DHARMESH PANCHAL Vs. STATE OF GUJARAT & ANR

JUDGEMENT

(1.) By filing the present Application under Section 482 of the Code of Criminal Procedure, 1973 ["CrPC" for short], the applicant-original accused has sought quashment of the FIR, being CR-II No. 3037 of 2013 lodged on 2nd March 2013 before Shahibaug Police Station, Ahmedabad for the offence punishable under Sections 294 [C] and 223 IPC. Brief facts of the case are - respondent no.2-org. complainant, when was arrested and in custody of Police at Shahibaug Police Station in connection with FIR which was lodged against him and two others for the offence punishable under Sections 498A, 323 and 114 IPC, being C.R No. I-13 of 2013 on 23rd February 2013, during his custody was slapped by some persons who came alongwith his daughter-in-law, when the complainant was standing on the backside lobby of the Shahibaug Police Station. According to the complainant, the said unknown person who accompanied his daughter-in-law is the applicant herein. Pursuant to the said incident, the respondent no.2 herein lodged an FIR, being C.R No. II- 3037 of 2013 before Shahibaug Police Station on 2nd March 2013 against unknown person for the offence punishable under Section 294 [C] and 223 IPC. Apropos the said complaint, applicant has been summoned on 31st March 2013 by the Police Inspector, Shahibaug Police Station under Section 160 CrPC to appear before him on 2nd April 2013. Hence, the present application seeking quashment of FIR as well as summons issued u/s. 160 CrPC. Heard learned advocate Mr. Jal S. Unwalla appearing for the applicant; learned APP Mr. KL Pandya for the respondent no.1-State and Mr. Jayesh A. Kotecha, learned advocate for the respondent no. 2.

(2.) It was vehemently argued by learned advocate Mr. Jal S. Unwalla appearing for the applicant that the respondent no. 2 has lodged a false complaint against the applicant, as he is an advocate of his client-Vaibhavi Jayesh Panchal. He has further argued that on 20th January 2013, his client-Vaibhavi J. Panchal had lodged a complaint before Shahibaug Police Station, being I-C.R No. 13 of 2013 for the offence punishable under Sections 498A, 323 read with Section 114 IPC and for the offence punishable under Sections 3 & 7 of the Dowry Prohibition Act against three accused viz., Jayesh Bharatbhai Panchal [Husband]; Taraben Bharatbhai Panchal [mother-in-law] and Bharatbhai Kalidas Panchal [father-in-law]. That, being an advocate, he accompanied the complainantVaibhaviben just to assist her in lodging the complaint, and therefore, keeping in mind the grudge, the respondent no. 2 lodged a false complaint against him before Shahibaug Police Station, being C.R No. II-3037 of 2013 for the offence punishable under Section 294 and 223 IPC. As per averments made in the complaint, in connection with previous complaint lodged by his daughter-in-law on 23rd February 2013, he was arrested by Shri K.C Patel, Police Sub Inspector and when he was standing in the backside of the lobby in Shahibaug Police Station, suddenly daughter-in-law viz., Vaibhavi and one stranger [who can be identified by him on seeing him] came there and abused him and also slapped him, and on raising a hue and cry, daughter-in-law of the complainantVaibhaviben and the said stranger left the police station premises. Learned advocate Mr. Unwalla pointed out that the Investigating Officer Shri KC Patel thereafter produce the accused before the Court and he was released on bail. However, on the same day he was arrested in connection with an offence punishable under Section 498A IPC. He was afraid of the complainant and from stranger and therefore, no complaint was lodged immediately. Learned advocate further argued that while the respondent no. 2 was in police custody, it was not possible to attack any person by slapping him on his chick or to abuse him in any manner; as stated in the complaint. According to the learned advocate Mr. Unwalla appearing for the applicant, it is nothing but a counter blast of the complaint lodged by daughter-in-law of the respondent no.2 and the present petitioner being a practicing advocate, assisted her in lodging the complaint has been falsely implicated in the complaint filed by the respondent no.2 herein. That he had received a notice under Section 160 CrPC asking him to remain present before the Police. That, the present petitioner if is arrested by the Police, his prestige would be heavily damaged as he has not committed no offence, as stated in the impugned FIR. According to learned advocate, entire story is concocted and got up by the respondent no. 2. Even the name of the present petitioner is not mentioned in the impugned complaint, and therefore, issuing notice to the applicant is erroneous and requires to be quashed and set-aside. In support of his arguments, learned advocate has placed reliance upon two decisions of the Apex Court rendered in case of Anjani Kumar v. State of Bihar & Anr., 2008 2 GLH 423, and in case of D.P Gulati, Manager Accounts-M/s. Jetking Infotrain Limited v. State of Uttar Pradesh, 2015 AIR(SC) 3760. He also sought to place reliance upon a decision rendered by this Court in case of Jay @ Kano Jagdishbhai Sharma v. State of Gujarat, reported in 2015 JX (Guj) 500. Lastly, Mr. Unwalla, learned advocate for the applicant urged the Court to quash and set-aside impugned FIR [at Annexure "A"], being C.R No. II-3037 of 2013 registered with Shahibaug Police Station, Ahmedabad dated 2nd March 2013 for the offence punishable under Section 294-C and 223 IPC alongwith summons [Annexure "C"].

(3.) Per contra, learned APP Mr. KL Pandya appearing for the respondent-State in his submissions strongly opposed the application and urged that prima facie involvement of the present applicant is made out from the complaint, though the name of the present applicant is not disclosed in the complaint. But, whatever be the act or crime so committed, as alleged, clearly made out a case against the applicant. That, the present applicant was present at Shahibaug Police Station, Ahmedabad on 23rd February 2013, and therefore, he was called by the Police to inquire about the incident and if need be, he may be taken into custody by the police. According to learned APP, investigation is yet to be carried out by the Police and at this juncture, no powers under Section 482 CrPC be exercised in favour of the applicant-accused either in the matter of stalling the investigation or even his arrest by the Police. Hence, it was requested by learned APP to dismiss the present Application.