IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 15557 of 2025 ==========================================================

HARISHCHANDRA CHOUDHARY & ORS.

Versus STATE OF GUJARAT & ANR.

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Appearance:

MR R N GHOTRA(2804) for the Applicant(s) No. 1,2,3 MS. HETAL N GAJJAR(14357) for the Applicant(s) No. 1,2,3 MR. H.K.PATEL, APP for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY Date : 01/12/2025

ORAL ORDER

1. The Petitioners / Original Accused have preferred this Petition under Article 226 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 for the prayer to quash and set aside the FIR Part ‘A’ 11196008250211 of 2025 for the offence punishable under Section 54, 115(2), 296(b), 351(2) of the Bharatiya Nyaya Sanhita, 2023 and Section 135 of the GP Act, 1955 dated 02/09/2025 registered with JP Road Police Station, Vadodara.

2. Heard learned Advocate appearing for the Petitioners and learned APP for the Respondent – State.

3. Learned Advocate Mr. Amit P. Soliya appears and state that he has received instructions to appear on behalf of the Original Complainant and he would be filing his appearance during the course of the day.

3.1 Registry to accept the Vakalatnama of learned Advocate Mr Soliya and place the same on record.

4. Learned Advocate appearing for the Petitioners has submitted that none of the Petitioners herein were present in the City of Vadodara on the day of incident. The Petitioners herein were in Jaipur and were attending a social function. The necessary photographs in that regard are produced on record. He also submitted that the Investigation Officer had verified these aspects and it was found that none of the Petitioners were present in Vadodara on the day of incident. He further submitted that Petitioner No1 is aged about 70 Years. The present FIR is nothing but an abuse of process of law as the FIR is nothing but a counterblast to the proceedings initiated by the Petitioners against the complainant. He therefore submitted to allow the present Petition and quash and set aside the FIR in question qua the Petitioners.

5. Learned Advocate has sought to rely upon the following judgments in support of his submissions:

(i) Dudh Nath Panday v. State of Uttar Pradesh - (1981) 2 SCC 166 (ii) Binay Kumar Singh v. State of Bihar – (1997) 1 SCC 283

6. Learned APP has opposed the present Application contending that, as per the settled legal position, the plea of alibi would require the Petitioners to adduce the evidence showing their absence in Vadodara on the day of incident. It would be possible only during the course of trial. As per the settled legal position, this Court cannot consider a plea of alibi while considering the Petition filed under Section 528 of BNSS. Moreover, upon perusal of the FIR, the ingredients for the offences alleged against the Petitioners are clearly made out against all the Petitioners. He therefore submitted to dismiss the present Petition.

7. Learned Advocate Mr. Amit P. Soliya appearing on behalf of the Original Complainant has also opposed the Petition contending that there is sufficient material collected by the investigating agency indicating a strong primafacie case against the Petitioners for having committed the offence in question. He therefore submitted to dismiss the present Petition.

8. Heard learned Advocate for the parties. The primary contention raised by the learned Advocate appearing for the Petitioners is with regard to the absence of the Petitioners in Vadodara, where the incident alleged in the FIR had taken place.

9. The Apex Court in its judgment in case of Rajendra Singh v. State of U.P. and anr. Reported in (2007) 7 SCC 378 has held:

“The plea taken by Respondent 2 in his petition under Section 482 of CrPC was that of alibi. No finding on a plea of alibi can be recorded by th