Dipakbhai Jagdishchandra Patel v. State of Gujarat
2017-05-05
B.N.KARIA
body2017
DigiLaw.ai
JUDGMENT : B.N. Karia, J. 1. The applicant-accused No. 4 has preferred this application under Section 482 of the Code of Criminal Procedure {"CrPC" for brevity} for quashing and setting aside the complaint, being C.R. No. I-225/1996 registered with Navrangpura Police Station, District: Ahmedabad for the offence punishable under Sections 489(B) & (C) and 114 of the Indian Penal Code as well as order passed below discharge application Exhibit-8 by the City Civil & Sessions Judge, Court No. 16, Ahmedabad on 19th June, 2009 in Sessions Case No. 204/2008. 2. The facts leading to filing of the present application are as under: 2.1 That, the complainant received information that one Mohammad Rafik Abdul Hamid Kagde (accused No. 1) and Salim Abdul Hamid (accused No. 2) were selling counterfeit currency notes at concessional rate, therefore, the complainant went at the place with panchas and found three persons dealing with money transactions and on making search of those persons, counterfeit currency [88 notes] of different denominations of Saudi Arabian Riyal were found. While interrogating, the accused No. 1-Mohammad Rafik Abdul Hamid Kagde stated that he had brought counterfeit currency notes from Mumbai and kept at the place of the applicant and after taking such currency notes from the place of applicant, it was handed to the accused No. 2 and 3 and thereafter, such notes came to be seized and accused were arrested and impugned FIR has been filed by the complainant-respondent No. 2. 2.2 After investigation, charge-sheet came to be filed and case was committed to the Sessions Court and registered as Sessions Case No. 204 of 2008. That, during pendency of the Sessions case, the applicant filed an application Exhibit-8 with a request to discharge him from the charges levelled against him. However, vide order dated 19th June, 2009, learned City Civil & Sessions Judge, Court No. 16, Ahmedabad rejected the said application, and therefore, the applicant has filed present application with a request to quash the impugned complaint and order dated 19th June, 2009. 2.3 While admitting the present Application on 8th September, 2009, this Court stayed further proceedings of Sessions Case No. 204 of 2008 pending in the court of the learned City Civil & Sessions Judge, Court No. 16, Ahmedabad, qua the applicant. 3. Heard learned advocate Mr. Mrugen K. Purohit appearing on behalf of the applicant and learned APP Mr.
2.3 While admitting the present Application on 8th September, 2009, this Court stayed further proceedings of Sessions Case No. 204 of 2008 pending in the court of the learned City Civil & Sessions Judge, Court No. 16, Ahmedabad, qua the applicant. 3. Heard learned advocate Mr. Mrugen K. Purohit appearing on behalf of the applicant and learned APP Mr. K.P. Raval appearing on behalf of the respondent No. 1-State. 4. Learned advocate Mr. Mrugen K. Purohit appearing on behalf of the applicant submitted that on a mere version of co-accused that fake currency notes are available at the residence of the applicant, he has been falsely arraigned as an accused. That, the learned Court below ought to have considered that the case against the applicant herein is based only on a statement of the co-accused. While perusing the entire charge-sheet papers, it does not reveal any semblance of evidence, or any material to involve the applicant in the alleged crime. Further, refusal to discharge the applicant is failure of jurisdiction on the part of the learned trial court. That, even if uncontroverted allegations made in the FIR are taken on its face value, there is no direct evidence against the applicant, and therefore also, complaint, charge-sheet as well as criminal proceedings initiated against the applicant in the lower court are nothing, but abuse of process of the Court. It is well settled position of law that the statement of co-accused is not an evidence in the eye of law, when it is not forming part of the charge-sheet papers. Now, where the statement of co-accused does not form part of charge-sheet papers, it cannot be considered as an evidence against the present applicant. On completion of the investigation, the police has not been able to find out any evidence worth the name to connect the applicant with the crime alleged. There is no other evidence also connecting the applicant with the offence, as alleged in the FIR. In support of his arguments, learned advocate Mr. Purohit appearing on behalf of the applicant placed reliance upon various decisions on the similar set of facts. These are: "(i) State of Orissa v. Debendra Nath Padhi, reported in AIR 2005(6) SCC 359. (ii) Order passed in Criminal Misc. Application No. 5483 & 5496 of 2008 by this Court on 10.10.2000. (iii) Order passed in Criminal Misc.
