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2019 DIGILAW 1078 (GUJ)

Abdulshakurkhan Pathan v. State of Gujarat

2019-10-25

A.C.RAO

body2019
JUDGMENT : A.C. Rao, J. 1. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioner herein-original accused No. 13 for quashment of the impugned FIR being CR No. I-136 of 2010 lodged by the respondent No. 2 herein - original complainant with Valia Police Station for the offences punishable under Sections 143, 147, 148, 149, 332, 337, 307, 427, 435, 178 and 120(B) etc. of the Indian Penal Code as well as Sections 3 & 7 of the Damages to Public Properties Act as well the Chargesheet and consequently, to terminate the proceedings arising out of the said FIR. 2. Mr. M.M. Saiyed, learned advocate appearing for the petitioner - original accused No. 13 has raised the following contentions:- [a] The petitioner is innocent and the police authority has falsely implicated him in the alleged offence with oblique motive. He further contended that the allegations made in the impugned FIR are false, fabricated, baseless and vexatious. [b] Even if the allegations made in the FIR and the entire Chargesheet papers are taken on their face value and believed to be true, then also the ingredients of the alleged offences are not made out or satisfied. [c] The petrol pump of daughter-in-law of the petitioner is damaged and house of brother of the applicant is also looted and ransacked, however, police has arraigned the petitioner as accused to save skin of real culprits. No statement of victim as to who caused this damage is recorded and made part of the chargesheet by the police authority. [d] Mr. Mansukh Vasava, a Sitting M.P. and his associate beaten up Police Inspector and caused damage to the police outpost and said incident was also reported in the news papers also, yet the FIR is silent about the role of Mr. Mansukh Vasava and his associates. [e] The averments and allegations in the FIR itself shows that Mr. Vasava was in Netrang Police Outpost on the date and time of the incident. [f] Nobody has received serious injury yet section 307 is added in the offence and even in relation to torching of shop separate FIR is registered, yet that offence is included in the present case so as to make the offence grave. Vasava was in Netrang Police Outpost on the date and time of the incident. [f] Nobody has received serious injury yet section 307 is added in the offence and even in relation to torching of shop separate FIR is registered, yet that offence is included in the present case so as to make the offence grave. [g] The FIR is filed on account of political reason and the applicant is roped in so as to prevent him to take legal recourse about the damage caused to petrol pump and house of his brother. There is no reliable evidence in the entire Chargesheet papers so as to connect the petitioner and his relative in the offence. [h] That about torching of shop, separate FIR being CR No. I-138 of 2010 is registered, wherein the present petition is not an accused. That another incident of damage to petrol pump and damage to house of brother of the petitioner is also referred in the FIR. The petitioner cannot be accused of the said offence. There is no evidence to show that the petitioner has played any role at police outpost. On the contrary, political opponent, who damaged the police outpost, are left out. [i]. The person who contested on symbol of opposite party and her father was shown as witnesses and a person against whom an FIR under Atrocity Act was filed by the driver of the petitioner for the incident dated 21/10/2010 is shown as accused and such concocted statement claimed to have been recorded on 25/10/2010. The investigating officer repeatedly asked for time before the trial court at the time of hearing of the bail application court and subsequently papers were concocted. [j] That the respondent No. 2 - Police Inspector has purposely become complainant so as to prevent the petitioner and his relatives from filing a complaint against the real accused. The DSP is also informed about the true facts but he has also not taken any steps due to political pressure. [k] The sitting member of Parliament - Mr. Mansukh Vasava and his associated ransacked Netrang Police outpost in presence of police personnel, however, chargesheet is silent about it. [l] From FIR being CR No. I-136 of 2010 it is clear that the petitioner, his relatives and associates were attacked. [k] The sitting member of Parliament - Mr. Mansukh Vasava and his associated ransacked Netrang Police outpost in presence of police personnel, however, chargesheet is silent about it. [l] From FIR being CR No. I-136 of 2010 it is clear that the petitioner, his relatives and associates were attacked. [m] In support of allegation of complaint, police authority has concocted false statement with the aid of the person who contested on the ticket of rival party and their relative and who are real offender. [n] The impugned FIR is nothing but sheer abuse and clear misuse of his duty by the complainant - respondent No. 2 herein - Police Inspector. [o] Without any evidence, name of the petitioner is shown in the FIR and after four days from the date of registration of the FIR, statements of political opponent of the petitioner came to be recorded, however, even the same also do not help the