Gujarat High Court
Jignesh @ Jigo Jado Jagdishbhai ... vs State Of Gujarat on 17 September, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/11508/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 11508 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
=======================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order NO
made thereunder ?
=======================================================
JIGNESH @ JIGO JADO JAGDISHBHAI JARIVALA
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MR GAJENDRA P BAGHEL(2968) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR RONAK RAVAL APP(2) for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 17/09/2020
ORAL JUDGMENT
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the FIR being C.R.No.11210015200023 of 2020 registered with D.C.B. Police Station, Surat for the offence punishable under Sections 65(a), 65(e) and 81 of the Prohibition Act.
Page 1 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021R/CR.MA/11508/2020 JUDGMENT
2. Heard learned advocate Mr. Gajendra Baghel for the applicant and learned APP Mr. Ronak Raval for the respondent - State.
3. It is mainly contended by learned advocate Mr. Baghel appearing for the applicant that though applicant was not present at the place of incident, on the basis of the statement of co-accused he has been implicated in the FIR in question and shown as original accused No.3. It is submitted that though there is no material, applicant has been implicated on the basis of the statement of the co-accused. It is also submitted that statement of the co-accused is not admissible under Section 25 of the Evidence Act and therefore the FIR in question be quashed and set aside. In support of his submission, learned advocate has placed reliance upon the interim orders passed by the Coordinate Bench of this Court in similar matters. It is also contended that this Court has also quashed and set aside the FIR in Special Criminal Application No.367 of 2015 vide order dated 25.02.2015 and therefore the impugned FIR be quashed and set aside.
4. On the other hand, learned APP Mr. Raval submitted that the applicant has filed this application at the stage when the charge-sheet is not filed and investigation is still going on. It is further submitted that statement of the co-accused can be considered as a clue for the purpose of investigation and therefore till the charge-sheet is filed, it would not be proper on the part of the applicant to contend Page 2 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021 R/CR.MA/11508/2020 JUDGMENT that there is no material with the investigating agency. It is also submitted that interim orders passed by the Coordinate Bench in other cases may not be considered by this Court.
5. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the applicant is shown as accused No.3 in the FIR. Thus, when the FIR was registered, his name was disclosed by the co-accused. It is not in dispute that till date charge-sheet is not filed against the applicant and therefore it is not open for the applicant to contend that there is no material against him except the statement of the co- accused.
6. At this stage, it is relevant to note that this Court has observed in the case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:
"12.............................. It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation....................................................................."
7. In another case of Dolatram Tekchand Harjani v.
Page 3 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021R/CR.MA/11508/2020 JUDGMENT State of Gujarat, reported in 2013 (3) GLR 2133, this Court has considered similar contention and thereafter observed in para 9.10 to 9.13 as under:
"9.10 The said submission gives rise to an issue viz. does it mean that on the basis of, or in light of, a statement of co-accused even investigation cannot be initiated. On this count, it comes out that while raising the said contention, it is conveniently overlooked that such position or preposition does not mean that statement by a co-accused cannot act as or cannot be even treated as a piece of information or a clue to initiate and conduct inquiry/investigation so as to find out whether there is any independent, cogent, reliable and satisfactory material/evidence which may support, justify and provide cause for further investigation or a charge-sheet and a trial.
9.11 In present case, name of the petitioner is disclosed / mentioned in a statement of a co-accused with reference to offence under Sections 307 and 120B of IPC and Sections 25(1)A and (b) and 27(1) of Arms Act and therefore, police has commenced investigation.
9.12 Against such investigation process, the petitioner has taken out present petition under Section 482 of the Code and prayed that the investigation process may be stopped and it may be quashed. In support of the said request, the aforesaid contention is raised.
9.13 The position/preposition (raised in light of the provision under Section 25 of the Indian Evidence Act) that a statement by a co-accused is not admissible in evidence and therefore cannot be relied on, cannot be construed to mean that such statement cannot be even considered or treated as a clue or a piece of information to initiate and conduct Page 4 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021 R/CR.MA/11508/2020 JUDGMENT inquiry/investigation or to direct the investigation/inquiry in a particular direction. Such a statement can be treated as a clue or piece of information (and not evidence ) for initiating and conducting investigation/inquiry so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide reason for continuing inquiry/investigation for initiating further investigation. At the stage when the investigation has commenced or the process is going on any occasion or any question of treating or considering such a statement as evidence does not arise and that, therefore, it would not be proper and just to terminate, i.e. to direct the investigation officer to close the investigation."
8. Further, in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav, reported in (2004) 7 SCC 528, the Hon'ble Supreme Court has observed as under:
"The next argument of the learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the Page 5 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021 R/CR.MA/11508/2020 JUDGMENT confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."
9. Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:
".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused....."
10. From the aforesaid decisions, it would be clear that a statement of co-accused can be considered or treated as a clue or a piece of information to initiate and conduct inquiry/investigation or to direct the investigation/inquiry in a particular direction so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide reason for continuing inquiry/investigation for initiating further investigation. At the stage when the investigation has commenced or the process is going on any occasion or any question of treating or considering such a statement as evidence does not arise and therefore it would not be proper and just to terminate, i.e. to direct the investigating officer to close the Page 6 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021 R/CR.MA/11508/2020 JUDGMENT investigation. It is also required to be noted that the admissibility or otherwise of the confessional statement can be examined at the stage of trial and not at the stage of investigation. Thus, Section 25 of the Evidence Act would come into play not at the stage of inquiry/investigation but at the stage of trial.
11. In the present case, it is not in dispute that applicant is named in the FIR as accused No.3 and the investigation is not concluded against him and therefore this Court is of the view that statement of the co-accused can be considered as a clue or a piece of information for the purpose of investigation and the FIR in question cannot be quashed only on the ground that applicant is implicated on the basis of the statement of the co-accused. Further, Section 25 of the Evidence Act would not be applicable at this stage as the investigation is not concluded. Thus, the submission canvassed by learned advocate for the applicant is misconceived.
12. It is surprising that the learned advocate for the applicant has placed reliance upon the interim orders passed by the Coordinate Bench of this Court in similar type of matters. It is well settled that interim orders cannot be considered as a precedent and therefore the said submission canvassed by learned advocate Mr. Baghel for the applicant is also misconceived.
13. Learned advocate Mr. Baghel has placed reliance upon the order dated 25.02.2015 passed in Special Criminal Application No.367 of 2015 where this Court has quashed the FIR. Copy of the said order is placed Page 7 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021 R/CR.MA/11508/2020 JUDGMENT on record at page 29. If the said order is carefully examined, it is clear that this Court has quashed the FIR against the concerned applicant - accused as there was no material in the papers of the charge-sheet against the concerned applicant - accused. Thus, admittedly this Court has exercised powers under Section 482 of the Code in favour of the concerned accused after filing of the charge-sheet and therefore the said order would also not be helpful to the applicant in the facts of the present case.
14. In view of the aforesaid facts and circumstances of the present case and in view of the aforesaid discussion, this Court is not inclined to exercise the powers under Section 482 of the Code. Application is, accordingly, dismissed.
15. However, liberty is reserved to the applicant to file fresh application if the charge-sheet is filed against him and if there is no material in the papers of the charge-sheet against him.
Sd/-
(VIPUL M. PANCHOLI, J.) SRILATHA Page 8 of 8 Downloaded on : Thu Feb 25 18:12:52 IST 2021