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SCR.A/12/1984 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 12 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
ARUNBHAI
SHETH ' & 1 - Applicant(s)
Versus
NALINKUMAR
BABUBHAI MODI & 1 - Respondent(s)
=========================================================
Appearance :
MRS
DT SHAH for Applicant(s) : 1
- 2.
MR KB MODI
for Respondent(s) : 1,
MR
RC KODEKAR APP for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 20/03/2009
ORAL
JUDGMENT
1.0 By
way of this petition, under Section 482 of the Code of Criminal
Procedure, 1973, the petitioners have prayed to quash the private
criminal complaint being numbered as Criminal Case No.264 of 1982
pending before the Court of learned Metropolitan Magistrate, Court
No.5, Ahmedabad and the consequential proceedings initiated thereto.
2.0 The
facts in brief are that on 25.01.1982 a private complaint u/s. 406,
420, 34 & 114 of IPC came to be filed against the petitioners by
respondent no.1 in the Court of learned Metropolitan Magistrate,
Court No.5, Ahmedabad. The said complaint was numbered as Criminal
Case No. 264 of 1982. In pursuance of the filing of the aforesaid
complaint, the trial Court issued summons to the petitioners. Being
aggrieved by the same, the petitioners have preferred the present
petition.
3.0 Learned
Advocate for the petitioners state that he is not pressing this
petition so far as petitioner no.1, original accused no.1 is
concerned and that the matter may be decided only qua petitioner
no.2, original accused no.2.
4.0 In
view of the above statement, this petition is entertained only qua
petitioner no.2 herein. The petition stands disposed of as not
pressed qua petitioner no.1. Rule is discharged qua petitioner no.1.
5.0 Heard
learned counsel for the respective parties and perused the documents
on record. Having gone through the impugned complaint, I find that no
allegation/s, much less any specific allegation/s, have been made
against petitioner no.2 herein. Moreover, no specific role has been
attributed to petitioner no.2 in the alleged offence. Even if the
allegations made in the impugned complaint are taken at its face
value, they do not constitute any offence. Hence, I am of the opinion
that the complaint qua petitioner no.2 deserves to be quashed.
6.0 Considering
the facts of the case, it would be relevant to refer to a decision of
the Apex Court in the case of State of Haryana & Ors. V.
Bhajan Lal & Ors reported in 1992 Supp (1) SCC 335
wherein, the Apex Court has broadly set out the circumstances in
which the High Court can exercise the power under Section 482 of
Criminal Procedure Court. Paragraphs 102 and 103 thereof read as
under:
The
following categories of cases can be stated by way of illustration
wherein the extraordinary power under Article 226 or the inherent
powers under Section 482 CrPC can be exercised by the High Court
either to prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelized and
inflexible guidelines or rigid formula and to give an exhaustive list
of myriad kinds of cases wherein such power should be exercised
Where
the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any offence or make
out a case against the accused.
Where
the allegations in the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
Where
the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
Where,
the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
Where
the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent persons can
ever reach a just conclusion that there is sufficient grounds for
proceeding against the accused.
Where
there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings
and/or where there is a specific provisions in the Code or the
concerned Act, providing efficacious redress for the grievance of
the aggrieved party.
Where
a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
7.0 Keeping
in mind the principle laid down by the Apex Court in the aforesaid
decision, I am of the opinion that the impugned complaint cannot be
sustained in the eyes of law and deserves to be quashed and set aside
qua petitioner no.2 herein.
8.0 Consequently,
the application is partly allowed. The private
criminal complaint being numbered as Criminal Case No.264 of 1982
pending before the Court of learned Metropolitan Magistrate, Court
No.5, Ahmedabad and the consequential proceedings initiated thereto,
are quashed and set aside only qua petitioner no.2, original accused
no.2. Rule is made absolute to the above extent.
[K.
S. JHAVERI, J.]
Pravin/*
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