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2015 DIGILAW 1251 (GUJ)

Hemrajbhai Ramjibhai Padaliya v. State of Gujarat

2015-12-04

J.B.PARDIWALA

body2015
ORDER : J.B. Pardiwala, J. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed for the following reliefs:- "A. Your Lordships may be pleased to quash and set aside the CR. No. I-241 of 2003 of the file of Bharuch City A Division Police Station and Charge-sheet thereof for the offences punishable under Section 307, 506(2), 120(b), 114 of the Indian Penal Code and under Section 135 of Bombay Police Act qua the present petitioner. B. Pending admission and disposal of the petition, Your Lordship may be further pleased to kindly stay the further proceedings of the CR. No. I-241 of 2003 of the file of Bharuch City A Division Police Station and charge-sheet thereof for the offence punishable under section 307, 506(2), 120(b), 114 of the Indian Penal Code and under section 135 of Bombay Police Act qua the present petitioner." 2. On 31st August 2015, the following order was passed:- "It appears that in one Special Criminal Application No.46 of 2004 filed by the petitioner, a learned Single Judge of this Court, vide order dated 7th July 2004, observed as under : By filing this petition under Article 226 of the Constitution, the petitioner has prayed to issue appropriate writ, order or direction directing respondent Nos.2 and 3 to investigate and ascertain the genuineness of the averments made by the petitioner in the representation dated 6.11.2003 and also to direct respondent No.2 to submit an appropriate report as contemplated under section 169 of the Code of Criminal Procedure after ascertaining the genuineness and bonafides of the averments made by the petitioner in the representation dated 6.11.2003. 2. At the time of hearing of this petition, Mr. VM Pancholi, learned APP appears on behalf of respondent No.1 - State and upon instructions received from Mr. PJ Sarang, Police Inspector, Bharuch City 'A' Division, Bharuch who is also personally present in Court, states that the officer of Bharuch City 'A' Division police station has examined, investigated and ascertained about the genuineness of the averments made by the petitioner in the representation dated 6.11.2003 and found that the averments made in the representation are genuine and necessary report shall be sent to the concerned Magistrate on completion and conclusion of full investigation into the crime registered vide CR No.I-241/2003 with Bharuch City 'A' Division police station. 3. 3. In view of the aforesaid statement made by Mr. Pancholi, learned APP, Mr. SA Shah, learned advocate of the petitioner, states that the grievance ventilated in the petition now does not survive and hence the petition may be disposed of as not pressed. Mr. Pancholi, learned APP has no objection if the petition is disposed of as not pressed. Hence, the petition stands disposed of as not pressed. Notice is discharged. Direct service is permitted. Let notice be issued to the respondents, returnable on 30th September 2015. Mrs.Punani, the learned APP waives service of notice for and on behalf of the respondent no.1 State of Gujarat. The respondent no.2 be served directly through the Investigating Officer of the concerned Police Station. Let there be an ad-interim order in terms of paragraph 23(B) qua the applicant. Direct service is permitted." 3. It appears from the materials on record that inadvertently without considering the papers of investigation, the applicant herein has also been arraigned as an accused in the charge-sheet, for the offence which alleged to have occurred on 4th November, 2003. From day one, the case of the applicant is that on that particular day he was at Mumbai in the Office of the Adani Corporation as he has some business relationship with the said Company. The alibi pleaded by the applicant was thoroughly investigated by the Police. Ultimately, at the end of the investigation, it was confirmed that on 4th November, 2003 the applicant was at Mumbai, whereas, the incident occurred at Bharuch. 4. Mr. J.K. Shah, the learned APP has made available for my perusal various documents evidencing that on the date of the incident, the applicant was at Mumbai. In such circumstances, the then Public Prosecutor appearing in the matter at the relevant point of time had made a statement that an appropriate report in that regard would be filed. However, inadvertently with the change of the Investigating Officer the charge-sheet came to be filed against the applicant. Mr. R.D. Oza, the P.I. of the A Division Bharuch Police Station is present with Mr. M.K. Modi, the Head Constable of the very same Police Station, who is very much conversant with the matter. A bunch of papers have been placed which contains various statements of the witnesses including the Officer of the Adani Corporation. 5. Mr. R.D. Oza, the P.I. of the A Division Bharuch Police Station is present with Mr. M.K. Modi, the Head Constable of the very same Police Station, who is very much conversant with the matter. A bunch of papers have been placed which contains various statements of the witnesses including the Officer of the Adani Corporation. 5. The Police Officers are also convinced about the alibi pleaded by the applicant. In such circumstances, the prosecution against the applicant herein deserves to be quashed. 6. It may not be out of place to state that earlier one petition was preferred by the applicant with respect to the very same subject matter but the same was dismissed for default. 7. In such circumstances, the further proceedings of the Sessions Case No.25 of 2007 pending in the Court of learned Sessions Judge, Bharuch are hereby ordered to be quashed so far as the applicant is concerned. The Sessions Case shall proceed further in accordance with law so far as the other accused are concerned. Rule is made absolute. Direct service is permitted. Ordered Accordingly.