Gujarat High Court
Dashrathbhai Mangaji Marvadi vs State Of Gujarat on 6 March, 2025
NEUTRAL CITATION
R/CR.MA/5490/2014 ORDER DATED: 06/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5490 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 2114 of 2014
==========================================================
DASHRATHBHAI MANGAJI MARVADI
Versus
STATE OF GUJARAT
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Appearance:
MR NM KAPADIA(394) for the Applicant(s) No. 1
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/03/2025
ORAL ORDER
1. By way of this applications under Section 482 of the Code
of Criminal Procedure, 1973, the applicants have prayed to
quash and set aside the FIR being I-C.R.No.5239 of 2014 and
registered with Meganinagar Police Station, Ahmedabad for the
offences under Sections 66(b), 65(A),(E), 116(B) and 81 of the
Prohibition Act and all the consequential proceedings arising
therefrom.
2. The facts narrated in the petition are stated as under:
3.1 On 31.03.2014, on the basis of secret information raid was
carried out and from overhead tank situated on block no.9 of
slum quarters, stock of 180 bottles on Indian made foreign
liquor and 48 tins of beer were found. Hence, FIR is filed. In FIR,
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the petitioners are shown as wanted accused.
4. Heard learned advocates for the parties.
5. Learned advocate for the petitioner submitted that the
petitioners are falsely involved in the offence on the basis of
statement of co-accused recorded during investigation. It is
submitted that that during investigation of FIR, arrested accused
has given name of present petitioner and thus, name of the
petitioner has been arraigned in the FIR. It is submitted that
statement of co-accused is inadmissible in evidence and
therefore, on such inadmissible evidence, putting accused for
trial would be futile exercise and therefore, while relying on
following judgments, it is submitted to quash the proceedings.
(a) Vijaybhai Dhuralal Soni v/s. State of Gujarat [Criminal
Misc. Application No.5483 and 5596 of 2000]
(b) Dalpatsinh Shersingh v/s. State of Gujarat [Criminal
Misc. Application No.7167 of 2000]
(c) Dhansukhbhai Baalwantrai Modi v/s. State of Gujarat
[Criminal Misc. Application No.9542 of 2004]
(d) Girish H Trivedi v/s. State of Gujarat [Criminal Misc.
Application No.5776 of 2004]
(e) Shri Ishwarbhai Becharbhai Ahir v/s. State of Gujarat
[Criminal Misc. Application No.14106 of 2006]
(f) Kailash Govindram Rathi v/s. State of Gujarat [2008 (1)
GLR 750].
(g) Dalpatsinh @ DS Shersinh Rathod v/s. State of Gujarat
[Criminal Misc. Application No.4449 of 2008]Page 2 of 15
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(h) Darshrathbhai Mahaji Marvadi v/s. State of Gujarat
[Criminal Misc. Application No.15155 of 2013]
(i) Nareshbhai Devchansbhai Patel v/s. State of Gujarat
[Criminal Misc. Application No.2276 of 2014]
(j) Dilipsinh Kishorbhai Rathod v/s. State of Gujarat
[Criminal Misc. Application No.17096 of 2015].
(k) Santoshsinh Narendrasinh Chauhan v/s. State of Gujarat
[Criminal Misc. Application No.489 of 2015]
(l) Darshrathbhai Mangaji Marvadi v/s. State of Gujarat
[Criminal Misc.Application No.8528 of 2017]
(m) Chaudhari Ranjitbhai Harishingbhai v/s. State of Gujarat
[Criminal Misc. Application No.12622 of 2020]
6. Per contra, learned APP for respondent State submitted
that FIR is at initial stage and during investigation of FIR,
accused was arrested, in his statement, he has given name of
petitioners as supplier of liquor or liquor to be supplied to him.
In this circumstances, statement of co-accused is relevant in
proceeding further in investigation of offence. Therefore, he
submits that FIR at this stage should not be quashed and
investigating officer should be permitted to collect further
evidence on record.
6.1. Upon above submissions, it is submitted to dismiss the
petition.
7. Having heard learned advocates for the parties and
perusing record, it is undisputed that name of the petitioner is
revealed from the statement of co-accused who has been
arrested by IO in regard to investigation of aforesaid FIR. It is
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undisputed that statement of co-accused is not admissible in
evidence. It is required to be appreciated that investigation was
at initial stage and it was to be initiated to proceed further on
the basis of statement of co-accused. Allegations and averments
made in the complaint since found supported from statement of
co-accused, FIR cannot be quashed even before investigation is
carried. It is to be noted that the petitioners have approached
this Court at initial stage of investigation and police officers were
restrained from carrying out further investigation. Until and
unless, investigation is proceeded further, the petitioner are
interrogated and until investigation is completed, it cannot be
said that there is no material or evidence against the petitioners.
