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CR.MA/14650/2005 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14650 of 2005
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SHRI
ASHWINBHAI HARMANBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
PRADEEP PATEL for Applicant(s) : 1,
Mr.D.C. SEJPAL, ADDL PUBLIC
PROSECUTOR for Respondent(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 18/01/2010
ORAL
ORDER
This
is the second round of litigation. The petitioner has come before
this Court praying that,
8(a) Your
Lordships may be pleased to pass appropriate orders and/ or direction
by exercising powers under s.482 of the Code of Criminal Procedure
quashing and setting aside the charge sheet filed in the trial court
against the petitioner in the criminal case registered as no.(I) 430
of 2003 on 3.12.2003 in the Anand Town Police Station, after
declaring the complaint as well as proceeding undertaken in form of
filing charge sheet against the petitioner as illegal and clear abuse
of process of law.
Earlier,
the petitioner had approached this Court by filing Criminal Misc.
Application No.1409 of 2004 which was disposed of by this Court
(Coram: Hon’ble Mr.Justice P.B. Majmudar) by order dated 5th
December 2005, which reads as under:
By filing
this application, the applicant has prayed that FIR being C.R.No. (I)
430 of 2003 registered before Anand Town Police Station be quashed
and set aside, as the applicant, who himself has brought to the
notice of the society the irregularities going on is unfortunately
tried to be booked as an accused.
Mr.Patel,
learned advocate for the applicant submitted that during the pendency
of this application charge sheet is filed. Therefore, he submitted
that he may be permitted to amend the application by placing
appropriate material and also by amending the prayer.
In my view,
since charge sheet is filed, the original prayer has become
infructuous. Under the circumstances, instead of granting amendment
the appropriate course available to the applicant is either to apply
for discharge or to file appropriate application calling in question
the proceedings pending before the Court.
In order to
take appropriate remedy as pointed above, Mr.Patel, learned advocate
for the applicant wants permission to withdraw this application.
Permission is
granted with a liberty as prayed herein above. Accordingly, this
application is disposed of as withdrawn. Notice is discharged.
2. Heard
learned advocate Mr.Patel for the petitioner. Mr.Patel invited
attention of the Court to a letter dated 23rd May 2001,
which is produced at Annexure ‘B’. It is addressed to one Shri
Prabhudas, described as Chairman, Sarvodaya Cooperative Credit
Society Limited, Anand by the petitioner. In the letter it is
mentioned that when the said Chairman was away from India for a
period of one month and 21 days, the petitioner was required to
shoulder the responsibility of managing the society (Sarvodaya
Cooperative Credit Society Limited, Anand). The letter refers to
various difficulties, faced by the petitioner and also the
irregularities noticed by him while managing the society.
It
is surprising that the petitioner complained to the person, who
according to him is responsible for those irregularities. The
complaint ought to have been made, to the appropriate authority,
about the irregularities noticed by the petitioner.
It
is the case of the petitioner that once the petitioner pointed out
those irregularities to the Chairman, the petitioner was removed from
the membership of the Executive Committee of the said society and he
was kept out of the management of the said society. It is also the
case of the petitioner that all the irregularities which are
mentioned in the F.I.R. are pertaining to the period, subsequent to
his removal as a member of the Executive Committee and he was kept
out, from the management of the society.
3. It
is a settled position of law that the High Court is not supposed to
go into the questions which go to the merit of the matter while
considering an application under sec.482 of the Code of Criminal
Procedure. The present application is filed taking shelter of the
observations made by this Court in its order dated 5th
December 2005 that,
.. .. the
appropriate course available to the applicant is either to apply for
discharge or to file appropriate application calling in question the
proceedings pending before the Court.
Taking
into consideration the submissions made by the learned advocate for
the petitioner that he has got 100% case on merits, this Court is of
the opinion that the petitioner ought to have chosen the case of
filing discharge application before the Court which could have looked
into the matter in detail along with perusal of the documentary
evidence in support of the contention raised by the petitioner.
4. Heard
learned Additional Public Prosecutor, Mr.Sejpal appearing for
respondents no.1 and 2. The learned APP invited attention of the
Court to the contents of the affidavit in reply filed on behalf of
respondent no.2 (Office of the District Registrar, Cooperative
Societies, Anand) paras 11, 12 in particular and also other relevant
paras.
The
Court restrains itself from going into the merits of the matter, as
it may prejudice the case of the petitioner, when he approaches the
court below.
In
view of the aforesaid observations this Court finds no merit for
granting any relief in this matter. The application is, therefore,
dismissed. Rule is discharged.
At
the request of the learned advocate for the petitioner it is
clarified that non entertainment of this application will not
prejudice the petitioner in filing discharge application and
pointing out all relevant material which is placed before this Court
in this proceeding at the time of consideration of the matter on
merits by the learned Judge.
(RAVI
R. TRIPATHI, J.)
karim
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