Gujarat High Court
Zala Shatrushalyasinh Ramubha vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
R/CR.MA/11910/2019 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11910 of 2019
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ZALA SHATRUSHALYASINH RAMUBHA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DARSHIL KAMDAR, ADVOCATE FOR MR ASHISH M DAGLI(2203) for
the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 03/01/2025
ORAL ORDER
1. Rule returnable forthwith. Mr. Manan Mehta, learned APP
waives service of notice of rule for respondent no.1 – State.
The respondent no.2 although served with the notice issued by
this Court, yet has chosen not to appear before this Court
either in person or through an advocate and oppose this
application.
2. By this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicant-original accused
person seeks to invoke the inherent powers of this Court
praying for quashing of the F.I.R. being C.R.No.I-37 of 2019
registered with the Joravarnagar Police Station, District-Rajkot,
for the offence punishable under Sections-385, 506(2), 114 of
the I.P.C. read with Sections-5, 33(3), 38, 40 42 of Gujarat
Money Lending Act.
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3. The case of the prosecution can be summarized as
under:-
3.1 It is the specific case of the complainant that he is
residing in a joint family and is engaged in the business of sale
and purchase of land and for that purpose, he was in need of
money and therefore, he has borrowed different amounts from
several persons. He borrowed before 2 & 1/2 years, an amount
Rs.2,25,000/- at the rate of 10% interest from one Manubhai
Rabari; an amount of Rs.3 lakhs at the rate of 5% interest from
Kanubhai Patel; before 03 years, an amount of Rs.11,000/- at
the rate of 10% interest from Nanubhai Himatlal Vanand and
before 3 years, an amount of Rs.1,20,000/- from Sejpalsinh
Zala; before 10 months, amount of Rs.2,60,000/- with 6% rate
of interest from Merabhai Rabari and Maheshbhai and before
04 years, an amount of Rs.20,000/- at the rate of 10% from
Vihabhai Rabari; before 05 months, an amount of Rs.15,000/-
at the rate of 10% from Harji Rabari; before 05 years, an
amount of Rs.1,65,000/- at the rate of 20% interest from Arif.
Therefore, as per the case of prosecution, from the persons
from whom he has taken amount on interest, in spite of
making payment of the interest, the principal amount was
frequently demanded and thereby, abusing the complainant as
well as physically harassment was meted out to him and
therefore, he has shifted along with his family at Ratanpar.
That due to physical harassment, on 26.4.2019 the
complainant had consumed some substance and then-after
taken to the hospital, where he stated about the harassment
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and therefore, the FIR came to be filed.
4. Heard Mr. Darshil Kamdar, learned advocate who appears
on behalf of Mr. Ashish Dagli, learned advocate for the
applicant and Mr. Manan Maheta, learned APP for the
respondent – State.
5. Mr. Darshil Kamdar, learned advocate for the applicant
submits that in-fact, the FIR is filed against total 09 accused
persons, wherein, the name of the present applicant is
mentioned at Sr.No.04. He further submits that immediately
after registration of the FIR, the applicant has approached this
court and considering the charge of accusations/allegations
levelled against the present applicant, a co-ordinate bench of
this Court has taken cognizance of the fact of the matter and
issued notice to the complainant as well as Investigating
Officer with specific direction that no coercive action should be
against the applicant, however, the Investigating Officer was
directed to carry out investigation further in accordance with
law. He further submits that in-fact, due to timely treatment
given by the concerned doctor, the complainant is survived
and therefore, Section-306 is not added in the body of the
complaint. Pursuant to the FIR, the Investigating Officer had
carried out the investigation and at the end of day, a charge-
sheet has submitted qua rest of the accused persons before
the concerned court. He further submits that in-fact, during the
pendency of the investigation, the original complainant has
passed away in a natural circumstances, but the statement of
the complainant has not been recorded by the Investigating
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Officer, so far as compilation of charge-sheet filed by the
Investigating Officer against other co-accused are concerned.