Statement of co-accused is relevant under section 10 of the
Evidence Act for the purpose of carrying out further
investigation. The contention raised by the petitioner that
statement of co-accused is not admissible evidence and
statement of co-accused cannot be admitted but during
investigation of offence, until investigation is completed and
report is submitted, question does not arise to consider whether
petitioner are to be prosecuted or not.
8. 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.
9. 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
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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. 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.
10. 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. InPage 5 of 15
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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.
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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 inadmissiblePage 7 of 15
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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. 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
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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. 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.
11. Recently, Co-ordinate Bench of this Court in the case of
Mansing Shakarlal (Damor) Mina v/s. State of Gujarat [2024(0)
AIJEL HC 247952], after taking into consideration divergent
views expressed by this Court in regard to involvement of the
accused in the offence on the statement of co-accused and after
relying on judgment of Hon’ble Apex Court in the case of the
Mohd. Malek Mondal v/s. Pranjal Bardalai [(2005) 10 SCC 608],
has held in para 6.1 to 7.9 as under :-
“6.1 To prop up her contention, she relied on a judgment of
the Apex Court rendered in the case of Mohd. Malek
Mondal v. Pranjal Bardalai and Another, (2005) 10 SCC
608. She also placed reliance on the judgment of this
Court rendered in the case of Firozbhai Hajibhai Sodha v.
State of Gujarat, which is an unreported judgmentPage 9 of 15
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rendered in Criminal Misc. Application No. 5836 of 2021
and also a judgment rendered in the case of Budhiyabhai
Somabhai Khalasi v. State of Gujarat, 2012 SCC OnLine
Guj 1300.
7. The facts of the case are absolutely not in
controversy. The other accused against whom the aforesaid
FIRs were registered, as per the prosecution story, they are
found to be in illegal possession of various types of liquor
and have been illegally transporting the same. They were
apprehended by the police and the contraband was seized
from their possession. When they were interrogated after
taking them into custody, during the course of
investigation, they revealed that the petitioner herein had
supplied the said various types of liquor to them. As
noticed supra, it is on the basis of the said statement of
the co-accused, the petitioner is now shown as one of the
accused in the above FIRs.
7.1 Now, the crucial question that arises for consideration
is whether the petitioner is entitled for quash of the FIR
registered against him on the sole ground that he was
shown as accused in all the above crimes only on the basis
of the statement given by the co-accused or not. According
to the petitioner, the said statement of co-accused is
inadmissible in evidence and he cannot be shown as
accused on the basis of the said statement of the co-
accused.
7.2 This Court has taken divergent views on the said
proposition of law. In some cases, this Court has taken a
view that registering FIR against a person solely on the
basis of the statement of the co-accused is not permissible
and that, the said FIR and the criminal proceedings
initiated thereon are liable to be quashed. The other
Coordinate Benches have taken a view that the statement
of co-accused serves as a clue to the Investigating Officer
regarding the role played by the said person in commission
of the said offence and when the case is at the
investigation stage, that the FIR and the criminal
proceedings initiated against him cannot be quashed and
held that, ultimately it is for the Investigating Officer either
to file the charge-sheet against him after collecting validPage 10 of 15
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evidence in proof of his complicity in commission of the
said crime or drop the proceedings if no other evidence is
available in proof of his complicity in the commission of the
said crime.
7.3 However, though there are divergent views expressed
by this Court, as discussed supra, the judgment of the
Apex Court in the case of Mohd. Malek Mondal (supra), is
relevant in the context to consider. In that case also, the
petitioner therein sought quash of the FIR registered
against him on the ground that there was no material
against him except the inadmissible, retracted statement,
allegedly made by the co-accused. The High Court, where
the said quash petition was filed, declined to quash the
criminal proceedings initiated against him. When the said
order of the High Court was questioned before the Apex
Court, the Apex Court did not accept the contention that
since the material only available on record was
inadmissible, retracted statement, allegedly made by the
co-accused that the petitioner is entitled for quash of the
criminal proceedings and thereby, upheld the judgment of
the High Court.
