Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 273 (GUJ)

Maheshbhai Ramanbhai Solanki v. State of Gujarat

2025-03-13

J.C.DOSHI

body2025
ORDER : (J. C. DOSHI, J.) 1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the First Information Report bearing C.R. No.III-161 of 2019 registered with Vasad Police Station, Anand for the offences punishable under Sections 65(E), 81, 83, 116(B) and 98(2) of the Prohibition Act and the proceedings initiated in pursuant thereto. 2. The facts in brief giving rise to the present petition are that the complainant-respondent No.2 saw three persons standing at one open Farm with one Swift Car and Activa two wheeler as the police got tip regarding the selling of liquor. It is alleged that one ran away with the Swift car after seeing the police and therefore, the police could not see the car number and other two individuals ran away in the farm and therefore, the police could not recognize them. It is alleged in the FIR the police has recovered some liquor and other things with one Activa two wheeler from the scene of offence. It is further stated that the accused persons ran away from the place and the police could not identify them and the petitioner has been falsely implicated in the offence. 3. Learned advocate for the petitioner Mr. Dipak B. Patel, submitted that another FIR being C.R. No.III-342 of 2018 dated 25.12.2018 was lodged with the concerned Police Station. The petitioner played an active role in filing of the FIR. Thus upon that, the petitioner was falsely implicated since the cousin brother of petitioner filed a complaint with Anti-Corruption Bureau in connection with such FIR. It is further submitted that because of the above referred FIR given by the cousin of the petitioner, the name of the petitioner is implicated in the present case by the police to take revenge and settle score, which is clear from the fact that the Investigating Officer of both these complaints is the same, and therefore, the impugned complaint is lodged with malafide and ulterior motive to harass the petitioner. It is also submitted that petitioner had been roped in the FIR on the presumptive belief that the present petitioner was involved in selling the Indian made foreign liquor when the raid took place. In addition, it is submitted that there is no material available with the investigating officer to arraign as an accused in the present FIR. It is also submitted that petitioner had been roped in the FIR on the presumptive belief that the present petitioner was involved in selling the Indian made foreign liquor when the raid took place. In addition, it is submitted that there is no material available with the investigating officer to arraign as an accused in the present FIR. It is also submitted that since the petitioner has been involved in the questioned FIR only on the ground of personal vehemency, the FIR on its face value explicit is filed with a malafide intention, since petitioner had preferred an application against a Police Constable Mr. K.D. Chudasma alleging that he is involved in corrupt practice and therefore, keeping with a grudge, the petitioner has been implicated. 4. Learned advocate for the petitioner submitted that there would be no evidence on record even at the time of framing the charge which would permit the prosecution to put the petitioner in the list of the accused under the above said FIR. It is further submitted that the petitioner has been roped in based of the statement of the co-accused, which is inadmissible in evidence and therefore, it is submitted the impugned FIR may be quashed and set aside by allowing the petition. 5. Per contra, learned Additional Public Prosecutor submitted that the application was tendered by the petitioner before the ACB Police Station, Shahibaug was investigated by Mr. K.D. Chudasma. There is no genuine reason for Mr. K.D. Chudasma to keep any grudge qua the present petitioner. The petitioner has been named in the present FIR and infact, the petitioner is involved in multiple offences under the Prohibition Act. It is further submitted that on receipt of the tip, the police had raided the place where the Indian Made Foreign Liquor (IMFL) was found and on seeing the police, the accused ran away from the spot. It is submitted that the police had the knowledge of the petitioner being involved even at the time of the raid and since the petitioner has been named in the FIR at the first instance, the present petition should be dismissed and the FIR should be allowed to be investigated. In addition, the petitioner has been named by the co-accused as selling the IMFL and the investigation is at a very nascent stage. Upon above submission, it is prayed to dismiss the petition. 6. In addition, the petitioner has been named by the co-accused as selling the IMFL and the investigation is at a very nascent stage. Upon above submission, it is prayed to dismiss the petition. 