Natvarlal Badarmal Sheth vs State of Gujarat

Honourable Mr. Justice M.R. Shah

The present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure has been preferred by the applicant-original accused to quash and set aside the impugned FIR, being CR No. I 25 /1999 registered with ACB Police Station, Ahmedabad (Rural) for the alleged offence punishable under Sections 5(1)(a) and 5(2) of the Prevention of Corruption Act, 1947 and under Sections 13(1)(e) and 13(2) of the Prevention of the Corruption Act, 1988.

At the outset, it is required to be noted that as such during pendency of the present proceedings as there was no stay of further investigation, the Investigating Officer has concluded the investigation and having found prima facie case against the applicant, the applicant has been chargesheeted. It is also required to be noted that thereafter the applicant submitted an application before the learned Magistrate for discharge u/s 227 of the Code of Criminal Procedure, which came to be dismissed by the learned Magistrate against which he already preferred Revision Application before this Court and it is reported that the said Revision Application is already heard by the learned Single Judge and the order is awaited. In view of the above, this Court asked the learned advocate appearing on behalf of the applicant how the present Criminal Miscellaneous Application is now maintainable.

To the aforesaid, Shri Nikhil Kariel, learned advocate appearing on behalf of the applicant has heavily relied upon the decisions of the Hon''ble Supreme Court in the case of G. Sagar Suri and Another Vs. State of U.P. and Others, as well as in the case of Dhariwal Tobacco Products Ltd. and Ors. v. State of Maharashtra and Anr reported in (2009) 2 SCC 370. It is submitted that as observed by the Hon''ble Supreme Court in the aforesaid decisions the availability of alternative remedy of filing the Revision could not be a ground to dismiss the application u/s 482. It is submitted that even as observed by the Hon''ble Supreme Court in the case of G. Sagar Suri and Anr (Surpa) High Court can exercise powers u/s 482 of the Code of Criminal Procedure when the application for discharge of the accused is pending with the trial Judge and, therefore, it is requested to consider the present application u/s 482 of the Code of Criminal Procedure on merits.

Having heard Shri Nikhil Kariel, learned advocate appearing on behalf of the applicant and considering the submission made on behalf of the applicant, to consider the present application u/s 482 of the Code of Criminal Procedure on merits cannot be accepted. It is to be noted that in the present case subsequently the applicant came to be chargesheeted and not only that the applicant submitted the application before the learned Magistrate for discharge u/s 227 of the Code of Criminal Procedure and having found prima facie case for trial, the learned Magistrate has rejected the said application and has refused to discharge the applicant-original accused and against which the applicant had already preferred Revision Application before this Court, which is already heard and awaited for judgment. It appears that the learned advocate appearing on behalf of the applicant had not requested the learned Single Judge to hear the said Revision with the present application and it appears that he has argued the said Revision Application independently and he has already taken a chance. The applicant cannot be permitted to ride on two horses and cannot be permitted to continue with two parallel proceedings before one Court with respect to the very offence.

Under the circumstances and in the facts and circumstances of the case narrated hereinabove and in view of the subsequent development, the present application u/s 482 of the Code of Criminal Procedure is not required to be considered on merits and/or cannot be considered on merits by this Court now.

Now so far as the decision of the Hon''ble Supreme Court in the case of G. Sagar Suri and Anr (Supra) relied upon by the learned advocate appearing on behalf of the applicant is concerned, at the outset it is required to b noted that in the case before the Hon''ble Supreme the discharge application of the accused was pending before the learned trial Court and to that the Hon''ble Supreme Court held that the High Court can consider the application u/s 482 of the Code of Criminal Procedure despite the fact that the application of discharge of the accused is pending before the learned trial Court. In the present case, the application for discharge of the accused is not pending with the learned trial Court. On the contrary the learned Magistrate has dismissed the said application against which the Revision Application is preferred by the applicant, which is already heard by the learned Single Judge of this Court and, therefore, on fact,s the aforesaid decision would not be of any assistance to the applicant.

Now so far as the reliance placed upon the decision of the Hon''ble Supreme Court in the case of Dhariwal Tobacco Products Ltd. is concerned, on facts the same shall not be applicable to the facts of the present case. It is not the question of alternative remedy now. In the present case, the alternative remedy is already availed by the applicant-accused and the discharge application is rejected against which the Revision Application is preferred by the applicant, which has been considered by the learned Single Judge on merits and the order is awaited.

In view of the above facts and circumstances of the case and the subsequent development, this Court is not inclined to consider the present application on merits. Hence, the present application deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.