Gujarat HC quashes 2019 FIR against advocate in attempt-to-murder case

Apart from the petitioner’s advocate, the FIR named several other persons as accused.

In the FIR, the complainant, Asaraf Shaikh, alleged that on December 10, 2019, he had gone to the Surat court to meet one of his friends who was to be brought there by the police. It was alleged that when Shaikh and his friends were standing in the passage on the third floor of the sessions court around 10 am, Kagazi came to them and threatened them to withdraw another criminal case registered by them earlier.

On learning about the registration of FIR against him, Kagazi made a representation to the police while raising various contentions, ‘more particularly’ about his absence at the third floor of the court at around 10 am, as mentioned in the FIR.

Eventually, concerned CCTC footage of the court was collected, which showed that the accused (advocate) was not present there at 10 am as alleged.

With a prayer to quash the FIR against Kagazi, his advocate at HC, Kashyap Joshi, argued before the court that the former has been wrongly implicated in the FIR by the complainant with an ulterior motive that he could not appear for other accused persons in the case.

Prosecution had opposed the petition while stating, among other things, that when the charge of criminal conspiracy has been invoked, it has to be tested during trial. The additional public prosecutor argued that there was enough material collected during the investigation to bring on record the complicity of the applicant in the case, like him staying in contact with other accused before the alleged incident.

Eventually, the court ordered to quash the FIR against Kagazi while observing in its judgment, “…the fact remains that when present applicant came to know that his name is also surfaced in the FIR, he immediately rushed to the police commissioner as well as the concerned investigation officer of Rander police station, Surat, contending that he has been falsely implicated. This fact is fortified from the fact that after the interference of the Hon’ble High Court, the investigating agency could lay their hands on the CCTV footage where the present applicant is not found ‘present’ in the passage/balcony on the third floor of the court. Therefore, the very initiation of the FIR on the ground that the present applicant threatened the complainant at 10:00 O’clock, when he was present to meet his friend…who was to be brought by the police party, is falsified.”

“It is relevant to note that this Court would be no(t) keen to enter into conducting the mini trial, however, when the specific case of alibi has been raised by the present applicant and the CCTV footages…falsify the claim of the complainant having talked with the applicant at 10:00 O’clock in the passage on the third floor of the District Court Surat. The present exercise has been undertaken to see that no innocent person is wrongly implicated,” it added.

Negating some other issues raised by the prosecution and while quashing the FIR against Kagazi, the court observed, “…having found that present applicant was not present at the scene of offence and was also not visible at the District Court, Surat, as alleged by the complainant from the CCTV footage, the said aspect would itself demolish the very basis of the FIR against the present applicant which can be evaluated even at the stage of quashing as held by the Supreme Court in the case of Sajal Bose vs. State of West Bengal and others.”
The court eventually ordered to quash the FIR against the advocate while also noting the absence of any corroborative material against him and the material relied upon by the investigating agency itself falsifying the case of the prosecution.

The complainant in the case remained absent in the court, though a notice was served on him.