CR.MA/5487/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5487 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================= = 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 ? ========================================= = DINESH JAGABHAI RABADIYA Versus HARISH KERAIYA NILEKENI & 2 ========================================= = Appearance : MS NIRALI B MUNSHI for Petitioner MR JV MEHTA for Respondent No.1 DELETED for Respondent No.2 MR LB DABHI APP for Respondent No.3 - State ========================================= = CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 27/08/2008 ORAL JUDGMENT CR.MA/5487/2000 2/8 JUDGMENT [1] The present petitioner, who was original accused No.2 in Criminal Case No.1062/2000 in the Court of learned 2nd Joint Civil Judge (S.D.) & Judicial Magistrate, First Class, Jamnagar filed the present petition under Section 482 of the Criminal Procedure Code (for short “Cr.P.C.) to quash and set aside the proceedings of the charge-sheet bearing No.53/2000 on the basis of C.R.No.597/1999 registered with Jamnagar “B” Division Police Station which is registered as Criminal Case No.1062/2000. [2] Heard learned advocate Mr.B.P.Munshi for the petitioner and learned APP Mr.L.B.Dabhi for the respondent No.3 – State. Learned advocate Mr.J.V.Mehta for the respondent No.1 is absent. The respondent No.2 is deleted. [3] Learned advocate Mr.B.P.Munshi for the petitioner – original accused No.2 of the aforesaid Criminal Case has submitted that the respondent No.1 herein, who was original informant lodged a police complaint on 21.11.1999 in Jamnagar “B” Division Police Station alleging the offence punishable under Section 406 of the Indian Penal Code that the CR.MA/5487/2000 3/8 JUDGMENT respondent No.1 herein had purchased one Jeep bearing No.NH-04-AA-4110 at the price of Rs.3 Lacs and the original accused No.1 Surendra Raghav Shetti who was respondent No.2 herein who was deleted from the petition approached respondent No.1 herein and expressed his desire to run the Jeep on hire basis and upon such promise being given by the original accused - Surendra Raghav Shetti, the jeep was entrusted him on 03.08.1999 on payment of monthly hire charge at the rate of RS.10,000/-; that subsequently, the accused Surendra Raghav Shetti did not pay any rental charges though the respondent No.1 herein demanded the same for several times. Thereupon, the respondent No.1 lodged the aforesaid criminal complaint before the police against the original accused No.1 - Surendra Raghav Shetti (the respondent No.2 who was deleted from the petition). It is submitted that considering the FIR as it is, nowhere the name of the petitioner is mentioned as an accused person and nowhere the respondent No.1 – original informant alleged any offence in his FIR punishable under Section 411 of the Indian Penal Code. That as per the police case, subsequently by drawing the panchnama on 21.01.2000 in presence of panchas, the Jeep was recovered from the possession of the present petitioner. That thereby in the charge-sheet filed by CR.MA/5487/2000 4/8 JUDGMENT the police in the Court of learned Judicial Magistrate, First Class, Jamnagar, as accused No.2, the name of present petitioner is mentioned in connection with the offence punishable under Section 411 of the Indian Penal Code. The copy of the charge-sheet is produced at page-10 of the petition and considering the same, it appears that as accused No.1, the name of respondent No.2 herein who was, subsequently, deleted from the proceedings of this petition is mentioned and it is alleged in the charge-sheet that the offence punishable under Section 406 of the Indian Penal Code was committed by him, and the present petitioner who was accused No.2 in the said charge-sheet had recovered the possession of the Jeep from the accused No.1 knowing that accused No.1 Surendra Raghav Shetti had obtained the possession of the said Jeep illegally. It is submitted that so far as the present petitioner is concerned, he was alleged to have committed the offence punishable only under Section 411 of the Indian Penal Code. That though no allegation was levelled by the present petitioner for any offence whatsoever, but simply because by drawing panchnama, the Jeep was alleged to have been recovered from the possession of the petitioner, the petitioner was wrongly implicated as co-accused in the said Criminal Case. It is further submitted that the Investigating Officer CR.MA/5487/2000 5/8 JUDGMENT committed a serious illegality in filing the joint charge-sheet against both the accused. Learned advocate for the petitioner has vehemently submitted that the entire dispute is outright of civil nature and the original informant, respondent No.1 herein misused the process of the Court by invoking criminal jurisdiction and, therefore also, this is a fit case that the criminal proceedings be quashed qua the present petitioner. Therefore, it is submitted that the present petition is required to be allowed and the proceedings of Criminal Case No.1062/2000 is required to be quashed and set aside qua the present petitioner. [4] Learned APP Mr.L.B.Dabhi for the respondent No.3 – State has submitted that as admitted by the petitioner, after the conclusion of the police investigation in connection with the FIR lodged by the respondent No.1, herein, the police has filed the charge-sheet in the Court of learned Judicial Magistrate, First Class, Jamnagar. It is submitted that even the petitioner has produced the copy of the said charge-sheet along with the present petition. It is submitted that considering the charge- sheet, the names of two accused are mentioned and the accused No.2 happens to be petitioner herein and as per the police case, it is alleged against the petitioner, accused No.2 CR.MA/5487/2000 6/8 JUDGMENT that he received the stolen property and committed an offence punishable under Section 411 of the Indian Penal Code. Therefore, it is submitted that when the investigation was completed and charge-sheet was filed, that too in the year 2000, instead of entering into the merits of the case, this is a fit case wherein if the petitioner so desires, he may move the concerned Court of learned Judicial Magistrate, First Class for his discharged. It is submitted that after the lapse of eight years, if the powers vested to the Hon'ble Court under Section 482 of the Cr.P.C., is not exercised in favour of the petitioner and the petitioner is relegated to the Court of learned Judicial Magistrate, First Class for taking appropriate action, it would meet the ends of justice. Learned APP has further submitted that this Court did not grant any interim relief till date in favour of the petitioner and, therefore, the investigation was not stayed and the police filed the charge-sheet and, therefore, there was no stay even with regard to the further proceedings of the Criminal Case No.1062/2000. Therefore, considering this fact along with the times slot of eight years, it would not be desirable now to exercise the power under Section 482 of the Cr.P.C., by deciding this case on merits. [5] Without entering into the merits of this case and the CR.MA/5487/2000 7/8 JUDGMENT allegations levelled either in the FIR or in the charge-sheet, in light of the submissions made by the learned APP, it appears that it would not be desirable now to decide this petition on merits under Section 482 of the Cr.P.C. Admittedly, from the very inception of this petition till the date, no interim relief staying the further proceedings of Criminal Case No.1062/2000 was granted and the period of eight years has been elapsed. Unfortunately, we do not know the present status of the said Criminal Case. Under such circumstances, instead of entering into the merits of the case and without touching the merits, it would be just and proper, if the petitioner who is original accused No.2 in the aforesaid Criminal Case, is directed to move the concerned Court of learned Judicial Magistrate, First Class for appropriate order by way of filing appropriate application. [6] In light of the above discussion, the petitioner, if so desires may move the concerned Court of learned Judicial Magistrate, First Class where the Criminal Case No.1062/2000 is pending, for appropriate action and order, by way of filing appropriate application. Considering the fact that the Criminal Case is pending since the year 2000, the learned Judicial Magistrate, First Class is directed to dispose of the said case at CR.MA/5487/2000 8/8 JUDGMENT the earliest preferably within a period of three months from the date of the receipt of the writ of this order. Accordingly, the present petition stands disposed of. Rule is discharged. [J. C. UPADHYAYA,J.] (vijay)