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CR.MA/107320/2002 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1073 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
=========================================
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 ?
=========================================
JAFRUKHAN
IMAMKHAN PATHAN
Versus
PAVANKUMAR
RAMESHCHANDRA JAIN & ANR
=========================================
Appearance :
MS
RENU SINGH for MR YN RAVANI for Applicant
MR
GC RAY for Respondent No. 1
MR M.R. MENGDEY APP for Respondent No.
2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
Date
: 23/07/2008
ORAL
JUDGMENT
1. This
petition is filed under Section 482 of the Code of Criminal
Procedure to quash and set aside the Criminal Complaint (case) No. 7
of 2002 filed before the Court of Judicial Magistrate, First Class,
Bharuch, on 04.02.2002.
2 Respondent
No.1 Pavankumar Rameshchandra Jain presented a private complaint
against the present petitioner and one more accused for the offences
punishable under Sections 465, 471 and 114 of the Indian Penal Code.
Present petitioner was Sarpanch of Palej Gram Panchayat, District
Bharuch, while accused No.1 was the Talati-cum-Mantri, who is
not before this Court. It is the case of the petitioner that on
23.12.2001, in an election held of Palej Gram Panchayat, he was
elected as a member. There were 19 members in all. The record of
the panchayat was always kept with the accused No.1 being
Talati-cum-Mantri. As alleged in the complaint, there were groups in
the members of the said panchayat. A meeting was to be held on
30.01.2002 of the panchayat, and according to the complainant, he had
requested all the members and accused No.1 to form various
committees in the said meeting to he held on 30.1.2002. As mentioned
in para-3 of the application, in the said meeting, the group of the
complainant proposed five names of the Executive Committee, which
was, according to the complainant, supported by one of the members
and was allowed by the committee with the support of 11 members.
Likewise, it was proposed to form Social Justice Committee, Water
Committee etc from the group of the complainant and those committees
were supported by the 11 members of the panchayat. The minutes book
were to be recorded by accused No.1 of the proceedings took place
of the meeting held on 30.1.2002 and thereafter accused No.1 was
required to record such proceedings in register. As soon as the
meeting was over, complainant asked for the certified copy of the
proceedings, which were not given by the accused No.1 and was given
to the complainant on 2nd of February, 2002. When this
certified copies were seen by the complainant, it came to his
knowledge that proceedings of meeting held on 30.01.2002 were not
correctly reflecting the said proceedings in the panchayat record,
which were prepared by accused No.1, and intentionally fabricated
and forged documents were prepared by him in abetment of present
petitioner accused No.2, Sarpanch. This is sum and substance
of the accusation. Therefore, this petition is filed to quash the
said complaint filed by respondent No.1.
3. Learned
Judicial Magistrate, First Class, Bharuch, forwarded this complaint
for the police investigation under Section 156(3)of the Code of
Criminal Procedure. Learned Advocate Ms. Renu Singh for learned
Advocate Mr. Yogesh Ravani for the petitioner and learned APP Mr.
M.R. Mengdey were heard in detail. While learned Advocate Mr. G.C.
Ray for the respondent No.1 – original complainant is not present.
4. It
was vehemently submitted by Miss. Renu Singh, learned Advocate for
the petitioner that the complaint filed by the complainant i.e.
respondent No.1 is mala fide and intentionally motivated to allege
the petitioner. It is submitted that ingredients of Section 463,
which is alleged against the accused, has not been disclosed even on
bare reading of the complaint. It is submitted that there was no
first resolution or proceedings and thereafter second resolution or
proceedings so as to compare both and to come to the conclusion that
the resolutions for the proceedings prepared by accused No.1 were
forged. It is submitted that even otherwise, the Gujarat
Panchayats Act, 1993 provides remedies to the members to file Appeal
under Section 242 of the said Act against any decision of the
panchayat. Even thereafter there are remedies of Revisions, etc.
It is submitted that this complaint is filed only with a motivated
intention for suspension of sarpanch – accused No.1 present
petitioner. Resolutions are to be prepared by accused No.1 Vora
Ganibhai and not by the present petitioner, who is sarpanch.
Therefore, there is no role so far as the present petitioner is
concerned so as to involve him in this serious offence.
5. As
against that, learned APP Mr. M.R. Mengdey, vehemently urged that
merely availability of alternative remedy, would not bar a
prosecution when offence is disclosed. It has been vehemently urged
that while quashing the proceedings, there were mala fides on the
part of the complainant especially when the complaint is registered,
is not at all a factor, to be considered in the quashing petition.
It is requested that the petition requires to be dismissed.
6. Having
heard the learned counsels as said above and when the counsel for
the complaint respondent No.1 is absent, this Court has gone
through the facts of the case minutely. Undoubtedly, it has now
been settled in many decisions that though inherent powers of this
Court under Section 482 of the Code of Criminal Procedure are wide,
but has to be exercised sparingly, carefully and with caution and
only when such exercise is justified by the tests specifically laid
down in Section 482 i.e. to prevent the abuse of process of court.
It cannot be used to stifle a legitimate prosecution.
7. Learned
APP Mr. M.R. Mengdey relied upon a decision of the Apex Court in the
matter of ZANDU PHARMACEUTICAL WORKS LTD vs MOHD. SHARAFUL HAQUE AND
ANR., as reported in 2005 (1) SCC 122 and attention of this Court was
drawn to para 10 of the decision, wherein the Apex Court
categorically observed that when an information is lodged at the
police station and an offence is registered, then the mala fides of
the informant would be of secondary importance. It is the
material collected during the investigation and evidence led in
court which decides the fact of the accused person. The allegations
of mala fides against the informant are of no consequence and cannot
by themselves be the basis for quashing the proceedings.
8. In
the facts of the present case and in the scope of Section 482 of the
Code of Criminal Procedure, this Court is unable to accept the
contention of learned Advocate for the petitioner that no offence
whatsoever is disclosed by the complaint. It has been specifically
averred that in the meeting proceedings were recorded by accused
No.1 and when it was entered into the record of the panchayat with
the aid and abetment of present petitioner, those proceedings were
changed and in the committees proposed by the complainant, names
of the group of the present petitioner appeared, though, that was
not the correct proceedings which had taken place in the meeting.
This allegation at present, prima facie, discloses the ingredients
of forging and fabricating a document wherein role of the present
petitioner being accused No.2 is also depicted in the complaint.
This court would not enter into the inquiry as to what extent the
allegations are true as this has to be investigated by the police
and to be tried by the Magistrate. This Court cannot assuming the
role of trial court and, therefore, the present application
deserves to be dismissed.
9. In
the result, this petition stands dismissed. Rule is discharged.
Interim relief granted vide order dated 27th of Jan, 2003
is further extended for 08 weeks from today, in case the petitioner
intends to approach higher forum. However, interim relief shall not
thereafter further be extended in any circumstances.
(J.
R. VORA, J.)
pnnair
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