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2024 DIGILAW 91 (GUJ)

NIRAJKUMAR RATILAL PATEL v. STATE OF GUJARAT

2024-01-11

SANDEEP N.BHATT

body2024
ORDER : 1. Since the prayers and issues in these present petitions are of a similar nature, stemming from the same F.I.R. at the request made by the learned advocates for the parties, these matters are now being taken up for final consideration. Criminal Misc. Application No. 1686 of 2017 is regarded as the lead matter, and the facts are being drawn from it. Consequently, all the matters are heard together. 2. The present application is filed for seeking the following reliefs: (A) xxx (B) Your Lordships may be pleased to quash and set aside the FIR being I - C.R. No. 117 of 2015 registered with Patan City ‘B’ Division Police Station dated 16.09.2015 for the offence punishable under Sections 395, 307, 120B, 390, 391, 337, 441 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and other consequential proceeding. (C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the proceedings of FIR being I - C.R. No. 117 of 2015 registered with Patan City ‘B’ Division Police Station dated 16.09.2015 for the offence punishable under Sections 395, 307, 120B, 390, 391, 337, 441 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and other consequential proceedings as against applicant. (D) xxx 3. Brief facts of the case as per the case of the applicant in this application are as such that the present applicant before this Court is original accused No. 3 of the FIR, who happens to be a Police Inspector serving at Patan ‘B’ Division Police Station and is booked for the offences as referred to in the FIR. Respondent No. 2 herein is the original complainant of the case. Respondent No. 2 herein is the original complainant of the case. On 26.08.2015 on account of there being bandh (general strike) declared in Patan City, on the day of incident there was a mob of about 200 to 250 people, who have with the help of deadly weapons like pipes, sword, stick and canes of kerosene had assembled at M.K. Educational Institution and had caused damage to such institution in the same breath, there is an allegation as well that watchman of such institution, namely, Bhil Raghu Hala, who was taking care of such institution, there is a case put up that somebody out of mob had put a sword on his neck and was threatened that if he dares to stop them, he will be done to death, eventually, it is a case that mob of around 200 to 250 people, who have barged into such institution, have caused damage with the help of stones pelting, have broken down the computers and other furniture with the help of stick so also fire was caused inside the building of institution, at the same time, electric appliances lying in the institution were damaged, in short with a fold of allegation that important documents and important things which were lying inside the institution, there was a robbery committed of such important things and thereby the mob was responsible for a damage caused to the institution which would be measured into crores, with a case that a mob having caused damage to M.K. Educational Institution have thereby committed offences under Sections 395, 307, 120B, 390, 391, 337, 441 of the Indian Penal Code and u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore a case was put up specifically against three accused persons along with a mob of about 200 to 250 people assembled at the spot. It is further the case of the applicant in this application that the applicant in such background of co-accused’s of the very impugned FIR have been protected by this Court extending a relief of not to take coercive steps against them, the fact that the applicant before this Court is a Police Inspector serving at ‘B’ Division Police Station, Patan and is as on date not approached by the police agency for the purpose of arrest. Hence, the present application is preferred. 4. Heard Mr. Hence, the present application is preferred. 4. Heard Mr. Pratik B. Barot, the learned counsel for the applicant, Mr. Daxay Patel, the learned counsel for the respondent No. 2-complainant and Mr. Manan Mehta, the learned Additional Public Prosecutor (APP) for the respondent No. 1-State of Gujarat. 5. At the outset, learned APP has submitted that during the pendency of the present applications “B” Summary Report is filed in the proceedings, and the trial court is in process of consideration of it. The Court took note of this development, by considering the fact that the present application is filed in the 2018, on earlier occasions i.e. on July 12, 2023, and August 17, 2023, the Court has passed following orders: 12.7.2023: “It is reported that the summary report is filed before the learned trial Court, which is pending consideration. The concerned trial Court is directed to take decision within four weeks from today. Re-list this matter on 17.8.2023. It is expected that the learned advocates for the parties shall not prolong the hearing of the matter before the learned trial Court unnecessarily. Direct service is permitted.” 17.8.2023: Learned advocate for the petitioner has drawn attention of this Court to the last order dated 12th July 2023, which is as under: “It is reported that the summary report is filed before the learned trial Court, which is pending consideration. The concerned trial Court is directed to take decision within four weeks from today. Re-list this matter on 17.8.2023. It is expected that the learned advocates for the parties shall not prolong the hearing of the matter before the learned trial Court unnecessarily. Direct service is permitted.” Today, learned advocate for the petitioner Mr. Pratik Barot, upon instructions, has submitted that thought it was pointed out to the concerned court, the Court has not passed any order on the B-Summary report submitted before the court by taking decision on the same. Let the concerned Presiding Officer, i.e. 3rd Additional Senior Civil Judge and A.C.J.M. Patan, before whom the proceeding of the Summary Report No. 18/2018 is pending, shall submit his explanation/report as to why the order passed by this Court dated 12th July 2023 has not been complied with in its true spirit. The report shall be submitted with the registry of this court on or before 24th August 2023. The report shall be submitted with the registry of this court on or before 24th August 2023. Re-list this matter on 28th August 2023 for further consideration.” Pursuant to that, it came to light that on August 23, 2023, the trial court, through the learned Presiding Officer, the 3rd Additional Senior Civil Judge, Patan, submitted an explanation. In this communication, assurance was given to this Court that the pending report before the trial court would be expeditiously decided. However, when the matter is called out, learned advocate for the applicant has submitted that the said report is yet not decided as the original complainant has raised objections following the “B” Summary report. Therefore, Mr. Pratik B. Barot, the learned counsel for the applicant, has insisted on the hearing of these applications, filed under Section 482 of the Criminal Procedure Code, 1973, as well as Section 226 of the Constitution of India. 