NADIRKHAN BABAKHAN NAVABKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned A.P.P., Mrs.Hansa Punani, waives service of rule on behalf of the respondent-State in both the petitions. With the consent of learned counsel appearing for the respective parties, both these petitions are taken up for final hearing.

(2.) Both these petitions have been filed under Sec.482 of the Code of Criminal Procedure for quashing and setting aside the First Information Reports being C.R.No.II-3187 of 2002 lodged with the Danilimda Police Station and C.R.No.I-530 of 2002 lodged with Naroda Police Station and for deleting the name of the petitioner from the respective charge-sheets showing him as an absconding accused mainly on the ground that the only evidence available with the investigating agency is the statement of co-accused and also on the ground that the present petitioner is a social worker who has organized relief camp under the banner of Hajarat Shah-e-Alam Relief Camp at Ahmedabad and who has made grievance against the administration before various authorities and, therefore, mala fidely he has been involved in the offences in question.

(3.) An affidavit-in-reply has been filed by the Investigating Officer, Mr.K.R.Jadav, Assistant Commissioner of Police, "K" Division, Ahmedabad City, in Cri.Misc.Appln.No.2684 of 2003 contending inter alia that the petitioner has started criminal activities in 1996 and as on today, nine criminal cases were registered against him. According to him, in 1996, the petitioner was detained under PASA and in 1999 he was externed from adjoining four Districts of Ahmedabad. It is stated that offences punishable under Secs.143, 147, 148, 149, 307, 320 of IPC and Sec.135(1) of Bombay Police Act registered as C.R.No.53 of 1997 with Danilimda Police Station have been registered against the petitioner and other accused. In the said case which is numbered as Case No.214 of 2001 pending before the learned Addl. City Sessions Judge, Court No.7, Ahmedabad City, since the petitioner is not attending Court and is not available for trial, he was issued with a warrant and is absconding. It is further stated that in C.R.No.122 of 2002 registered with Maninagar Police Station for the offences punishable under Secs.302, 120-B and 114 of IPC, Sec.25(1) of Arms Act and Sec.135(1) of B.P.Act also, petitioner is shown as one of the accused and on registration of FIR, petitioner was absconding. It is further stated that present FIR being C.R.No.II-3187 of 2002 was registered for the offences punishable under Secs.25(1)(B) and 27 of the Arms Act against Mohmed Firoz @ Bakri Mustakin Shaikh and above accused was arrested on 15-6-2002 at 2015 hours during investigation. It is further stated that Mohmed Firoz was behind bars though confession was made by him of C.R.No.122 of 2002 of Maninagar Police Station for the offence under Sec.302 of IPC wherein present petitioner is one of the accused and the investigating officer, upon noticing the said fact, made an application before learned Metropolitan Magistrate for addition of Sec.120-B of IPC. It is further contended that since name of the petitioner was revealed in the statement of co-accused Mustak Aalambhai Parmar on 22-8-2002, offences under Secs.193, 196, 202, 217 and 221 of IPC were added in C.R.No.II-3187 of 2002. It is further contended that the petitioner compelled accused Mohmed Firoz with the help of Police Constable of Danilimda Police Station, Nasimkhan Ajijkhan Pathan to get rid of C.R.No.122 of 2002 registered with Maninagar Police Station and for which, Mohmed Firoz was caught with country made tamancha and one live cartridge in C.R.No.3187/2002 under Secs.25(1)(B) of Arms Act was registered against him and Mohmed Firoz has confessed to have committed the offence under Sec.302 of IPC in C.R.No.122 of 2002 of Maninagar Police Station wherein present petitioner is shown as accused and just to save the present petitioner, elibi was created by confession of Mohmed Firoz. It is further contended that this confession of Mohmed Firoz was made in order to get an acquittal order in favour of present petitioner from the trial Court for the offence under Sec.302 of IPC in Maninagar Police Station C.R.No.I-122 of 2002. It is further stated that commission of offence under Sec.302 of IPC of Maninagar Police Station C.R.No.I-122 of 2002 took place at 20.30 p.m. on 15-5-2002 which was registered at 3.30 a.m. on 16-5-2003. It is further stated that since accused Mohmed Firoz was behind bar in Danilimda Police Station C.R.No.82 of 2002 under Secs.143, 147, 148, 149, 336, 337, 435, 436, 188 of IPC and Sec.135(1) of B.P.Act for the period from 12-5-2002 to 16-5-2002, it is clear that Mohmed Firoz has not committed offence under Sec.302 of IPC registered as Maninagar Police Station C.R.No.122 of 2002 and though said offence has been committed by the present petitioner, accused Mohmed Firoz has been involved and his elibi was planned to be recorded. It is further contended that it has come out from the record pertaining to accused Mohmed Firoz kept at Sabarmati Central Jail that when the offence under Sec.302 of IPC of Maninagar Police Station C.R.No.I-122 of 2002 took place on 15-5-2002, accused Mohmed Firoz was behind bars at Sabarmati Central Jail and hence, confession made by Mohmed Firoz was to save the present petitioner. It is further contended that various criminal offences were registered against father of the present petitioner, late Shri Navabkhan and brother of the petitioner, Sharifkhan Navabkhan Pathan, Mahebubkhan Navabkhan Pathan, Nasirkhan Navabkhan Pathan and late Shri Ayubkhan @ Pappukhan Navabkhan Pathan. It is stated that petitioner is a gang operator in Shah-e-Alam area with the help of his family members and other criminal gang. It is ultimately stated that in view of the fact that petitioner is involved in various criminal offences and is avoiding trial, petitioner may be ordered to surrender himself to co-operate in the present case and hence, it is prayed that no relief may be granted in favour of the present petitioner.