Purohit appearing on behalf of the applicant placed reliance upon various decisions on the similar set of facts. These are: "(i) State of Orissa v. Debendra Nath Padhi, reported in AIR 2005(6) SCC 359. (ii) Order passed in Criminal Misc. Application No. 5483 & 5496 of 2008 by this Court on 10.10.2000. (iii) Order passed in Criminal Misc. Application No. 11886 of 2007 by this Court on 28.04.2008. (iv) Order passed in Criminal Misc. Application No. 7323 of 2001 by this Court on 18.01.2002. (v) Order passed in Criminal Misc. Application No. 4449 of 2008 by this Court on 01.03.2013." Lastly, it was requested by learned advocate to quash and set aside the impugned complaint. 5. Per contra, learned APP Mr. KP Raval appearing on behalf of the respondent No. 1 has strongly opposed the petition urging that in such a grievous offence, this Court ought not to exercise inherent powers vested under Section 482 CrPC, as the offence alleged is against the interest of society. After completion of the investigation by the Investigating Agency, police has filed the charge sheet. A Sessions Case is pending before the City Civil and Sessions Court at Ahmedabad. It is further submitted that fake currency notes were found at the residence of the applicant, which were seized by the Investigating Agency. That, the discharge application moved by the applicant came to be dismissed by the Court below by holding that a prima facie case against the present applicant is made out. While looking at the charges levelled against the applicant, particular the averments made in the complaint, it cannot be said that the present applicant is innocent, or not involved in the offence alleged. As a prima facie case is made out by the prosecution against the present applicant, and therefore, it needs a full-fledged trial. Hence, it was requested by him to dismiss the present application. 6. Having considered the facts of the case and submissions made by learned advocate Mr. Mrugen Purohit appearing for the applicant and learned APP Mr. KP Raval appearing on behalf of the respondents as well as documentary evidence produced on the record, it appears that on 10th April, 1996, a complaint was lodged by Navrangpura Police Station on a piece of information by the respondent No. 2 that one Mohammad Rafik Abdul Hamid Kagde and Salim Mehmood Shaikh were selling counterfeit currency notes at concessional rate.
The complainant reached at the place of offence with panchas and found 3(three) persons dealing in money transactions and on making search of those persons by the complainant, counterfeit currency notes of Saudi Arabian Riyal were found [in all 88 notes of denomination of 500]. At that time, the accused No. 1 Mohammad Rafik Abdul Hamid Kagde stated that those counterfeit currency notes were brought by him from Bombay and were kept at the place of the present applicant. Thereafter, such counterfeit notes were being taken from the place of the applicant and handed over to the accused No. 2 and 3 namely Salim Mehmood Shaikh and Usmangani Mahmood Malek. These counterfeit currency notes were seized and thereby accused Nos. 1, 2 and 3 were arrested. Thereafter, a complaint, being C.R. No. I-225/1996 came to be registered with Navrangpura Police Station, District: Ahmedabad for the offence punishable under Sections 489(B) & (C) and 114 of the Indian Penal Code. 7. The present applicant was arrested on 11th April, 1996 and thereafter, upon a bail application preferred by the present applicant before the court of learned Additional Sessions Judge, Court No.12, Ahmedabad, he came to be released by the Court. However, remaining accused were not remained present before the court of learned Magistrate, after the charge sheet was filed against the present applicant. The case against the present applicant was committed to the Court of learned Sessions Judge, as the offence is triable by the Court of Sessions, and consequently, it was registered as Sessions Case No. 204/2008. It appears that the discharge application moved by the applicant before the learned Sessions Judge came to be dismissed on a statement of co-accused having placed fake currency notes at the residence of the applicant. As per the averments and arguments made by the learned advocate appearing on behalf of the applicant, there is no other charge against the applicant, except the statement of the co-accused. From the averments and arguments advanced by learned APP, statements of the co-accused were recorded by the police, wherein involvement of the present applicant was found, particularly of fake currency notes having been found at the residence of the applicant.