6.1 Mr. Pratik B. Barot, the learned counsel for the applicant, has drawn my attention to the averments made in the impugned F.I.R. and the transcript of the call details produced on record by the Investigating Agency. He submitted that prima facie, it transpires that the present applicants is falsely implicated in the alleged offence, possibly as part of a planned effort to seek personal vengeance, leading to harassment for the applicants in respective applications, with one of the applicants being an influential person in the policies. Therefore, the proceeding is required to be quashed, irrespective of the pendency of the report filed by the Investigating Agency before the concerned trial court. 6.2 Furthermore, he has argued that, as per the settled legal position of law, the proceeding under Section 482 of the Cr.P.C. can be decided independently, irrespective of the pendency of any other legal proceeding or without taking into consideration the Summary Report filed by the Investigating Agency. He has emphasized that if the application of the present applicant is not decided on the ground that the summary report is filed and thereafter, the interim relief granted after hearing the present applicant on the aspect of the prima facie case by this Court is vacated, then the applicant would be remedyless until the Summary Report is decided. 6.3 Mr. 6.3 Mr. Barot has pointed out an earlier order passed by the Co-ordinate Bench of this Court, stating that the present applicants is falsely implicated in the alleged incident, and they have not been found involved in the said offence. Considering the fact that a “B” Summary Report is also filed by the Investigating Agency, indicating no evidence against the applicant, he has argued that the proceeding should be quashed without waiting for the outcome of the Summary Report. 6.4 In support of his various contention including the maintainability of application under Section 482 of the Cr.P.C. or under Section 226 of the Constitution, he has relied upon the judgment of the Hon’ble Apex Court in the cases of (i) Prabhu Chawla vs. State of Rajasthan, 2016 (0) AIJEL-SC 59137, (ii) Vijay vs. State of Maharashtra, 2016 (0) AIJEL-SC 59702 and Haji Iqbal @ Bala through S.P.O.A. vs. State of U.P. and Others. 6.5 In view of the above-all, he has prayed to allow the present applications as no fruitful purpose would be served in continuing the present application in view of the judgment of the Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 . 7. Per contra, Mr. Daxay Patel, the learned counsel for the respondent No. 2-complainant, has submitted that the summary report is already filed, and the trial court can be directed to expedite the process of the summary report within the stipulated time period. 8. Mr. Manan Mehta, the learned Additional Public Prosecutor (APP) for the respondent No. 1-State of Gujarat, has also supported the submission of the learned counsel for the complainant. He has further submitted that it is not proper to decide the present applications on the merits under Section 482 of the Criminal Procedure Code, 1973, or under Section 226 of the Constitution, especially when the trial court is also considering the “B” Summary Report filed in the year 2018. Therefore, he has also suggested that the trial court can be directed to expedite the process of consideration of the summary report within the stipulated time period. 9.1 I have considered the rival submissions made at the bar by the respective parties. Upon a bare reading of the F.I.R. prima-facie, some allegations are levelled against the accused. Therefore, he has also suggested that the trial court can be directed to expedite the process of consideration of the summary report within the stipulated time period. 9.1 I have considered the rival submissions made at the bar by the respective parties. Upon a bare reading of the F.I.R. prima-facie, some allegations are levelled against the accused. Pursuant to that, the Investigating Agency has carried out the investigation, and the Investigating Agency has filed the report for “B” Summary, stating that no sufficient evidence is found against the accused. Considering this aspect and acknowledging the fact that this Court has already directed the trial court to decide the application of “B” Summary within the stipulated time period, which, in turn, the trial court could not decide for reasons best known to the trial court. 9.2 However, considering the fact that during the pendency of the proceeding, if any report regarding the filing of a summary report is filed, then normally the consideration of the application pending before this Court will become academic to a certain extent. Also, in such a factual position, it is appropriate to direct the concerned trial court to decide the report filed by the Investigating Agency, and the application filed before this Court should not be considered any obstruction in deciding the same, as this order is passed without observing anything on the merits of the application. This is normally followed by the Courts, considering the fact that in case the report is not accepted, then the applicant could have a remedy to approach the appropriate forum by filing a revision application or a fresh appropriate petition for the remedy available under the law. Keeping this aspect in mind and considering the fact that this Court has already taken cognizance of the summary report, which is filed before the authorities but somehow the trial court is not able to decide the same, though it is directed earlier. Keeping this aspect in mind and considering the fact that this Court has already taken cognizance of the summary report, which is filed before the authorities but somehow the trial court is not able to decide the same, though it is directed earlier. 9.3 It is appropriate to direct the concerned trial court to decide the Summary Report by giving proper opportunity to the parties, as expeditiously as possible, preferably within eight weeks from today and shall be decided in accordance with the law, without fail by considering the material available with the trial court, without being influenced by this order as this Court has not exercised any power under Section 482 of the Cr.P.C. at this stage in view of the fact that the report of summary is pending before the trial court for consideration. 9.4 Now addressing the anxiety about the protection, which is granted by the trial court, will not be available to the applicant considering the peculiar facts and circumstances of the present case, where the applicant is protected since the year 2015 and 2017 respectively, and the summary report is also filed in the year 2018, which unfortunately the trial court could not decide till today. It is appropriate to extend the interim relief granted by the trial court till the decision of the summary report. 10. Accordingly, the present captioned applications are disposed of. Notice stands discharged.