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CR.MA/7078/2007 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7078 of 2007
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 ?
=========================================================
KUSUMBEN
KANTILAL PATEL & 4 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
ASHISH M DAGLI for
Applicant(s) : 1 - 5.
MR JK SHAH APP for Respondent(s) : 1,
MS
JOSHI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 30/09/2011
ORAL
JUDGMENT
1. This
petition has been preferred u/s. 482 of the Code of Criminal
Procedure praying to quash the complaint being Criminal Case
No.55/2001 filed by respondent no.2 herein with the Court of learned
J.M.F.C., Ankleshwar and the process issued thereon.
2. The
facts in brief are that on 15.05.2001 respondent no.2 herein filed a
private complaint against the petitioners herein with the Court below
inter alia alleging that the petitioners, in connivance with each
other, forged a registered sale document dated 20.12.1973 in respect
of immovable property that belonged to the grand-mother of the
complainant by preparting a false power of attorney document. On the
said complaint, the Court below ordered issuance of process against
the petitioners. Being aggrieved by the same, the petitioners have
preferred the present petition u/s.482 of the Cr.P.C.
3. Heard
learned counsel for the parties and perused the documents on record.
By filing the impugned complaint in May 2001, respondent no.2 has
prayed to take necessary appropriate action against the petitioners
for an offence alleged to have been committed before about twenty
eight (28) years, i.e. alleged forging of a sale document dated
20.12.1973. It may be noted that a suit being Special Civil Suit
No.491/1983 was filed between the parties, which came to be disposed
of in the year 1998 whereby, the suit was decreed in favour of the
petitioners.
4.
In State
of Haryana and others v. Bhajanlal and others, AIR 1992 SC 604 [1992
Supp (1) SCC 335],
the Apex Court held 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.”
5. Considering
the long delay of about 28 years in filing the complaint and the
principle laid down in Bhajanlal’s case (supra), I find this a
fit case wherein the inherent powers of this Court could be exercised
in favour of the petitioners.
6. For
the foregoing reasons, the petition is allowed. The complaint being
Criminal Case No.55/2001 filed before the Court of learned J.M.F.C.,
Ankleshwar and the consequential proceedings initiated thereto are
quashed and set aside. Rule is made absolute.
[K.
S. JHAVERI, J.]
Pravin/*
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