IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 1490 of 2023 ==========================================================

ASIF @ ASIF GANDO S/O MAHEBUB SHAIKH Versus STATE OF GUJARAT ==========================================================

Appearance:

MR HARSH A PRAJAPATI(11941) for the Applicant(s) No. 1,2,3 MR NARENDRA L JAIN(5647) for the Applicant(s) No. 1,2,3 for the Respondent(s) No. 2 MR JK SHAH, APP for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 02/02/2023

ORAL ORDER

1. Mr.Kishan Dahiya, learned advocate states that he has received instructions to appear for and on behalf of the respondent No.2 and he shall file his Vakalatnama before the Registry. Registry shall accept the same.

2. This Court has heard Mr.N.L. Jain, learned advocate for the applicants, Mr.Zubin Bharda, learned advocate for Mr.Kishan Dahiya, learned advocate for original informant and on advance copy, Mr.J.K. Shah, learned APP for the respondent-State.

3. By way of this application, the applicants are seeking quashment of the FIR registered with Mahidharpura Police Station, Surat for the offences punishable under Sections

384, 504, 506 and 114 of the Indian Penal Code and Sections 40(A)(B)(C) and 42(A)(D) of the Gujarat Moneylenders Act, 2011.

4. Mr.Jain would submit that the criminal proceedings initiated for private vendetta and with ulterior motive, he would further submit that this is third attempt on the part of the complainant to lodge an FIR. Earlier twice on the same facts, the complaint reiterating the contents of the questioned FIR was filed with Mahidharpura Police Station, Surat and considering the nature of dispute, the authority concerned did not lodge an FIR and it was ordered to be filed. It is in this context, it is submitted that despite filing of closure report by the police authority of the same Police Station, the questioned FIR is being filed which do not constitute any criminal offence nor make out the offence against the applicants, as alleged.

5. On the other hand, opposing the application, learned counsel Mr.Bharda would submit that the investigation is at the crucial stage and I.O. has not obtained the entire evidence and therefore, no case is made out to exercise inherent powers conferred by Section 482 of the Cr.P.C. He would further submit that the contents of the earlier complaint, having no any similarity with the facts of the questioned FIR and both the complaints are distinct and cause of action for filing the complaint is also not same.

6. Having regard to the facts and circumstances of present case, it appears that present questioned FIR for the alleged offence of extortion allegedly took place in the year 2006 for which FIR is registered on 24.01.2023. Record indicates that in the month of April-2022, present complainant – respondent no.2, submitted an application in the form of complaint to Surat Police Commissioner, for the alleged extortion, against four persons including the present applicants and same was transmitted to the P.I., Mahidharpura Police Station and it was registered as C.A. Application No.37/2022 and accordingly, PSI of Mahidharpura Police Station after due inquiry, did not register an FIR and it was ordered to be filed and closure report in this regard was intimated to the higher authority for further approval. Considering the contents of the earlier complaint and present questioned FIR, it appears that the police authorities had examined the allegations of extortion disclosed in the questioned FIR. Thus, it appears that the same police station, due to drive initiated by the police department, questioned FIR is being registered without being examining the earlier facts of complaint.

7. In such circumstances, the contentions raised by learned counsel Mr.Bharda cannot be accepted and therefore, let Rule be issued, returnable on 28.06.2023. Respondents waive service of Rule. Meanwhile, with th