CR.MA/107320/2002 1/7 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. CR.MA/107320/2002 2/7 JUDGMENT 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 CR.MA/107320/2002 3/7 JUDGMENT 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 CR.MA/107320/2002 4/7 JUDGMENT 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 CR.MA/107320/2002 5/7 JUDGMENT 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 CR.MA/107320/2002 6/7 JUDGMENT 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 CR.MA/107320/2002 7/7 JUDGMENT 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