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2024 DIGILAW 315 (GUJ)

Mansing Shankarlal (Damor) Mina v. State Of Gujarat

2024-02-15

CHEEKATI MANAVENDRANATH ROY

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JUDGMENT : 1. In this batch petitions filed under Section 482 of the Criminal Procedure Code, 1973 (CrPC), the petitioner sought quash of various FIRs registered against him in various police stations for the offences punishable under Sections 65(a)(e), 81, 83, 98(2) and 116(b) of the Prohibition Act. Since all these petitions are filed by the same petitioner, these petitions are heard together and they are being disposed of by this common order. 2. Heard, learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent – State. 3. The petitioner is one of the accused in all the FIRs that were registered in this batch of petitions. As per the prosecution version, the other accused were found to be in illegal possession of various types of liquor unauthorizedly and they have been transporting the said liquor illegally, contrary to the provisions of the Prohibition Act. At that time they were apprehended by the police and the contraband was seized from their possession and they were taken into custody and were interrogated by the police and the aforesaid crimes were registered against them. At the time of interrogating the said arrested accused, it is stated that they have disclosed the name of the petitioner herein also as the person who has supplied the said liquor to them. Therefore, on the basis of the said statement of the co-accused, the petitioner is also shown as an accused in all the above crimes. Taking a clue from the said statement of the co- accused, the Investigating Officers have been investigating the said cases regarding the complicity of the petitioner in commission of the said offences and the role played by him the commission of the said offences punishable under the Prohibition Act. The investigation in the said cases is pending. 4. While so, the petitioner sought quash of all the said FIRs and the criminal proceedings initiated thereon against him on the sole ground that he was implicated as an accused in the above crimes solely on the basis of the statement of the co-accused and the said statement of the co-accused is not admissible in evidence and he cannot be prosecuted for the said offences on the basis of the said statement of the co-accused. Therefore, on the said sole ground, he sought quash of the FIRs registered against him. 5. Therefore, on the said sole ground, he sought quash of the FIRs registered against him. 5. The learned counsel for the petitioner placed reliance on the judgment of this Court rendered in the case of Sanjay Keshavbhai Patel v. State of Gujarat, 2019 (0) AIJEL-HC 240931, wherein, it is held that when there is only the statement of co-accused and except such statement of co-accused there is no other material or evidence available to indicate that the applicant has committed any such offence or abetted commission of offence by the other co-accused in any other manner, that the FIR registered against him and the consequential criminal proceedings initiated thereon are to be quashed and set aside. 6. Per contra, learned Additional Public Prosecutor for the State vehemently contends that the statement of co-accused given during the course of interrogation serves as a clue to the Investigating Officer regarding complicity of the petitioner in commission of the said offence and on the basis of the said clue that is secured during the course of investigation that the Investigating Officer is perfectly justified in registering the FIR against him and to investigate the case to find out the role played by the petitioner in perpetrating the said offence and to find out his complicity in commission of the said offence and if ultimately the Investigating Officer could collect evidence on the basis of the said clue got to him from the statement of co-accused, that a Charge-sheet would be filed against him with the said evidence and she would vehemently contend that the FIRs cannot be quashed at this stage interdicting the investigation. She would also contend that this is not a stage where the evidence is to be weighed and appreciated and the investigation shall be allowed to go on and only after the Charge-sheet is filed that it is to be ascertained whether there is sufficient ground and material against the petitioner to prosecute him for the said offence or not. 6.1 To prop up her contention, she relied on a judgment of the Apex Court rendered in the case of Mohd. Malek Mondal v. Pranjal Bardalai and Another, (2005) 10 SCC 608 . She also placed reliance on the judgment of this Court rendered in the case of Firozbhai Hajibhai Sodha v. State of Gujarat, which is an unreported judgment rendered in Criminal Misc. Malek Mondal v. Pranjal Bardalai and Another, (2005) 10 SCC 608 . She also placed reliance on the judgment of this Court rendered in the case of Firozbhai Hajibhai Sodha v. State of Gujarat, which is an unreported judgment rendered in Criminal Misc. Application No. 5836 of 2021 and also a judgment rendered in the case of Budhiyabhai Somabhai Khalasi v. State of Gujarat, 2012 SCC OnLine Guj 1300. 7. The facts of the case are absolutely not in controversy. The other accused against whom the aforesaid FIRs were registered, as per the prosecution story, they are found to be in illegal possession of various types of liquor and have been illegally transporting the same. They were apprehended by the police and the contraband was seized from their possession. When they were interrogated after taking them into custody, during the course of investigation, they revealed that the petitioner herein had supplied the said various types of liquor to them. As noticed supra, it is on the basis of the said statement of the co-accused, the petitioner is now shown as one of the accused in the above FIRs. 7.1 Now, the crucial question that arises for consideration is whether the petitioner is entitled for quash of the FIR registered against him on the sole ground that he was shown as accused in all the above crimes only on the basis of the statement given by the co- accused or not. According to the petitioner, the said statement of co- accused is inadmissible in evidence and he cannot be shown as accused on the basis of the said statement of the co-accused. 7.2 This Court has taken divergent views on the said proposition of law. In some cases, this Court has taken a view that registering FIR against a person solely on the basis of the statement of the co- accused is not permissible and that, the said FIR and the criminal proceedings initiated thereon are liable to be quashed. 