He further submits that in-fact, the accused no.9 is also passed
away and therefore, the proceedings qua him is also declared
as abated. He further submits that then-after, due to paucity of
time, or one or the another reason, this application could not
have been heard, but during the interregnum period, the trial
court has proceeded with the proceedings of trial by leading
cogent evidence and at the end of the day, after considering
and appreciating all the materials available on record, the
order of acquittal has already been passed. He has already
produced a copy of the said order and submitted that the
persons against whom, very serious charge of accusations
levelled by the complainant in the FIR have been declared
acquitted solely on the ground that the prosecuting agency has
miserably failed to prove the charge levelled against the
accused persons. He further submits that in-fact, the
accusations levelled against the applicant is lesser than the co-
accused and therefore, the prosecution instituted present
applicant-accused is required to be quashed and set aside. He
further submits that even otherwise on basis of allegations
levelled in the complaint are to be read as it is in its entirety,
even though it can be safely said that no offence could be said
to be have been made out against the present applicant-
accused. Hence, the prosecution instituted against the
applicant-accused is required to be quashed. He has put
reliance upon the case of Anant Mishra @ Amit Mishra @
Surya Prakash Mishra Vs. State of U.P. and Another
reported in 2022 LiveLaw (All) 148 and submitted that the
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view adopted by the Hon’ble Allahabad High Court is squarely
applicable to the facts available on record. He further submits
that after considering and appreciating the testimony of the
witnesses, if co-accused have been acquitted, in that event, on
the basis of same set of evidence, no further criminal
proceedings can be sustained against the co-accused. He
further submits that during the pendency of the investigation,
the complainant himself has passed away and the
Investigating Officer had not recorded further statement of the
complainant and except the complainant, nobody-else is aware
about the factual aspect of money transaction took place
between the accused and the complainant. Therefore,
considering the above-stated factual aspect, the prosecution
instituted against the applicant-accused is required to be
quashed.
6. Mr. Manan Maheta, learned APP appearing on behalf of
the respondent – State has objected the present application
with a vehemence and submitted that immediately after
occurrence of the incident, the complainant was taken to the
hospital for the purpose of getting treatment and he had made
first disclosure statement before the doctor and therefore, the
Police Officer was called for in the hospital and he had made
statement before the Police Officer and on the basis of which,
the FIR has been filed. If the Hon’ble Court would go through
the contents of the FIR, in that event, it would be found out
that very serious allegations were levelled against the
applicant – accused. So far as the charge of money lending is
concerned, even the present applicant is not having the license
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of money lending and therefore, the Investigating Officer is
directed to submit charge-sheet against the accused persons
as there is ample evidence against the present applicant is
found out. Mr. Maheta, learned APP fairly conceded that in-fact,
the evidences collected by the Investigating Officer so far as
the co-accused are concerned, are identical and similar in
nature. He further submits that during the pendency of the
proceedings, the trial Court has proceeded with the trial and at
the end of day, the order of acquittal has been passed and
therefore, considering the above-stated factual aspects,
appropriate order may be passed.
7. Having heard learned advocates for the respective
parties and on perusal of the contents of the complaint, the
issue falls for my consideration is as to whether the case is
made out for invoking inherent powers of this Court?
8. At this stage, I may refer to the parameters laid down by
this Court for quashing of an FIR in the case of State of
Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters
are:-
“(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 offence or make out a case against
the accused.
(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.
(3) Where the uncontroverted allegations made in the
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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.
(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.
(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.
(6) Where there is an express legal bar en-grafted 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.
(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.”
Therefore, this Court is of the view that the case of the
present applicant falls within the parameters.
