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CR.MA/14671/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14671 of 2009
======================================================
VIJAY
R ZALA & 8 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
======================================================
Appearance :
MR
YN OZA, SR.ADV. with MR
DHARMESH R PATEL for Applicant(s): 1-11.
MS CM SHAH APP for
Respondent(s) : 1,
None for Respondent(s) :
2,
======================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/02/2010
ORAL
ORDER
This
is a successive petition. Earlier this very petitioners had
approached this Court by filing Criminal Misc. Application
No.11645/2009. After detailed hearing on 27.11.2009, it was not
impressed by the contentions of the petitioners that no case is
disclosed in the complaint and that this is a fit case for quashing.
At that stage, learned counsel for the petitioners had sought
permission to withdraw both petitions with a view to approach the
authority to place on record their contentions that though actual
work was done, payment was not made. On that basis, the petition
stood disposed of as withdrawn. It was further observed in Para No.2
that before closing, in pursuant to order dated 6.11.2009, I
record that submission of the counsel for respondent no.2 that if
any Government Officers are prima facie found to have committed any
offence in connection with the present episode, appropriate action
will be taken against them also.
At
this stage, now the petitioners seek to approach this Hon’ble Court
again with a request for quashing of the complaint stating inter
alia that that on 27/11/09 the matter came to be withdrawn
because of severe pressure on the petitioners and assurance given by
the respondent no.2 to take action against the responsible
Government officers.
Learned
Senior Advocate for the petitioners at the outset stated that the
above quoted portion of the petition ought not to have been part of
the pleadings. He, therefore, sought and has been granted permission
to delete the said portion. In any case, he could not point out
under which pressure and circumstances, the petitioners were
compelled to withdraw the petition against their wish.
It
thus remains establish that the petition was heard at length and
when the Court was not inclined to accept the contentions on merits,
same was withdrawn with a limited liberty to approach appropriate
authority to place on record certain contentions. No liberty was
reserved to approach the Court again.
In
that view of the matter, unless some change in circumstances is
pointed out, I do not find it appropriate to rehear the same
contentions on merits. Learned counsel for the petitions sought to
submit that after two months of the passing of the said order, no
further evidence is collected by the Investigating Agency against
the petitioners and further that there is audit report, which would
indicate that the petitioners have not committed any offence. He
relied on the decision in case of S.M.S. Pharmaceuticals Ltd., V/s
Neeta Bhalla & Anr. reported in (2007)4 SCC 70, wherein it is
observed that the principles of res judicata are not attracted. In
the said case however, it was also observed that contention that
second application was not maintainable was not raised before the
High Court.
In
any case in the present case, I do not see any change in
circumstances. No time limit was provided to the Investigating
Agency to complete the investigation. Availability of some so called
audit report would also not be a change in circumstance. At best,
the existence of audit report would be a factor to be examined by
the Investigating Agency and not by this Court in quashing petition.
Such audit report is not even produced in the present proceedings
and only copy thereof was tendered at the time of submissions.
Even
otherwise on merits also, as in the previous innings, I do not find
any case for quashing of the complaint. There are allegations
against the petitioners of having committed serious offences under
the Indian Penal Code. Complaint if read as a whole and the
allegations made therein are accepted to be true, it cannot be
stated that no offences are disclosed. At the request for the
petitioners, I refrain from making any further observations on the
merits.
In
the result, the petition fails and is dismissed.
(AKIL
KURESHI,J.)
/patil
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