R/CR.MA/5836/2021

ORDER DATED: 08/02/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 5836 of 2021

======================================================= FIROZ HAJIBHAI SODHA 

Versus

STATE OF GUJARAT 

======================================================= Appearance:

MR NIRAD D BUCH(4000) for the Applicant(s) No. 1 MRS. BHAVINI N. BUCH(5403) for the Applicant(s) No. 1 for the Respondent(s) No. 2

MR LB DABHI APP for the Respondent(s) No. 1

=======================================================

CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

Date : 08/02/2022

ORAL ORDER

1. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (for short, the ‘Code’), the applicant prays for quashing and setting aside the FIR being C.R.No.1120805500310/2020 registered with DCB Police Station, Rajkot City for the offence punishable under Sections 65(e), 116-B, 81 and 98(2) of the Gujarat Prohibition Act and under Sections 465, 468 and 471 of the Indian Penal Code. 

2. It is stated by the applicant that on the basis of the statement of the co-accused, the applicant has been implicated in the FIR in question and there is no material against the present applicant connecting him with the incident in question. The applicant has, therefore, urged that this application be allowed by quashing and setting aside the impugned FIR.

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3. On the other hand, learned APP has opposed this application and mainly contended that the statement of the co-accused can be considered during the course of investigation as a clue for further investigation and, therefore on this ground, the impugned FIR may not be quashed. Learned APP has placed reliance upon the order dated 17.09.2020 passed by this Court in Criminal Misc. Application No.11508/2020, wherein this Court has, after considering the reported decisions of this Court as well as the Hon’ble Supreme Court, dismissed the similar type of application. Learned APP has submitted that the issue involved in the present application is squarely covered by the said order. It is, therefore, urged that this application be dismissed.

4. Having heard learned APP and having considered the averments made in the memo of application including the material placed on record, it would emerge that the present application has been filed by the applicant only on the ground that the applicant has been falsely implicated only on the basis of the statement of the co-accused. However, it is pertinent to note that so far as the present applicant is concerned, till date the investigation is not over and, therefore, it is always open for the investigating agency to consider the statement of the co-accused for the purpose of further investigation.

5. Further as stated above, in similar type of aspect in case of Jignesh @ Jigo Jado Jagdishbhai

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Jarivala Vs. State of Gujarat in Criminal Misc. Application No.11508/2020 decided on 17.09.2020 this Court has observed in Paragraph Nos.6 to 10 as under,

“6. At this stage, it is relevant to note that this Court has observed in the case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:

“12………………………… It is pertinent to note

that the prosecution case rests

mainly on circumstantial evidence and

police has received a clue against

the present applicant from the

statement of co-accused, already

arrested. Irrespective of the fact

that statement of co-accused to

police is not admissible in evidence

before the Court, but police can

certainly consider that statement as

a clue while interrogating him

further or other persons arrested or

interrogated during the course of

investigation……………………………………………………………”

7. In another case of Dolatram Tekchand Harjani v. State of Gujarat, reported in 2013 (3) GLR 2133, this Court has considered similar contention and thereafter observed in para 9.10 to 9.13 as under:

“9.10 The said submission gives rise

to an issue viz. does it mean that on

the basis of, or in light of, a

statement of co-accused even

investigation cannot be initiated. On

this count, it comes out that while

raising the said contention, it is

conveniently overlooked that such

position or preposition does not mean

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that statement by a co-accused cannot

act as or cannot be even treated as a

piece of information or a clue to

initiate and conduct

inquiry/investigation so as to find

out whether there is any independent,

cogent, reliable and satisfactory

material/evidence which may support,

justify and provide cause for further

investigation or a charge-sheet and a

trial.

9.11 In present case, name of the

petitioner is disclosed / mentioned

in a statement of a co-accused with

reference to offence under Sections

307 and 120B of IPC and Sections

25(1)A and (b) and 27(1) of Arms

Act and therefore, police has

commenced investigation.

9.12 Against such investigation

process, the petitioner has taken out

present petition under Section 482 of

the Code and prayed that the

investigation process may be stopped

and it may be quashed. In support of

the said request, the aforesaid

contention is raised.

9.13 The position/preposition (raised

in light of the provision

under Section 25 of the Indian

Evidence Act) that a statement by 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

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or justify or provide reason for

continuing inquiry/investigation for

initiating further investigation. At

the stage when the investigation has

commenced or the process is going on

any occasion or any question of

treating or considering such a

statement as evidence does not arise

and that, therefore, it would not be

proper and just to terminate, i.e. to

direct the investigation officer to

close the investigation.”

8. Further, in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav, reported in (2004) 7 SCC 528, the Hon’ble Supreme Court has observed as under:

“The next argument of the learned

counsel for the respondent is that

prima facie the prosecution has

failed to produce any material to

implicate the respondent in the crime

of conspiracy. In this regard he

submitted that most of the witnesses

have already turned hostile. The only

other evidence available to the

prosecution to connect the respondent

with the crime is an alleged

confession of the co-accused which

according to the learned counsel was

inadmissible in evidence. Therefore,

he contends that the High Court was

justified in granting bail since the

prosecution has failed to establish

even a prima facie case against the

respondent. From the High Court order

we do not find this as a ground for

granting bail. Be that as it may, we

think that this argument is too

premature for us to accept. The

admissibility or otherwise of the

confessional statement and the effect

of the evidence already adduced by

the prosecution and the merit of the

evidence that may be adduced

hereinafter including that of the

witnesses sought to be recalled are

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all matters to be considered at the

stage of the trial.”

9. Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon’ble Supreme Court observed as under:

“…….The confessions of a co-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 officers

to collect evidence against the said

person who has been named by the co

accused…..”

10. From the aforesaid decisions, it would be clear that a statement of co-accused can be

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 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. At the stage when the

investigation has commenced or the process is

going on any occasion or any question of

treating or considering such a statement as

evidence does not arise and therefore it

would not be proper and just to terminate,

i.e. to direct the investigating officer to

close the investigation. It is also required

to be noted that the admissibility or

otherwise of the confessional statement can

be examined at the stage of trial and not at

the stage of investigation. Thus, Section 25

of the Evidence Act would come into play not

at the stage of inquiry/investigation but at

the stage of trial. 

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6. Thus, this Court is of the view that the present matter is squarely covered by the aforesaid order passed by this Court. Therefore, this Court is not inclined to exercise the powers under Section 482 of the Criminal Procedure Code, 1973 in favour of the present applicant at this stage.

7. Therefore, the present application is dismissed. However liberty is reserved to file fresh application before this Court after filing of the chargesheet if there is no material against him in the chargesheet papers.

(VIPUL M. PANCHOLI, J.) 

Gautam

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