02:14:01 IST 2025