prosecution. [p] No statement of the owner of the petrol pump i.e. daughter-in-law of the petitioner is recorded. [q] The prosecution claimed to have made panchnama about the damage to the house of relative of petitioner which is referred in FIR and yet no statement of victim in that regard is part of the chargesheet. [r] That with oblique motive, the police became complainant and included the incident of attack upon the petrol pump and house of relative of the petitioner, yet no statement as to who caused damage is recorded and no such statement is produced along with the chargesheet and instead petitioner and his relatives are made accused. [s] Though police was present when ruling party's people attacked police outpost yet nobody was named by police. This shows that filing of chargesheet against the petitioner and his relatives is with malafide intention and to save the real culprits. [t] The petitioner cannot be accused of damaging his own petrol pump and house of his brother. This fact shows that the FIR is filed with a view to save Mr. Vasava and his associates, who are real offenders. [u] Though the son of the petitioner was witness to the incident of attack on petrol pump, his complaint is not registered. The complaint about attack and damage to the house of brother of the petitioner was also not taken from the brother of the petitioner. Vasava and his associates, who are real offenders. [u] Though the son of the petitioner was witness to the incident of attack on petrol pump, his complaint is not registered. The complaint about attack and damage to the house of brother of the petitioner was also not taken from the brother of the petitioner. [v] Though victim was available and wanted to become complainant and lodge the FIR, police refused to register the FIR and on the contrary respondent No. 2 has become complainant to save the real offenders and with ulterior motive. [w]. That the police, instead of playing role as a guardian of the citizen for safety and liberty of the people, has become accomplice of law breakers. [x] The respondent No. 2 has been shielding the politically powerful Mr. Vasava from being booked for the crime. [y] Impugned FIR is sheer abuse and clear misuse of power by the police authority. 2.1. Mr. Saiyed, learned advocate for the petitioner has relied on the decision of the Supreme Court in the case of G. Sagar Suri and another Versus State of Utter Pradesh, reported in AIR 2000 S.C. 754 , wherein it is held that filing of the discharge application by the accused, is no ground for the High Court for not exercising jurisdiction under section 482 of the Code of Criminal Procedure. 2.2. Mr. Saiyed, has also relied upon the decision of the Orissa High Court in the case of Debasis Panigrahi Versus State of Orissa and another, reported in 2010 Criminal Law Journal 1366 wherein it has been held that even after filing of the Chargesheet, complaint can be quashed. In the said decision it is further held that if the allegations in the complaint do not constitute prima facie offence and the allegations are unbelievable, complaint can be quashed and in such circumstances, if the complaint is not quashed and the proceedings are permitted to continue, it would be abuse of process of the court. 3. Mr. L.R. Pujari, learned APP has appeared on behalf of the respondent No. 1 State. An affidavit in reply has been filed by the respondent No. 2 - original complainant. The learned APP has relied on the Affidavit in reply filed by the respondent No. 2, wherein the following contentions are raised:- [1] That earlier the petitioner had preferred Criminal Misc. L.R. Pujari, learned APP has appeared on behalf of the respondent No. 1 State. An affidavit in reply has been filed by the respondent No. 2 - original complainant. The learned APP has relied on the Affidavit in reply filed by the respondent No. 2, wherein the following contentions are raised:- [1] That earlier the petitioner had preferred Criminal Misc. Application No. 15082 of 2010 under section 482 of the Code of Criminal Procedure for quashment of the FIR being CR No. I-136 of 2010 and this Court dismissed the same vide order dated 14/12/2010. [2] That the aforesaid order passed by this Court dismissing the quashing petition, the petitioner had preferred Special Leave to Appeal (Criminal) No. 987 of 2011, however, the same was withdrawn on the ground that during the pendency of the SLP, Chargehseet has been filed before the trial court and accordingly the Hon'ble Apex Court disposed of the said Special Leave to Appeal as withdrawn with a liberty to make an appropriate application/petition for redressal of the grievance of the petitioner. [3] That the offence alleged against the petitioner and others is serious. [4] There are statements of witnesses. There are statements of Kanilaben Ajarsinh Deshmukh, S.M. Rathod - Police Inspector. [5] The petitioner has antecedents. [6] There are allegations in the FIR which discloses cognizable offence. [7] This case does not fall in the category of rarest of rare case and hence the impugned FIR is not required to be quashed and set aside in exercise of powers under section 482 of the Code of Criminal Procedure. The learned APP relying on the affidavit in reply, has contended that when this Court earlier rejected the quashing petition and said order has been confirmed by the Hon'ble Supreme Court, discretion under section 482 of the Code of Criminal procedure is not required to be exercised and the present quashing petition is required to be dismissed. 