CR.MA/8725/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8725 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHIKHUBHAI JAIRAMBHAI PATEL - Applicant(s) Versus PRAKASHBHAI AMRUTBHAI DESAI & 1 - Respondent(s) ========================================================= Appearance : MR HARDIK A DAVE for Applicant(s) : 1, MR RC KODEKAR APP for Respondent(s) : 1, MR DHIRAJ M PATEL for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/09/2008 ORAL JUDGMENT 1. RULE. Mr.RC Kodekar, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1-State and Mr.Dhiraj Patel, learned CR.MA/8725/2008 2/6 JUDGMENT advocate waives the service of notice of rule on behalf of the respondent No.2. 2. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing today. 3. Present petition under sec.482 of the Code of Criminal Procedure is filed by the petitioner - original accused No.1 for quashing and setting aside the F.I.R. being CR No.I-36 of 2008 registered with Mahuva Police Station for the offences punishable under secs. 465, 467, 468, 506(2), 387, 511 and 114 of Indian Penal Code. 4. The petitioner herein was the owner of the land in question. The said land was sold by the petitioner to the father of the complainant by registered sale deed dtd.17/3/2006 for a consideration of Rs.3,80,000. It appears that there was a dispute between the petitioner and other co-accused regarding the said land and even one Special Civil Suit No. 2 of 2002 was also filed by the petitioner against the other co-accused for declaration and permanent injunction pertaining to the disputed land, which is still pending. In the meanwhile, as stated above, the petitioner sold the land in question to the father of the complainant. It appears that the other co-accused CR.MA/8725/2008 3/6 JUDGMENT named in the F.I.R., were trying to dispossess the complainant and his father by submitting that the land in question has been sold to them by the petitioner and threatening the petitioner and his father and therefore, the respondent No.2 – complainant had lodged the FIR being CR No.I-36 of 2008, against the petitioner and other co-accused for the offences punishable under secs.465, 467, 468, 506(2), 387, 511 and 114 of Indian Penal Code. Hence, the petitioner has preferred the present application under sec.482 of the Code of Criminal Procedure to quash the aforesaid FIR. 5. Mr.Hardik Dave, learned advocate appearing on behalf of the petitioner - original accused has submitted that even on bare perusal of the First Information Report it does not disclose any offence against the petitioner for the alleged offences. It is submitted that as such in the complaint itself it is specifically mentioned that other co- accused were even threatening the petitioner. It is submitted that considering the averments and allegations in the complaint, all the allegations are against the other co-accused and still the petitioner has been arraigned as an accused in the said complaint. It is submitted that to continue with the aforesaid criminal complaint against CR.MA/8725/2008 4/6 JUDGMENT the petitioner would be nothing but abuse of process of law as no offence is disclosed against the petitioner. It is further submitted that it is not the case of the complainant that the petitioner is saying that he has sold the land in question to other co-accused. It is submitted that as such other co-accused are alleging that the father of the petitioner has sold the land in question to them. It is submitted that the petitioner and/or his father has never sold the land to the other co-accused. Submitting accordingly it is requested to quash the First Information Report in exercise of the powers under sec.482 of the Code of Criminal Procedure. 6. Mr.Dhiraj Patel, learned advocate appearing on behalf of the respondent No.2 – original complainant has tried to oppose the present petition, however, he is not in a position to satisfy the court with report to any allegation against the petitioner – original accused No.1 in the complaint. He is also not in a position to dispute that in fact in the complaint itself it is specifically mentioned that other co-accused were threatening the petitioner. 7. Mr.R.C. Kodekar, learned Additional Public Prosecutor for the State has requested to pass appropriate order considering the averments and allegations in the CR.MA/8725/2008 5/6 JUDGMENT complaint. 8. Having heard the learned advocate appearing on behalf of the respective parties and having considered the averments and allegations in the complaint, this Court is of the opinion that no case is made out against the petitioner – original accused No.1 for the alleged offences. All the allegations are made against the other co-accused. On the contrary, it is specifically averred in the complaint that other co-accused were threatening the petitioner. As there are no allegations against the petitioner and as the First Information Report does not disclose commission of any of the offences by the petitioner, to continue with the criminal proceedings on the basis of the said First Information Report against the petitioner would be abuse of process of law. Under the circumstances, the First Information Report qua the petitioner – original accused No.1 deserves to be quashed and set aside. 9. For the reasons stated above, the petition succeeds. The impugned First Information Report being CR No.I-36 of 2008 registered with the Mahuva Police Station qua the petitioner herein – original accused No.1 named Bhikhubhai Jairambhai Patel only, is quashed and set CR.MA/8725/2008 6/6 JUDGMENT aside. Rule is made absolute accordingly. Ad-interim relief granted earlier stands vacated forthwith. Now, the aforesaid First Information Report against the other co- accused be investigated by the concerned investigating officer in accordance with law. [M.R. SHAH, J.] rafik