From the averments and arguments advanced by learned APP, statements of the co-accused were recorded by the police, wherein involvement of the present applicant was found, particularly of fake currency notes having been found at the residence of the applicant. It is pertinent to note that a complaint was lodged by the respondent No. 2 in the capacity of Police Sub-Inspector on a tip off information received in this connection, and when he reached at the place of the offence, money transaction was going on, which resulted into seizure of counterfeit currency notes from the place of offence i.e., residence of the present applicant. It would be premature to say anything at this stage in respect of credibility of the statement made by the respondent No. 2 in the complaint. The legality of statement can be considered at the trial only. Further, the counterfeit currency notes were seized by the Investigating Officer in presence of the panchas, and therefore, their statements would also be considered by the trial court, while they would be examined by the court concerned. Evidentiary value of the statement of a witness would only be decided by the trial court and not at this stage. Statements of co-accused recorded by the Investigating Officer during the course of investigation shows prima facie involvement of the present applicant in the offence. It is not the only evidence available with prosecution to involve the present applicant in the alleged offence. Other evidences too prima facie finger at the applicant. 8. In case of State of Haryana & Ors.
Statements of co-accused recorded by the Investigating Officer during the course of investigation shows prima facie involvement of the present applicant in the offence. It is not the only evidence available with prosecution to involve the present applicant in the alleged offence. Other evidences too prima facie finger at the applicant. 8. In case of State of Haryana & Ors. v. Bhanalal & Ors., reported in 1992 Supp (1) SCC 335, illustrations given by the apex court needs recapitulation: "The following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9.
It is noteworthy that the Apex court has specifically clarified that the parameters or guidelines in the said judgment are not exhaustive, but only illustrative. Nonetheless, it throws light on the circumstances and situations where the Court's inherent power can be exercised. 10. In case of Gian Singh v. State of Punjab & Anr., reported in (2012) 10 SCC 303 , it is held by the Hon'ble Supreme Court that in quashing a criminal proceeding or FIR or complaint in exercise of inherent jurisdiction is distinct and different from power of a criminal court for compounding offences under Section 320 CrPC. The Hon'ble Apex Court has held that cases, where power to quash criminal proceedings may be exercised where the parties have settled their disputes would be depending on facts and circumstances of each case. Before exercise of inherent quashment power under Section 482 CrPC, the High Court must have due regard to nature and gravity of the crime and its societal impact. It was further held that heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. The Apex Court in Bhajanlal (Supra), after referring to Hazari Lal Gupta v. Rameshwar Prasad, (1972) 1 SCC 452 , Jehan Singh v. Delhi Administration, (1974) 4 SCC 522 , and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein extra ordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercise either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, the case on hands does not fall under any of the illustrations. 11. None of the judgments cited by learned advocate appearing on behalf of the applicant lends support to the case of the applicant. 12. Resultantly, this Special Criminal Application fails and the same stands dismissed accordingly. Rule nisi stands discharged with no order as to costs. Ad interim relief granted earlier stands vacated forthwith. 13.
11. None of the judgments cited by learned advocate appearing on behalf of the applicant lends support to the case of the applicant. 12. Resultantly, this Special Criminal Application fails and the same stands dismissed accordingly. Rule nisi stands discharged with no order as to costs. Ad interim relief granted earlier stands vacated forthwith. 13. As a parting note, it needs a mention here that this Court has not gone into the merits of the matter and has only dealt with the aspect of its entertainability for quashing the impugned complaint, qua the applicant herein, and therefore, the applicant will at liberty to raise all available contentions before the trial Court, which shall be gone into and dealt with by the concerned Court, on its own merits and in accordance with law.