7.4 In another judgment rendered in the case of
Mohammed Farsin v. State, represented through the
Intelligence Officer, rendered in Criminal Misc. Application
No. 296 of 2014, the Supreme Court observed as under:
“…The confession of a accused gives a clue to the
investigating authorities as to how to investigate the matter
and against whom to investigate the matter. Thereafter, it
is for the Investigating Officer to collect the evidence
against the said person who has been named by the co-
accused….”
7.5 Thus, from the ratio laid down in the above judgment
by the Apex Court, the legal position is made clear that the
statement of coaccused can be considered and treated as a
clue or a piece of information to inquire or investigate as to
the role played by the said person in commission of the
said offence and if any satisfactory and reliable evidence or
material is found during the course of investigation in
support of the said statement given by the co-accused,
certainly, the said person against whom the said evidence
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is available, would be liable for prosecution. At the stage
when the investigation has commenced or the investigation
is going on, in the said facts and circumstances of the
case, it would not be proper to interdict the investigation or
to quash the FIR and the criminal proceedings initiated
thereon against the said person.
7.6 The same view was taken by this Court in the
judgment rendered in the case of Firozbhai Hajibhai Sodha
(supra). This Court in the said judgment has referred all
the earlier judgments of this Court rendered on the point
wherein this Court has held that the said statement of the
co-accused can certainly be taken as a clue by the
Investigating Officer and proceed with investigation against
the said person by registering the case against him and
that the proceedings cannot be quashed. This Court also in
the said judgment relied on the judgment of the Apex
Court rendered in the case of Kalyan Chandra Sarkar v.
Rajesh Ranjan Alias Pappu Yadav, (2004) 7 SCC 528, and
the above cited judgment in Mohammed Farsin‘s case and
held that the FIR and the criminal proceedings initiated
against a person on the basis of the statement of co-
accused cannot be quashed under Section 482 of the
CrPC.
7.7 In the present context, it is relevant to consider the
judgment of the Supreme Court in the above case of
Kalyan Chandra Sarkar (supra). In the said judgment,
Supreme Court clearly held that when the only other
evidence available to the prosecution to connect the person
with the crime is alleged confession of the co-accused
which according to the learned counsel was inadmissible
evidence, it is too premature to accept the said contention.
7.8 The Apex Court further held in the said judgment that
the admissibility or otherwise of the confessional statement
and the effect of evidence adduced by the prosecution and
the merit of the evidence that may be adduced by the
prosecution are all matters to be considered at the stage of
the trial.
7.9 Thus, though there are divergent views expressed by
this Court on the said proposition of law, in view of the
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authoritative pronouncements of the Supreme Court on
the point as discussed supra, which is the law of land and
binding on this Court, this Court has absolutely no
hesitation to hold that the proceedings against the
petitioner herein that are initiated by way of registering the
FIR on the basis of the statement of co-accused, cannot be
quashed in exercise of inherent powers of this Court under
Section 482 of CrPC. If ultimately, the Investigating Officer
finds material or evidence regarding the complicity of the
petitioner in commission of the said offence, certainly, he
would be liable for prosecution along with the other
accused. If no material is found on the said clue, certainly,
the Investigating Officer would drop the proceedings
against him at the time of filing final report before the
concerned Court. Therefore, the petitions are devoid of
merit and they are liable to be dismissed.”
12. At initial stage, whether cognizable offence is disclosed in
FIR, whether investigation can be thwart 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 SCCPage 13 of 15
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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.”
13. The proceedings against the petitioners are initiated by way
of impugned FIR on the basis of statement of co-accused and it
cannot be quashed under section 482 of Cr.P.C. at this juncture.
Statement of co-accused can be taken as clue by Investigating
Officer to proceed with investigation against the petitioners by
registering the case against them. If any evidence or material is
found during course of investigation in support of statement of
co-accused, the petitioners 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.
14. So far as judgments relied by learned advocate for the
petitioners is concerned, most of them are on the facts where, in
charge sheet no evidence connecting the accused with offence
was found, except statement of co-accused and would not render
any assistance to the petitioners.
15. In view of above, the petitions are dismissed. Interim relief
granted earlier, if any, stands vacated.
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16. Before parting, it is observed that if ultimately, no material
is found against the petitioners after completion of investigation
and if charge-sheet is filed on the basis of statement of co-
accused, then the petitioners are at liberty to file appropriate
proceedings available under law challenging charge-sheet and to
seek quashing of impugned FIR.
(J. C. DOSHI,J)
SATISH
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