6. This Court has heard the learned advocates appearing for the respective parties and has perused the material on record. What is noticed by this Court is that the petitioner is named in the FIR wherein it has been specifically stated that the petitioner alongwith three other persons ran away at the time of raid. The petitioner has tried to given a different colour to the FIR by arguing that he has been falsely implicated by Mr. Chudasma. However, there is no such narration in the FIR. 7. The present FIR has been lodged by an Unarmed Police Constable-Ishwarbhai Yuvrajbhai, Buckle No.084 and the raid has been carried out upon the instructions and directions received from the concerned Superintendent of Police, alongwith the other Unarmed Police Constables-Jaydipsinh Mohan, Buckle No.1110, Kuldipsinh Surendrasinh, Buckle No.180, Bharatbhai Maganbhai, Buckle No.918, Hirenbhai Shanabhai, Buckle No.183 and Bharatbhai Bhanubhai, Buckle No.205. The FIR specifically states that the police were on their patrolling work and upon receipt of the tip, they have raided the spot and found persons were selling IMFL, they ran away from the spot. One of them was also the present petitioner who ran away from the spot. In this fact situation, the argument of learned advocate for the petitioner Mr. Dipak B. Patel that the present petitioner has been arraigned in the offence on the basis of the statement of the co-accused and the petitioner was not found at the spot would pale into insignificance. 8. Qua the submission of learned advocate Mr. Dipak B. Patel the petitioner is falsely implicated in the offence because he had preferred an application with ACB Police Station, Shahibaug which was investigated by Mr. K.D. Chudasma on the ground of corrupt practices, the same cannot be accepted as the complaint which is preferred by the petitioner is being investigated by the Additional Director, and the present FIR in which the petitioner has been named is not being investigated by Mr. K.D. Chudasma and he was also not a part of the raiding party. 9. At this stage, it would be necessary to refer to the decision of this Court dated 05.03.2025 in Criminal Misc. K.D. Chudasma and he was also not a part of the raiding party. 9. At this stage, it would be necessary to refer to the decision of this Court dated 05.03.2025 in Criminal Misc. Application No.18765 of 2019 and allied matter (Arif Amirmiya Pirjada v. State of Gujarat and Anr.). Relevant part of the decision is reproduced herein as under :- 7. Having heard learned advocates for the parties, what could be noticed that on the basis of statement of co-accused, name of the petitioners is disclosed in the commission of offence. Coordinate Bench has quashed the FIR against co-accused, however, there cannot be any parity in the quashing matter in exercise of powers under section 482 of Cr.P.C. Each case rest on different facts and facts of one accused cannot be compared with facts of other accused, similarly, role of each accused in alleged offence cannot be compared more particularly no further investigation in the offence is carried and quashment of FIR is sought at initial stage. 8. So far as second contention of the petitioners that no material is available to prosecute present petitioners except statement of co-accused is concerned, what could be noticed that quashing petition is filed at the stage of filing of FIR and investigation is yet to be progressed in the matter. Statement of co-accused recorded during investigation is relevant under section 10 of the Evidence Act. 9. In the case of Jayendra Saraswati v/s. State [ AIR 2005 SC 716 ], the Hon’ble Apex Court has held that if prima facie evidence of conspiracy exists, evidence of statement made by any of the conspiratory in furtherance of common object is admissible so far as investigation is concerned. 10. At the outset, if role of the accused could be seen from available record that petitioners are arrayed either as supplier of liqour or liquor was to be supplied to them. Admittedly, the role of the petitioners unfurled during the statement of other accused who are arrested in aforesaid FIR. However, the petitioners approached this Court at initial stage of investigation for quashing of FIR. Investigation in FIR is stayed by interim order. Indeed statement of co-accused is not admissible in evidence but it is relevant during the investigation. Learned advocate for the petitioners relying upon the various judgment argued that since co-accused statement is not admissible in evidence, FIR needed to be quashed. Investigation in FIR is stayed by interim order. Indeed statement of co-accused is not admissible in evidence but it is relevant during the investigation. Learned advocate for the petitioners relying upon the various judgment argued that since co-accused statement is not admissible in evidence, FIR needed to be quashed. At first blush argument looks attractive but stage of deciding admissibility of evidence comes after filing charge sheet; framing of charge and during recording of evidence. At the initial stage of registration of FIR and starting of investigation on the basis of statement of co-accused issue of admissibility would not arise. 