4. Heard Mr. Saiyed, learned advocate appearing for the petitioner and Mr. L.R. Pujari, learned APP for the State at length. Considered the allegations made in the FIR as well as entire chargesheet papers. 4. Heard Mr. Saiyed, learned advocate appearing for the petitioner and Mr. L.R. Pujari, learned APP for the State at length. Considered the allegations made in the FIR as well as entire chargesheet papers. What is required to be considered while considering petition under Section 482 of Code of Criminal procedure is the allegations made in the FIR, documents produced along with the FIR, if any, and since in the present case chargesheet has been filed, this court is required to consider the chargesheet papers also. 5.1. After considering rival contentions and perusing the record, it appears that the FIR has been filed for the offences punishable under Sections 143, 147, 148, 149, 332, 337, 307, 427, 435, 178 and 120(B) of the Indian Penal Code as well as Sections 3 & 7 of the Damages to Public Properties Act. Chargesheet has also been filed and the trial is pending before the competent court. 5.2. It is pertinent to note that in earlier round of litigation, the petitioner had filed quashing petition to quash the FIR in question before filing of the chargesheet and this Court dismissed the said petition, against which even SLP was preferred, however, during the pendency of the said SLP, chargesheet was filed, and the petitioner withdraw the said SLP with a liberty to make an appropriate application for redressal of the grievance of the petitioner. However, the fact remains that earlier the petitioner had filed quashing petition and same was dismissed by this Court and against the said order, the petitioner had approached the Hon'ble Supreme Court, however, the SLP was withdrawn. Thus, the order passed by this Court dismissing the quashing petition has been confirmed by the Hon'ble Supreme Court. 5.3. Considering the FIR, it is clear that the name of the petitioner is disclosed in the FIR. There are statements of the witnesses implicating the petitioner in the offence in question. It is the case of the petitioner that the petitioner is falsely implicated in the offence by the investigating officer and the investigation is not properly carried out and the investigation is faulty. In the proceedings under section 482 of the Code of Criminal Procedure, this Court is not required to consider whether the allegations made in the FIR are true or false. In the proceedings under section 482 of the Code of Criminal Procedure, this Court is not required to consider whether the allegations made in the FIR are true or false. What is required to be considered by this Court is, whether the ingredients of the alleged offences are made out or not and/or whether there is prima facie case against the accused or not. If the allegations made in the FIR are so absurd and vexatious which even no man having common prudence can believe, FIR can be quashed and set aside. If the accused is named in the FIR and if there are statements of the witnesses, powers under section 482 of the Code of Criminal Procedure cannot be exercised. Merely because the witnesses are interested witnesses, impugned proceedings cannot be quashed and set aside. Even on the ground of faulty investigation or false implication, as alleged, FIR cannot be quashed and set aside. Whether the allegations in the FIR are true or false and whether the accused is guilty or not, is to be decided by the competent court having jurisdiction during the full-fledged trial by leading evidence. Thus, the same is the issue relating to appreciation of evidence and same is required to be gone into by the competent court. 5.4. In this regard, we would like to refer recent decision of the Hon'ble supreme Court in the case of Md. Allauddin Khan Versus State of Bihar and others, reported in AIR 2019 S.C. 1910 , wherein in para 17, the Hon'ble Supreme Court has held as under:- "17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions and/or inconsistencies in the statements of the witnesses is essentially an issue relating to an appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." 5.5. That stage is yet to come in this case." 5.5. When the ingredients of the alleged offences are made out, petitioner is named in the FIR and there are statements of the witnesses implicating the petitioner in the offence in question and when there is a prima facie case against the accused, powers under section 482 of the Code of Criminal Procedure cannot be exercised. 6. For the foregoing discussion, present petition is devoid of merits and hence rejected. Rule is discharged. Interim relief granted earlier stands vacated forthwith. After pronouncement of the present order, Mr. M.I. Saiyed, learned advocate appearing for Mr. M.M. Saiyed submitted that interim relief was continued during the pendency of the present matter and same is continued till today and hence the same may be continued and execution of the present order may be stayed for eight weeks, so as to enable the petitioner to approach the Supreme Court. Considering the facts and circumstances of the case, the request is rejected.