Partly allowed

Dilipbhai @ Musabhai Abdulgani Vohra v. State of Gujarat

Gujarat HC17 Feb 2022SCR.A/4003/2013

Case brief

AI extract

What is this about?

The High Court considered a petition to quash FIR and chargesheet proceedings qua the petitioner, who was named as an accused but against whom no specific overt act or material evidence for commission of offence was found despite detailed scrutiny of charge-sheet papers.

What did the court decide?

The impugned FIR (C.R. No.I- 127 of 2013) and all subsequent proceedings arising therefrom are quashed qua the present petitioner.

Dilipbhai @ Musabhai Abdulgani Vohra Vs State of Gujarat — Quashing and FIR | Gujarat HC (2022)

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 4003 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1 Whether Reporters of Local Papers may be allowed to see theNo
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgmentNo
?
4 Whether this case involves a substantial question of law as to theNo
interpretation of the Constitution of India or any order made
thereunder ?
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DILIPBHAI @ MUSABHAI ABDULGANI VOHRA
Versus

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STATE OF GUJARAT & 1 other(s)

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Appearance:

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MR SK BAGGA(5891) for the Applicant(s) No. 1

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MR MAHESH POOJARA FOR MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2

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MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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Date : 17/02/2022

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ORAL JUDGMENT

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Heard learned Advocate Shri S.K. Bagga on behalf of the petitioner and learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1- State and learned Advocate Shri Mahesh Poojara on behalf of respondent no.2- original complainant.

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Page 1 of 6

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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By way of this petition, the petitioner seeks quashment of FIR being C.R. No.I- 127 of 2013 registered with Anand Town Police Station on 26.07.2013 for the offences punishable under Sections 465, 467, 471 and 34 of the Indian Penal Code.

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Briefly stated the allegation in the complaint being that the accused had prepared a false and fabricated document to show that a pathway was passing through the land of the original complainant. Learned Advocate Shri Bagga would draw the attention of this Court to the averments made in the FIR and would submit that except for having named the present petitioner with other accused as being responsible for preparing the forged deed no specific averments is alleged in the FIR against the present petitioner. Learned Advocate Shri Bagga would also take this Court through the charge-sheet papers and would submit that as in the FIR, the present petitioner has been arraigned as an accused by merely stating that he was one of the persons responsible for preparing the documents. Learned Advocate Shri Bagga would submit that neither the FIR nor the chargesheet discloses any offence whatsoever as having been committed by the present petitioner. He would therefore submit that in view of such a position, the impugned FIR and subsequent proceedings may be quashed qua the present petitioner.

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The present petition is vehemently contested by learned Advocate Shri Poojara for learned Advocate Shri Dagli. Learned Advocate would submit that prima facie allegations of committing cognizable offence had been levelled against the petitioner in the FIR. Learned Advocate would submit that upon investigation, the Investigating Officer has filed the charge-sheet where the present petitioner has been arraigned as an accused. Learned Advocate would submit that under such circumstances, since charge-sheet has already been filed and the petitioner having been named

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Page 2 of 6

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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therein this Court may not interfere by exercising extraordinary jurisdiction. Learned Advocate would submit that it would be open for the petitioner to either file an appropriate application for discharge or the present petitioner would also have an appropriate opportunity to prove that he is in no way connected with the alleged crime once the trial starts and is concluded. Learned Advocate Shri Poojara would therefore submit that this Court may not exercise extraordinary jurisdiction in favour of the present petitioner.

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Upon a specific query by this Court as to material as found in the charge-sheet documents, whereby present petitioner would be arraigned as an accused, though the learned Advocate Shri Poojara attempted to take this Court through the charge-sheet papers in detail but could not point out as any material whereby the present petitioner could be connected in any manner with the alleged crime in question.

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This petition is also opposed by learned APP who would reiterate the submission made by learned Advocate Shri Poojara and would submit that since serious allegations have been levelled in the FIR and since chargesheet has been filed by Investigating Officer naming the present petition as an accused, this Court may not interfere with the proceedings.

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Again a very specific query by this Court to show any material which would connect present petitioner with the offence in question or which would show any overt act done by the present petitioner whatsoever, learned APP though having taken this Court through the charge-sheet papers in detail could not point out any such aspect.

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Heard learned Advocates for the parties who have not submitted anything further.

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From the submissions of the respective learned Advocates, without

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Page 3 of 6

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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delving much into the facts, it is clear that while the FIR as well as the charge-sheet naming the present petitioner as an accused, while no overt act is attributed to the present petitioner nor material has been found against the petitioner by the Investigating Officer after the investigation. That the Court having been taken through the charge-sheet papers in detail, could not find any material whatsoever, which would connect present petitioner in the alleged crime in question.

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At this stage this Court would seek to rely upon decision of the Hon’bleSupreme Court in s case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 more particularly paragraph no. 102 thereof wherein the Hon’ble Apex Court has given categories of cases by way of illustrations where this Court would be justified in quashing the impugned complaints/ FIRs in exercise of extraordinary jurisdiction as available to this Court under Article 226 of the Constitution of India and inherent powers available to this Court under Section 482 of the Code of Criminal Procedure. Paragraph No.102 of the said decision being the relevant paragraph is quoted hereinbelow for benefit:

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"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases 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 formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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

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Page 4 of 6

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(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.

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(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.

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(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.

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(7) Where a criminal proceeding is manifestly attended with malafide 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."

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Illustrations No. (1) and illustration no. (3) in the judgement of the Hon’ble Apex Court which states regarding allegations made in the first information report or complaint being taken at their face value not prima facie

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Page 5 of 6

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R/SCR.A/4003/2013 JUDGMENT DATED: 17/02/2022

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constituting any offence against the accused and illustration no. (3) which states with regard to uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same not disclosing the commission of any offence or making out a case against the accused would be applicable to the facts of this case. Even if the allegations levelled in the FIR are taken as true and correct then also the FIR does not mention any role or any act done by the present petitioner. Furthermore even in the charge-sheet papers, there is no material which would show commission of any offence by the present petitioner.

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Having regard to the same relying upon observations of the Hon’ble Apex Court in the considered opinion of this Court the present petition deserves consideration.

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The impugned FIR being C.R. No.I- 127 of 2013 registered with Anand Town Police Station on 26.07.2013 for the offences punishable under Sections 465, 467, 471 and 34 of the Indian Penal Code and all subsequent proceedings arising therefrom, are quashed qua the present petitioner herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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It is clarified that this order is passed qua present petitioner only and whereas learned Trial court taking up trial arising from the impugned FIR shall not be influenced by the observations made by this Court in the present order.

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(NIKHIL S. KARIEL,J)

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NIRU

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Dilipbhai @ Musabhai Abdulgani Vohra v. State of Gujarat

Case brief

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Dilipbhai @ Musabhai Abdulgani Vohra v. State of Gujarat

Case brief

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