11. With profit, I may refer to observation in the case of Kailash Govindram Rathi Versus State Of Gujarat [ 2008 (1) GLR 750 ], this Court has held in para 6,8,9 and 10 as under :- “6. At the outset it is required to be noted that against all the respective applicants, the complainants are filed before the different Police Stations for the offences punishable under Ss. 66(B), 65(a)(e), 81, 43 read with Sec. 116(2) of the Bombay Prohibition Act, 1949 . It is also required to be noted that in almost all the cases the accused who were caught are Drivers, Cleaners etc., transporting English liquor from the places out of Gujarat to the State of Gujarat. It is also required to be noted that there is prohibition in the State of Gujarat. It is also required to be noted that in almost all the cases allegations against the respective applicants on the basis of the statements of the persons who are arrested are that the applicants are either suppliers of the liquor and/or liquor was to be supplied to them for the purpose of sell within the State of Gujarat. In almost all the cases the allegations is that the applicants are absconding and most of them are from out of the State of Gujarat. Now on the basis of the allegations and averments in the complaints, and on the basis of the statements of the co-accused who are arrested, the Investigating Officer started to initiate investigation against the applicants, at that initial stage all the applicants have approached this Court by way of present application for quashing and setting aside the respective complainants against them solely on the ground that except the statements of the co-accused there is no material and/or evidence against them. This Court granted stay of further investigation in almost all the cases. Now the question which is required to be considered at this stage is whether the investigation is to be commenced and/or proceeded on the basis of the statements of the co-accused and whether the Investigating Officer should be permitted to further investigate the case and/or whether at this stage even before the investigation is concluded respective complainants are required to be quashed. 7. Learned Advocates appearing on behalf of the applicants have relied upon the decision in the case of New India Assurance Co. Ltd. (supra) have submitted that in the aforesaid decision, this Court has taken a view that on the basis of the statements of the co-accused there cannot be any conviction. In one of the cases Jinabhai Kalabhai Rajput (supra) the accused was convicted and in the case of Suresh Chhotalal Verma (supra), the accused was discharged. Now it is required to be noted at this stage that in the case of Jinabhai Kalabhai Rajput (supra) the question came to be considered at the time of appeal and accused was convicted solely on the basis of the statements of the co-accused and it was found that there was no other material and/or evidence against the accused. Now so far as the case of Suresh Chhotala Verma (supra) is concerned in that case the question came to be considered at time of discharge after chargesheet was submitted and it was found considering the charge-sheet papers that except the statements of the co-accused there was no material and/or evidence against the accused and considering the same accused came to be discharged. Thus, the stage at which this Court intervened was the stage at the time of discharge i.e. after the investigation was completed and charge-sheet was filed. Under the circumstances both the decisions are not applicable to the facts of the present cases. 8. Identical question came to be considered by the Hon ble Supreme Court in the case of Mohd. Malek Mondal (supra) reported in 2005 10 SCC 608 and the case before the Hon ble Supreme Court was that an application was submitted u/s. 482 of the Criminal Procedure Code to quash the complaint and one of the ground canvassed on behalf of the accused was that there was no material against the petitioners except the inadmissible retracted statement allegedly made by the co-accused. The Hon ble Supreme Court confirmed the order passed by the High Court refusing to quash the complaint on that ground at the stage of investigation and the Hon ble Supreme Court has held that the question about corroborative nature of evidence has to be considered at the appropriate stage and the High Court rightly declined the prayer to quash the complaint at the initial stage when only cognizance had taken and the accused was still to be interrogated. Relevant paragraph No. 6 of the said judgement is reproduced as under: "6. The proceedings of the complaint are at the initial stage after the cognizance has been taken. The petitioner could not be interrogated since he has been avoiding to appear before the NCB officer despite issue of various notices as per the averments made in the complaint. The allegations in the complaint are grave. The recover, according to the prosecution, is of 2.050 kg of heroin which, according to the statement of Dilip Das, belonged to the petitioner. The question whether Sec. 42 of the NDPS Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced before the Special Judge. Prima facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for in-depth examination of this question. The contention that there is no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accused Dilip Das, also cannot be accepted, at this stage, when only cognizance has been taken and the petitioner is still to be interrogated. The question about corroborative nature of evidence may also have to be gone into at the appropriate state. The only other contention urged is about the lack of power of the Special Judge to issue warrant of arrest." Now considering the decision of the Hon ble Supreme Court in the case of Mohd. Malek Mondal (supra) and considering the facts of the present case, stage at which the proceedings are pending i.e. at the initial stage of the investigation, the contention on behalf of the respective applicants that the complaints are required to be quashed and set aside on the ground that except statements of the co-accused there is no material and/or evidence against the applicants, cannot be accepted. 