In a blow to former Assistant Solicitor General IH Syed, the Gujarat High Court Thursday hurt a plea seeking to quash the FIR against him alleging offences of extortion,, wrongful confinement among other charges. The court held that the plea is not maintainable before filing of the chargesheet and prima facie, observed that Syed and the other accused “are not cooperating (with) the investigating agency”.
In another plea moved by Syed before the Gujarat High Court seeking anticipatory bail, the court refused to grant interim protection from arrest after a lengthy hearing on Thursday and posted the plea for further hearing on June 7.
Syed, a designated senior advocate at the Gujarat High Court, had moved a petition on May 16 under Section 482 of the Code of Criminal Procedure (CrPC) which grants power to the high courts to quash FIRs. Syed sought to quash an FIR registered at the Pethapur police station in Gandhinagar on May 15 upon a complaint from an Ahmedabad-based businessman Viral Shah.
Shah in his complaint has alleged that he was called to former Gujarat Chief Minister Shankersinh Vaghela’s residence at Gandhinagar by his personal assistant Bhaumik Thakkar for signing a settlement agreement on a business dispute and upon attending the said meeting, Shah was allegedly threatened and pressurised to sign the agreement, was allegedly confined forcefully at the premises and assaulted after which the businessman managed to purportedly flee in his car.
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As many as six persons were named as accused in the FIR, including Syed, Thakkar and four others related with the business dispute and charges under IPC Sections 387 (putting person in fear of death to commit extortion), 389 (putting fear of accusation of offence to commit extortion), 120B (criminal conspiracy), 143, 149 (unlawful assembly), 147 (rioting), 323 (voluntarily causing hurt), 504 (provocation to break public peace), 506 (2) (criminal intimidation) and 342 (wrongful confinement) were slapped against them.
In the verdict pronounced on June 2 by the court of Justice Samir Dave, dismissing the quashing petition as not being maintainable under CrPC Section 482, it opined that the case is not fit for the court to exercise its powers.
Taking into consideration precedents laid down by Supreme Court judgments, the court opined that before filing of the chargesheet, the magisterial or criminal court has no material before it and therefore, a quashing petition under CrPC section 482 cannot be entertained. The court added quashing petitions filed before filing of chargesheet have to invoke the jurisdiction under Article 226 of the Constitution of India read with CrPC Section 482.
Rejecting claims of innocence made by Syed, the court observed that it is “premature and too early to open on the same without permitting the Investigating Agency to investigate the claims made in the FIR.” The court also recorded in its caveat judgment that Syed and the other accused “are not cooperating (with) the Investigating Agency in the investigation.”
Opposing Syed’s plea, the prosecution had argued that since registration of the FIR, Syed has not been available at his known places, his mobile phone has been found to be switched off and that considering Syed’s conduct, his unavailability and non-participation in the investigation , there are chances that he may tamper with evidences.
The court also recorded in its verdict that relying on the FIR, the claims are “very serious in nature” and the same are “required to be investigated by the Investigating Agency at this stage”, additionally observing that “without even giving the sufficient time , even to the investigating agency,…(Syed) has rushed to this court and has prayed to quash the criminal proceedings…The Investigating Officer must be given some reasonable time to investigate the allegations and to find out the veracity of the truth. Merely because the petitioner is an advocate is no ground not to permit the investigation agency into the claims made against him and to quash the criminal proceedings at the threshold…If the claims are found to be true, it is a very serious matter as being an And that too, a declared senior advocate is expected to be an upright and he is supposed to know the law. Therefore, at this stage, no interference of this Court…is called for and the Investigating Agency cannot be restrained in performing the statutory duties under the relevant provisions…”
Meanwhile, arguing for anticipatory bail before the court of Justice AC Joshi on Thursday, senior advocate Asim Pandya requested for interim protection from arrest for Syed till a final decision on the plea is taken, after arguing on prima facie circumstances of the case and submitting that the FIR by the complainant Shah. The request was not acceded to by the court, taking into consideration the primary observations made by Justice Samir Dave in his verdict dismissing the quashing plea.
Senior counsel Pandya also pointed out during the course of the arguments that in the past 15 days, Syed’s residence has been searched multiple times without a search warrant by the police and has also been raided, including a search at the wee hours of 4:45 am on June 1, where the police also took into custody Syed’s wife’s phone, along with an hour-long interrogation of advocate Aniq Kadri, who is the advocate-on-record in the litigations related to Syed, inquiring about Syed’s whereabouts.
Pandya submitted that Syed is ready to submit to investigation once the court strikes a balance between Syed’s rights as an individual and the police’s right to investigate. It was also pointed out that without interim protection from arrest, Syed’s reputation and his practice as a lawyer is at stake.
Seeking time to peruse the judgment dismissing Syed’s quashing petition, his advocates requested for further hearing next week. The court has posted the matter for further hearing on June 7.