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CR.MA/5269/2005 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5269 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
LAKHABHAI
DEVDHANBHAI JHILARIYA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
NL RAMNANI for
Applicant(s) : 1 - 2.
MR KP RAVAL, ADDITIONAL PUBLIC PROSECUTOR
for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 20/04/2011
ORAL JUDGMENT
Heard learned advocate
for the petitioners and Mr.K.P.Raval learned APP appearing for
respondent No.1. Though served none appears for original complainant
– respondent No.2.
The petitioners, who have
been named as accused in First Information Report being FIR No.I-98
of 2005 lodged with Morbi City Police Station on 2.5.2005 and the
alleged offences have been committed on 15.10.2004, have approached
this Court under Section 482 of the Criminal Procedure Code for
quashing the said FIR on the ground that the same is nothing but
merely an attempt to scuttle pressure unduly on the petitioner in
respect of the private complaint, which came to be filed by the
petitioner No.1 in the Court of the learned Additional Chief
Judicial Magistrate being Criminal Case No.10 of 2004 alleging that
the respondent Nos.2 and others committed offence punishable under
Sections 323, 324, 504, 506(2), 394, 307 and 114 of the Indian Penal
Code.
The facts in brief
leading to filing of this petition are required to be set out as
under:-
The applicant No.1
happens to be original complainant in complaint dated 1.5.2004 filed
before the learned Judicial Magistrate First Class at Morbi. The
said complaint is registered as Criminal Case No.10 of 2004 and the
petitioner No.2 is shown as witness therein. The petitioner No.1 was
constrained to file the said complaint against the respondent No.2
and other police officers for the offences punishable under Sections
323, 324, 504, 506(2), 394, 307 and 114 of the Indian Penal Code.
The learned Judicial Magistrate First Class, Morbi after recording
statement of the complainant and his witnesses passed an order dated
15.10.2005; after registering the complaint under Section 202 of
Criminal Procedure Code has called upon the complainant to remain
present on 12.5.2004 for further evidence. After further inquiring
in the matter the learned Additional Chief Judicial Magistrate,
Morbi under his order dated 1.5.2004 issued process against the
accused. The order of the said process is annexed to the petition as
Annexure-C.
Thereafter, the accused
respondent herein appears to have filed complaint in question on
2.5.2005.
This Court (Coram: Mr.
Justice Jayant Patel, J) on 2.8.2005 after recording prima facie
satisfaction with regard to substance in the matter issued rule and
ordered interim relief to continue till final disposal of the
matter. In this matter on earlier occasion interim relief was
granted on 13.5.2005.
This Court has perused
the memo of the petition as well as the complaint filed by the
respondent No.2 and also the complaint filed by the petitioner No.1
wherein the petitioner No.2 is shown to be witness. The allegations
levelled in the complaint by the petitioner against the Police
Officer have been acted upon by the learned Magistrate and the
process is issued. The complaint thus needs appropriate examination
as prima facie the learned Magistrate found substance in the
complaint and hence the process was issued. In such a situation one
of the accused filing complaint with Police Station for alleging
offence punishable under Sections 196, 195, 469, 470, 471 and 120(B)
of Indian Penal Code needs to be viewed in appropriate perspective.
The respondent No.2 could have concluded the logical conclusion in
the matter of criminal case filed by the petitioner No.1 which was
the subject matter of proceeding bing Criminal Case No.10 of 2004
after having satisfactorily bringing the proceeding to logical end,
the cause, if any, on the part of the respondent No.2 would have
been appreciated. In the instant case this Court is of the view that
lodging of FIR with Police Station alleging commission of offences
which are essentially in the nature of fabricating falls documents
for implicating persons in the Court itself would not be
maintainable when the entire proceedings are pending before the
Competent Court wherein the issue is at large. The lodgment of
complaint, therefore, in my view is nothing but sheer abuse of
process of law and, therefore, the same is required to be quashed
and is hereby quashed. The quashment of this complaint shall not in
any way affect the right of the respondent No.2 in case if the
result of the criminal case being Criminal Case No.10 of 2004 is in
his favour.
With these observations,
the petition is allowed. Rule made absolute. No order as to costs.
(S. R. BRAHMBHATT, J.)
kks
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