9. 9. It is required to be noted that investigation was at the initial stage and the investigation was to be initiated/proceeded further on the basis of the statements of the co-accused and the allegations and averments in the complainants. Before even the investigation is carried out, the applicants have approached this Court and the Police Officers are restrained from further investigation. It is also required to be noted that in almost all the cases, the applicants are absconding and/or residing outside State of Gujarat. Unless and until the investigation is proceeded further; the respective applicants are interrogated and till the investigation is completed, it cannot be said that there is no material and/or evidence against the applicants. All these things are required to be considered after the investigation is completed and appropriate report and/or charge-sheet is submitted against the applicants and thereafter, the question is required to be considered whether the applicants are to be prosecuted or not. At the initial stage of investigation the respective complaints cannot be quashed and set aside solely on the ground that at this stage there are only statements of the co-accused which is inadmissible in evidence. Corroborative nature of evidence during the course of investigation and statements of co-accused can be considered at an appropriate stage. Under the circumstances, at the initial stage complainants cannot be quashed. It cannot be disputed that it is statutory right of the Investigating Officer to investigate the complainants and the offences and the Investigating Officer cannot be restrained from further investigation solely on the ground that at this stage only statements of the co-accused is available. In fact as per this Court statements of the co-accused, allegations and the averments in the complainants to that effect can be the basis for initiation of further investigation. 10. Under the circumstances, the prayer of the applicants at this stage to quash the complainants and stall the investigation at the initial stage cannot be accepted. All those submissions are required to be considered at an appropriate stage and not at the stage of investigation. The submission of the learned Advocates appearing on behalf of the applicant relying upon sec. Under the circumstances, the prayer of the applicants at this stage to quash the complainants and stall the investigation at the initial stage cannot be accepted. All those submissions are required to be considered at an appropriate stage and not at the stage of investigation. The submission of the learned Advocates appearing on behalf of the applicant relying upon sec. 25 of the Indian Evidence Act and Sec. 161 of the Criminal Procedure Code are also not required to be considered at this stage, the same can be considered at an appropriate stage after the investigation is completed and appropriate report/ chargesheet is filed and/or even at the time of trial.” 10. Quashing petition under Section 482 of Cr.P.C. is filed at an initial stage of FIR, investigation of alleged offence qua the petitioner is yet to commence in real senses. Question, thus arises that at initial stage, where any cognizable offence is disclosed in FIR, whether investigation can be thwarted by exercising inherent power under Section 482 of Cr.P.C. the Hon’ble Apex Court in the case of Skoda Auto Volkswagen India Private Ltd. v/ s. State of Uttar Pradesh [2020 SCC Online SC 958], in para 41 has held as under :- "41. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 , the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta v. State of Gujarat (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere." 11. The proceedings against the petitioner is initiated by way of impugned FIR on the basis of statement of co-accused, which pave the way for proper investigation by providing important link. Statement of co-accused during the investigation period is relevant under Section 10 of the Evidence Act, 1872 and provides a guiding path to investigation hence none of the petitioners are expugned from the statement of co-accused and that cannot be the reason to quash the FIR at the initial stage. Statement of co-accused can be taken as clue by Investigating Officer to proceed with investigation against the petitioner by registering the case against him. If any evidence or material is found during course of investigation in support of statement of co-accused, the petitioner would be liable for prosecution, otherwise prosecution would be dropped. In the present case, charge- sheet is not filed and therefore, it would be improper to quash the FIR at this stage. 12. In view of above, the petition is dismissed. Interim relief granted earlier, if any, stands vacated. 13. Before parting, it is observed that if ultimately, no material is found against the petitioner after completion of investigation and if charge-sheet is filed on the basis of statement of co-accused, then the petitioner is at liberty to file appropriate proceedings available under law challenging charge-sheet and to seek quashing of impugned FIR.