Baldevsinh Satubha Jadeja vs State Of Gujarat

Dr. A. P. Thaker, J

Heard Mr. Mohsinkhan Koreja, learned advocate for the petitioner and Ms. Moxa Thakkar, learned Additional Public Prosecutor for the respondent

â€" State through Video Conferencing.

RULE. Ms. Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of rule for respondent â€" State. With the consent of

learned advocates for both the sides, rule is fixed forthwith.

The petitioner has filed the present petition under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR being Prohi

IIIÂC.R No. 178 of 2019 registered with Bhaktinagar Police Station, District: Rajkot for the offences under Sections 65(E), 116 (B) and 98(2) of the

Gujarat Prohibition Act qua the present petitioner as well as all consequential proceedings thereof.

Mr. Koreja, learned advocate for the petitioner has vehemently submitted that the FIR being Prohi IIIÂC.R No. 178 of 2019 is registered with

Bhaktinagar Police Station, District: Rajkot for the offences under Sections 65(E), 116

(B) and 98(2) of the Gujarat Prohibition Act against the present Petitioner on the basis of the statement of the co accused. According to him, the

petitioner is falsely implicated in the alleged offence. According to him, there is no evidence against the present petitioner for the alleged offence and

he has been implicated only from the statement of the coÂaccused. He has prayed to allow the present petition and quash and set aside the impugned

FIR.

4.1 Mr. Koreja, learned advocate for the petitioner has submitted the present petitioner has been shown as an accused only on the basis of the

statement of the co accused and the same is inadmissible under Section 25 of the Indian Evidence Act. He has submitted that the presence of the

petitioner at the place of the incident is not established and except the statement of the coÂaccused, there was no material against the present

petitioner for prosecuting him. While relying upon the decision in the case of Suresh Chhotalal Verma Vs. State of Gujarat, (2001) 2 GLR 1029, he has

urged to allow the present petition.

Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for the respondent â€" State has submitted that considering the materials

placed on record, the present petition may not be entertained.

It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the

complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are

likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers

are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The

Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court

would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.

The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the

averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do

not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be

quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be

examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal

ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.

A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary

for the offence.

Now, on perusal of the decision in the case of Suresh Chhotalal Verma (supra), more particularly the observation made in paraÂ5 needs to be

reproduced hereinabelow.

“5......... If this is the law then the statement of co accused during the investigation is neither prima facie evidence for the purpose of evidence

whatsoever nor it can be said to be material on which coÂaccused can be proceeded with. Of course, if there would have been some other material

on which revisionist could be proceeded with, the learned Special Judge could have been said to have been justified in rejecting the application but

simply on the strength of the statement of the coÂaccused recorded by the investigating agency under Section 161 of the Cr.P.C., it cannot be said to

be a material sufficient for proceeding against the revisionist......â€​

It is pertinent to note that the legal bar under Section 25 of the Indian Evidence Act that a statement of a co accused is not admissible in

evidence and, therefore, cannot be relied on, cannot be construed to mean that such statement cannot be even considered or treated as a clue or a

piece of information to initiate and conduct inquiry / investigation or to direct the investigation / inquiry in a particular direction. Such a statement can

be treated as a clue or piece of information and not evidence for initiating and conducting investigation / inquiry so as to find out as to whether there is

any independent, satisfactory and reliable material which may support or justify or provide reason for continuing inquiry / investigation for initiating

further investigation. Thus, the rule is well settled that the person facing charge of any offence can be proceeded with if there is other material

available on record in addition to the statement of the coÂaccused. The statement of the co accused can be used as clue for implicating the person

concerned as an accused. However, at the same time, there must be some other materials on record.

Now, considering the materials placed on record, the admitted fact is that the present petitioner has been arraigned as an accused only on the basis

of the statement of the coÂaccused. It is an admitted fact that except, the statement of the coÂaccused, there is no material against the petitioner to

connect him with the alleged crime. It is also admitted by the prosecution that there is no documentary evidence regarding call details between the

accused No.1 and the present petitioner on mobile phone of the petitioner which has been provided by the coÂaccused to the complainant, which

came to be reflected in the FIR itself. Thus, in the present case, the continuation of the proceedings against the petitioner is nothing but abuse of

process of law and it will be futile exercise. Therefore, in view of the aforesaid legal preposition and the materials placed on record, considering the

peculiar facts of the case, this Court is of the considered opinion that the present petition qua the present petitioner is required to be allowed.

In the result, the petition is allowed. The FIR being Prohi IIIÂC.R No. 178 of 2019 registered with Bhaktinagar Police Station, District: Rajkot for

the offences under Sections 65(E), 116 (B) and 98(2) of the Gujarat Prohibition Act as well as all consequential proceedings thereof are hereby

quashed and set aside qua the present petitioner. Rule is made absolute to the aforesaid extent.

Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.