7.2 This Court has taken divergent views on the said proposition of law. In some cases, this Court has taken a view that registering FIR against a person solely on the basis of the statement of the co- accused is not permissible and that, the said FIR and the criminal proceedings initiated thereon are liable to be quashed. The other Coordinate Benches have taken a view that the statement of co- accused serves as a clue to the Investigating Officer regarding the role played by the said person in commission of the said offence and when the case is at the investigation stage, that the FIR and the criminal proceedings initiated against him cannot be quashed and held that, ultimately it is for the Investigating Officer either to file the charge-sheet against him after collecting valid evidence in proof of his complicity in commission of the said crime or drop the proceedings if no other evidence is available in proof of his complicity in the commission of the said crime. 7.3 However, though there are divergent views expressed by this Court, as discussed supra, the judgment of the Apex Court in the case of Mohd. Malek Mondal (supra), is relevant in the context to consider. In that case also, the petitioner therein sought quash of the FIR registered against him on the ground that there was no material against him except the inadmissible, retracted statement, allegedly made by the co-accused. The High Court, where the said quash petition was filed, declined to quash the criminal proceedings initiated against him. When the said order of the High Court was questioned before the Apex Court, the Apex Court did not accept the contention that since the material only available on record was inadmissible, retracted statement, allegedly made by the co-accused that the petitioner is entitled for quash of the criminal proceedings and thereby, upheld the judgment of the High Court. 7.4 In another judgment rendered in the case of Mohammed Farsin v. State, represented through the Intelligence Officer, rendered in Criminal Misc. Application No. 296 of 2014, the Supreme Court observed as under: “...The confession of a accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. 7.4 In another judgment rendered in the case of Mohammed Farsin v. State, represented through the Intelligence Officer, rendered in Criminal Misc. Application No. 296 of 2014, the Supreme Court observed as under: “...The confession of a 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 Officer to collect the evidence against the said person who has been named by the co-accused ” 7.5 Thus, from the ratio laid down in the above judgment by the Apex Court, the legal position is made clear that the statement of co- accused can be considered and treated as a clue or a piece of information to inquire or investigate as to the role played by the said person in commission of the said offence and if any satisfactory and reliable evidence or material is found during the course of investigation in support of the said statement given by the co-accused, certainly, the said person against whom the said evidence is available, would be liable for prosecution. At the stage when the investigation has commenced or the investigation is going on, in the said facts and circumstances of the case, it would not be proper to interdict the investigation or to quash the FIR and the criminal proceedings initiated thereon against the said person. 7.6 The same view was taken by this Court in the judgment rendered in the case of Firozbhai Hajibhai Sodha (supra). This Court in the said judgment has referred all the earlier judgments of this Court rendered on the point wherein this Court has held that the said statement of the co-accused can certainly be taken as a clue by the Investigating Officer and proceed with investigation against the said person by registering the case against him and that the proceedings cannot be quashed. This Court also in the said judgment relied on the judgment of the Apex Court rendered in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav, (2004) 7 SCC 528 , and the above cited judgment in Mohammed Farsin’s case and held that the FIR and the criminal proceedings initiated against a person on the basis of the statement of co-accused cannot be quashed under Section 482 of the CrPC. 7.7 In the present context, it is relevant to consider the judgment of the Supreme Court in the above case of Kalyan Chandra Sarkar (supra). In the said judgment, Supreme Court clearly held that when the only other evidence available to the prosecution to connect the person with the crime is alleged confession of the co-accused which according to the learned counsel was inadmissible evidence, it is too premature to accept the said contention. 7.8 The Apex Court further held in the said judgment that the admissibility or otherwise of the confessional statement and the effect of evidence adduced by the prosecution and the merit of the evidence that may be adduced by the prosecution are all matters to be considered at the stage of the trial. 7.9 Thus, though there are divergent views expressed by this Court on the said proposition of law, in view of the authoritative pronouncements of the Supreme Court on the point as discussed supra, which is the law of land and binding on this Court, this Court has absolutely no hesitation to hold that the proceedings against the petitioner herein that are initiated by way of registering the FIR on the basis of the statement of co-accused, cannot be quashed in exercise of inherent powers of this Court under Section 482 of CrPC. If ultimately, the Investigating Officer finds material or evidence regarding the complicity of the petitioner in commission of the said offence, certainly, he would be liable for prosecution along with the other accused. If no material is found on the said clue, certainly, the Investigating Officer would drop the proceedings against him at the time of filing final report before the concerned Court. Therefore, the petitions are devoid of merit and they are liable to be dismissed. 8. Before parting with the cases, it is to be observed that if ultimately no material is found against the petitioner, after completion of investigation and if the charge-sheet is filed on the basis of the statement of the co-accused alone, then the petitioner is at liberty to file a fresh application challenging the legal validity of the said charge-sheet and to seek quash of the proceedings against him if there is no material to proceed against him. In fact, that was view taken by this Court in Firozbhai Hajibhai Sodha’s case, cited supra. 9. Resultantly, the applications are dismissed. Rule is discharged. In fact, that was view taken by this Court in Firozbhai Hajibhai Sodha’s case, cited supra. 9. Resultantly, the applications are dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith. However, the petitioner is at liberty to file fresh application for quash after filing of the charge-sheet if the said charge-sheet is filed on the basis of the statement of the co-accused alone.