1. The present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner-original accused no. 1 to quash and set aside the impugned order dated 30/05/2011 passed by the learned 3rd Additional Senior Civil Judge & J.M.F.C., Surat below Exh. 6 as well as the judgment and order dated 06/06/2011 passed by the learned 3rd Additional Sessions Judge, Surat in Criminal Revision Application No. 192/2011 by which the application submitted by the petitioner-original accused no. 1 to discharge him and/or set him free qua the Complaint/FIR filed against the petitioner, being C.R. No. I 15/2011, registered with the Athwalines Police Station for the offence punishable under Sections 420, 465, 467, 468, 471, 504, 506(2), 120-B and 114 of the Indian Penal Code has been rejected.
2. A Complaint/FIR has been lodged against the petitioner-original accused no. 1 and other eight accused persons by respondent no. 2-original complainant at Athwalines Police Station, being C.R. No. I 15/2011 for the offence punishable under Sections 420, 465, 467, 468, 471, 504, 506(2), 120-B and 114 of the Indian Penal Code. It appears that original accused nos. 8 and 9, the subsequent purchasers of the disputed land in question, preferred Criminal Miscellaneous Application No. 3346/2011 before this Court to quash and set aside the impugned Complaint qua them. The aforesaid Criminal Miscellaneous Application came up for hearing before the learned Single Judge and respondent no. 2-original complainant appeared through his advocate and it was jointly submitted by the learned advocates appearing on behalf of the parties that the matter is settled between them and the settlement has been entered into between the original accused nos. 8 and 9 and the original complainant, which was placed on record and, therefore, it was requested to quash and set aside the said Complaint/FIR. Considering the above, the learned Single Judge allowed the said Criminal Miscellaneous Application and quashed and set aside the Complaint/FIR, being C.R. No. 15/2011. Subsequently, the petitioner-original accused no. 1 submitted the application, Exh. 6 before the learned trial Court to enlarge him free from judicial custody by submitting that as this Court has quashed and set aside the said Complaint/FIR in toto, the Complaint is not in existence. The said application came to be dismissed by the learned trial Court against which the petitioner-original accused no. 1 preferred Criminal Revision Application No. 192/2011 before the learned Sessions Court, Surat, which also came to be dismissed by the learned revisional Court by impugned judgment and order. Hence, the petitioner-original accused no. 1 has preferred the present Special Criminal Application.
3. Shri N.D. Nanavati, learned Senior advocate appearing on behalf of the petitioner has made only one submission that as the learned Single Judge vide judgment and order dated 06/05/2011 in Criminal Miscellaneous Application No. 3346/2011 has quashed and set aside the FIR/Complaint in toto, the entire FIR has gone against other accused persons, inclusive of the petitioner, and, therefore, the criminal proceedings against the petitioner-original accused no. 1 cannot be continued and, therefore, it is submitted that both the Courts below have materially erred in not enlarging the petitioner free from judicial custody. By making the above submissions, it is requested to admit/allow the present petition. No other submissions have been made.
4. Having heard Shri Nanavati, learned Senior advocate appearing on behalf of the petitioner-original accused no. 1 and considering the papers of Criminal Miscellaneous Application No. 3346/2011, which were called from the Registry, the prayer of the petitioner-original accused no. 1 to enlarge him free from judicial custody on the aforesaid ground cannot be accepted. It is to be noted that the aforesaid Criminal Miscellaneous Application No. 3346/2011 was preferred by original accused nos. 8 and 9, who were the subsequent purchasers, and the matter came to be settled between the original complainant and accused nos. 8 and 9 the subsequent purchasers only and a settlement was entered into by which original accused nos. 8 and 9 agreed to cancel the sale deed in their favour, which was alleged to have been fraudulently executed by original accused no. 1 and it was submitted that they will not claim any right, title or interest in the disputed land in question and, therefore, the original complainant entered into settlement and agreed that the Complaint against accused nos. 8 and 9 be quashed and set aside and, therefore, the learned Single Judge in view of the settlement entered into between the original complainant and original accused nos. 8 and 9 passed an order to quash and set aside the impugned Complaint/FIR. By no stretch of imagination it can be said that the impugned Complaint/FIR has been set aside by this Court qua other accused persons also when only accused nos. 8 and 9 approached this Court by way of aforesaid Criminal Miscellaneous Application and requested to quash and set aside the FIR/Complaint in view of the settlement between the original complainant and original accused nos. 8 and 9. When the learned Single Judge has quashed and set aside the Complaint/FIR the same would be qua original accused nos. 8 and 9 only and it cannot be said that the learned Single Judge has quashed and set aside the Complaint/FIR in toto qua all the accused persons.
5. Under the circumstances, no illegality has been committed by the Courts below in rejecting the application of the petitioner to enlarge him free from judicial custody. It is to be noted that so far as the petitioner is concerned, he is the main accused, i.e. original accused no. 1 and, therefore, the submissions on behalf of the petitioner-original accused no. 1 that in view of the order passed by this Court in Criminal Miscellaneous Application No. 3346/2011 quashing and setting aside the FIR/Complaint in view of the settlement arrived at between original complainant and original accused nos. 8 and 9, the petitioner-original accused no. 1 be enlarged free from judicial custody on the ground that the entire Complaint/FIR has been quashed qua other accused persons also has no substance and cannot be accepted.
6. In view of the above, there is no substance in the present petition and the same deserves to be dismissed and is accordingly dismissed.
(M.R.
SHAH, J.) siji Top