A.C. Rao, J.:— By filing the present petition under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the FIR being C.R. No. I-142/2019 registered with Jamnagar City ‘A’ Division Police Station under Section 420, 465, 467, 467, 120-B and 34 of the Criminal Procedure Code.
2. Heard Mr. H.A. Dave, learned advocate for the petitioner. He has contained that the present petitioner is a practicing advocate since many years. The present petitioner is an advocate of the accused no. 1 - Jaysukh @ Jayesh Muljibhai Patel in many matters. On behalf of the original accused no. 1, a public notice was issued by the present petitioner in the newspapers for the land of the complainant. The petitioner had acted as per the information which has been given by his client Jaysukh @ Jayesh Muljibhai Patel, as professional. There is no conspiracy or alliance of the present petitioner with Jaysukh @ Jayesh Muljibhai Patel. Without any evidence, a bald statement has been made by the complainant in the FIR. He further submits that the present petitioner is innocent and the present petitioner cannot be held liable for the act of his client.
3. Heard Mr. L.B. Dabhi, learned APP for the respondent - State. He has submitted that FIR is a recent one and no breathing time has been given to the investigating agency to carry out the investigation as well as from the bare reading of the FIR, it is very clear that offence has been constituted. Hence, the petition may be dismissed.
4. On behalf of the respondent no. 2, learned advocate Mr. Mehul Sharad Shah has submitted that there are as many as 33 offences registered against the accused no. 1 - Jaysukh @ Jayesh Muljibhai Patel. He further states that the petitioner is aware about the activities of the co-accused because in the most of the proceedings, the present; petitioner is representing the accused no. 1 - Jaysukh @ Jayesh Muljibhai Patel. He further states that the accused no. 1 is in habit of giving such public notice without any contract with the landowner and thereby, he is in habit of grabbing lands of the landowners. The red-corner notice was also issued against the accused no. 1 and therefore, it is the duty of the present petitioner to inform the police, in-stead of it, he had issued a public notice so there is a serious fraud, which requires investigation. Learned advocate for the respondent no. 2 has also relied upon the judgment delivered by the Hon'ble Apex Court in the case of Dineshbhai Chandubhai Patel v. State of Gujarat reported in (2018) 3 SCC 104, wherein it is held that if the FIR discloses any prima-facie cognizable offence or not? High Court cannot act like an investigating agency and nor can exercise powers like an appellate Court and the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. Learned advocate for the respondent no. 2 is also relied upon the judgment delivered by the Hon'ble Apex Court in the case of Mosiruddin Munshi v. Md. Sirj reported in 2014 (0) GLHEL-SC 55414, wherein it is held that the accused does not have a title over the property and entered into the criminal conspiracy and fraudulently included the appellant to deliver the sum of Rs. 5,00,000/- with no intention to execute the sale deed. Under the facts and circumstances, the High Court cannot quash the complaint.
5. Considering the rival submissions, prima-facie, it is found that the present petitioner is a lawyer and only allegation against him is that he had issued a public notice. Petitioner is appearing for the co-accused in many matters, hence it is a matter of investigation whether the co-accused has any contract with the complainant or not? It is also a matter of investigation that whether the present petitioner has hatched any conspiracy or not? At this juncture, I am of the view that this application requires consideration.
6. Hence, notice be issued making it returnable on 19 th November, 2019, meanwhile, the investigation may be continued for the FIR being C.R. No. I-142/2019 registered with City ‘A’ Division Police Station, Jamnagar, but, no coercive steps should be taken against the present petitioner till the returnable date. Direct service is permitted.
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