9. In the case of R.P. Kapur v. State of P(unjab, AIR
1960 SC 866 : 1960 Cri LJ 1239, the Hon’ble Apex Court
summarised some categories of cases where inherent
power can and should be exercised to quash the
proceedings :
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
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(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
10. I have gone through the record and proceedings and also,
considering the arguments canvassed by the learned
advocates for the respective parties, I have found from the
record that as the charge of accusations levelled against the
accused, the record reveals that due to proper treatment
given in time by the doctor, fortunately, the complainant is
survived from the effect of poisonous substance and therefore,
the Investigating Officer concerned has not added Section-306
of the IPC. At this juncture, I would like to put reliance upon
decision rendered in the case of Anant Mishra @ Amit
Mishra @ Surya Prakash Mishra Vs. State of U.P. and
Another reported in 2022 LiveLaw (All) 148. The relevant
paragraph of the said judgment as under:-
“In the matter of Diwan Singh (Supra), this was the issue
that if allegation & witnesses are same and after
examination of witnesses one accused is acquitted, then
other co-accused can be punished or not. This Court has
clearly held that under such circumstances the conviction of
co-accused cannot be sustained. Relevant paragraph Nos. 4,
5 & 6 of the judgment of Diwan Singh (supra) are quoted
here-in-below:-
“4. Learned counsel for the applicant has argued that
both Manohar and the applicant were arrested together,
searched together and as a single recovery list was
prepared about the articles alleged to have been
recovered from them and as the same witnesses were
examined. by the prosecution in both the trials beforePage 8 of 10
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the Magistrate, it will be incongruous to convict one of
them on the basis of the same evidence and to acquit
the other. I find force in this contention,
5. The judgment of the learned Sessions Judge in
Criminal Appeal No. 262 of 1963 setting aside the
conviction and sentence of Manoliar was not challenged
by the State by filing an appeal and, as such, has
become final. It is no doubt true that the learned
Sessions fudge acquitted Manohar on a technical
ground because, in his opinion, “the prosecution suffers
from a patent infirmity creating reasonable doubt
regarding the identity of the alleged fire arms”. He did
not disbelieve the evidence of the prosecution on facts.
The reasoning given by the learned Sessions Judge in
acquitting Manohar is not very appealing but the fact
remains that Manohar who was arrested along with the
applicant on the same charge and against whom the
same evidence has been produced by the prosecution,
has been acquitted, while the appeal of the applicant
against his conviction was dismissed by the learned 1st
Additional Sessions Judge of Etawah. In view of the
acquittal of Manohar on the same facts and on the
same evidence which has become absolute, it is not
possible to maintain the conviction of the applicant.
6. If two persons are prosecuted, though separately,
under the same charge for offences having been
committed in the same transaction and on the basis of
the same evidence, and if one of them is acquitted for
whatever may be the reason and the other is convicted,
then it will create an anamalous position in law and is
likely to shake the confidence of the people in the
administration of justice. Justice is not only to be done
but also seem to be done. Therefore, I am clearly of
opinion that as has been held in the case of Pritam
Singh v. State of Punjab. (S) AIR 1956 SC 415, the
principle of stare decisis will apply in the present case
and the applicant’s conviction cannot be sustained.”
11. After going through the judgments relied by learned
advocate for the applicant, it is very much clear that Court has
held that considering the testimony of witnesses, if one
accused is acquitted, no criminal proceeding can be sustained
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against co-accused on the same set of evidences and
witnesses and in the present case on hand, there is no
separate witness and co-accused was acquitted by the learned
trial court and therefore, criminal proceeding cannot be
permitted to continue against the applicant. It is further
pertinent to note here that the complainant is passed away
during the pendency of the trial. It is also noted that the trial is
proceeded with against the co-accused and at the end of day,
the order of acquittal passed by the court concerned by
acquitting them from the charges levelled against them. The
charge of accusations levelled against present applicant-
accused are similar in nature of co-accused and therefore, this
court is of the opinion that no offence is made out against the
applicant- accused and hence, the prosecution launched
against him is required to be quashed and set aside.
12. For the foregoing reasons, I am inclined to allow this
application and the same is accordingly allowed. The F.I.R.
being C.R.No.I-37 of 2019 registered with the Joravarnagar
Police Station, District-Rajkot, is hereby ordered to be quashed
so far as the present applicant is concerned. All consequential
proceedings pursuant thereto shall stand terminated.
Rule is made absolute to the aforesaid extent. Direct
service is permitted.
(DIVYESH A. JOSHI,J)
A. B. VAGHELA
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