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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