Umarsharif Mohammad Hanif Ganchi vs State Of Gujarat

Dr. A. P. Thaker, J

Heard Mr.Adil Mirza, learned advocate for the petitioner and Ms.Maithili Mehta, learned Additional Public Prosecutor for the respondent â€" State

through Video Conferencing.

RULE. Ms.Mehta, 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

C.R.No.11215038200271 of 2020 registered with Vasad Police Station, District: Anand for the offences under Sections 65(E), 81, 83, 116(B) and

98(2) of the Gujarat Prohibition Act qua the present petitioner as well as all consequential proceedings thereof.

Mr.Mirza, learned advocate for the petitioner has vehemently submitted that the FIR being C.R.No.11215038200271 of 2020 has been registered

with Vasad Police Station, District: Anand for the offences under Sections 65(E), 81, 83, 116(B) and 98(2) of the Gujarat Prohibition Act. He has

further submitted that the petitioner has arraigned as an accused solely on the basis of the statement of the co-accused and no independent evidence

or any material available against the petitioner to connect with the crime. He has submitted that in view of the averments made in the petition, the FIR

and all consequential proceedings thereof may be quashed and set aside.

Per contra, Ms.Mehta, 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 and the same may be dismissed.

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.

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 co-accused. 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 co-accused. On perusal of the material on record, it appears that the present petitioner has been arraigned as an accused in the

alleged crime only on the state of the co- accused and there is no independent material against the petitioner to connect him with the alleged crime. It

is incumbent on the part of the Investigating Officer to collect other independent material to connect the present accused with the crime. But, in this

case, there is no any independent material, except the statement of the co- accused is available with the prosecution. 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 and the order passed by this Court in the case

of Ravi Shyamlal Dhobi Vs. State of Gujarat dated 17.08.2020 rendered in Criminal Misc. Application No.5307 of 2020, 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 C.R.No.11215038200271 of 2020 registered with Vasad Police Station, District: Anand for the

offences under Sections 65(E), 81, 83, 116(B) and 98(2) of the Gujarat Prohibition Act qua the present petitioner as well as all consequential

proceedings thereof are hereby quashed and set aside qua the present petitioner. The criminal proceedings may continue so far as other accused is

concerned. 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.