HI6H COURT OF CHHATTISeARH AT BILASPUR Writ Petition {0 N0. 1467of 2008 /1 POST FOR ORDER ON 19TH MARCH. 2008 Sd/- Dhirendra Mishra Judge PETmONER Mohd. Arshad Khon Vs RESPON&ENTS Central Bureau of Inyes+igation and others HI6H COURT OF CHHATnS6ARH AT BIL^SPUR PETITIONER W.P.M No. 1467 of 2008 Mohd. Arshad Khan, Advocate, aged about 32 years, S/o Shri Mohd. Akram Kham, R/o Jama Masjid Street, burg, Tah. & bistt. Durg (C.6.) Vs RESPONDENTS 1. Central Bureau of Investigation, 12 Khamba Lane, New Delhi, Through:- birector Oeneral. 2. State of Chhatl-isgarh, Through- Town Inspector, Police Station Durg, C.6. 3. Bar Council of India, 21 Kous^ Avenue, Institutional Area, New Delhi. 4.5tate Qor Council of Chhatt-isgarh, Throu9h; Secretary, State Bar Council of Chhattisgarh, High Court Premises BilaspurC.^. 5. Shri Prakash Choubey, Ayd 70 years, Alias Deen Dayal Choubey S/o bal Singar Choubey AIkis Katwaru Choubey, R/o (^irdhari Nagar Dur9, Tah. d bistt. Durg. 6. Shri Shri Prakash Choubey, S/o Shri Dal 5ingar Choubey, Retired Assistant Labour Commissioner, ^ovt. of Uttar Pradesh, Presently residing at Ward No.l,Kairi Road, Chandauli, Toh. &, Disft. Chcuidauli, Uttar Prodesh. Present: Mr. V,5. Tamaskar, Advocate for the petitioner. OR DER (Passed on J1..3.2008) Per Dhrendra Mishra. 3: 1. The petitioner has fited this petition under Article 226 of the Constitution of India and prayed for quashing of Criminal Case No. 833/06 between Prakash Choubey Vs. Mohd. Arshad Khan pending in the Court of Judicial Magistrate 1 Class, Durg; calling for the records of DC AppeaJ No.48/2004, review petition No.12/2005 and removal proceedings No.12/2006 in respect of respondent No.5 from Bar Coundl of India and after perusal of the same direct respondent No.l to conduct investigation against respondent No.5. 2. From the pleadings in the petition and documents annexed with the petition. it cppears that re^ondent No.5, claiming himself to be the practicing advocate, has filed a complaint in the Court of the Judicial Ma9istrate 1st Class, Durg under Sections 469, 501 & 471 of the Indian Penal Code (for ^iort TPC') against the petitioner herein with the allegations that the petitioner has filed a Writ Petition No.3333/2003 in the High Cour^ of Chhattisgarh at Bilaspur making fa\se and defamatory allegations against him that a criminal case under Section 395 of the IPC is pending against him in relation to a dacoity of 1he year 1987. After service of the notic^ of the above writ petition, the prestige of respondent No<5 was lowered down in the eyes of his subordinates and acquaintance. The allegation is per-se false and the same was made intentionally to tarnish the image of respondent No.5. Learned Judicial Magistrate registered 1+ie offence under Section 501 of the IPC. In the said proceedings the petitioner herein filed detailed written submjssions making various allegations against 1+ie respondent No,5/complainant regarding his personal character dnd proyed for dismissal of complaint, However, tearned Judicial Magistrate framed the charge under Section 501 of IPC against the petitioner herein on 25.9.2007. 3. The petitioner by the instant petition has made %irious allegations against the respondent No.5 and has also averred that on the compldnt of Kie petitioner, the State Bar Council of Chhatt-isgarh after registering the complaint case number DC/10/2004 restrained the respondent No.5 from practicing law in the State of Chhat^isgarh. D.C. Appeal No.48/04 preferred by the respondent No.5 before the Discjplinary Authority of Bar Council of India has afso been dismissed vide order dated 6,8.2005. However, review petition No.12/05 preferred by respondent No.5 before the Disciptinary Committee of Bar Council of India was allowed vide order dated 9.4.2006 and the matter of respondent No.5 was placed before -riie 0eneral Hou^ of Bar Council of India for consjderation of the matter under Stection 26 of the Advocates Act. WhereuDon the removal oroceedinas No.2/06 '^^^^^ was registered and name of respondent No.5 was directed to be removed from the ftoll of Advocates maintained by the State Bar Coundl of Delhi, 4. Learned counsel for -tiie petitioner vehemently ai^ued that from the allegations mentioned in the disciplinary proceedings against respondent No.5 it is evident tiiat his name has been removed from 1+ie Roll of Advocates from the Bar Council of DeJhi. Respondent No.5 has been throughout resorting to practice, which is unbecoming for an advocate and he had been able to perpetuate this for so many years without impunity. The court below without considering the writt-en submissions of the petitioner has taken cognizance of the compjaint filed by respondent No.5 and has framed the charge under Section 501 of IPC. which is on the face of the record an abuse of process of law & court and the criminal proceeding against the petitloner deserves to be quashed. It was further argued that despite deletion of name of respondent No.5 from the Roll of Advocates, he is practicing as an advocate in the court by practicing fraud upon the courts, society and public-in-general and his aforesaid conctuct warrants investigation by respondent No,l, 5. I have heard learned counsel for the petitioner. 6. The instant petition has been preferred by the petitioner for two distinct reliefs arising out of two different causes of action. Firstly, the petitioner has proyed for quashing of Criminal Complaint Case No.833/05 pending in the court of Judicial Ma9istrate 1st Class, Durg, as the learned Judicial Magistrate has taken cognizance of the complaint filed by the respondent No.5 and disregarding -rtie wrttl-en submissions of the petitioner, has framed charge under Section 501 of IPC. The second relief sought by the petitioner is in the form of direction to respondent No.l-CBI to enquire into the allegations against respondent No.5, his antecedents and crime, if any. commined by him for getting himself re9i'stered with the State Bar Council of Chhattisaarh / Delhi. ^ /s 7. In the considered opinion of this Court the reliefs claimed by the petitioner arising out of two different causes of action and are of such a nature which cannot be grcxnted in one writ petition. Even ol+ierwise, from perusal of the pleadings and documents filed by the petitioner. it is evident that the petitioner has already filed a petition bearing W.P. No.3333/2003 with a proyer to conduct detail enquiry through Central Bureau of Investigation, New Delhi in relation to the Jmpersonation by the complainant for his prosecution and 1+ie said writ petition is still pending in this Court.In view of the above pendency of the above petition, the instant petition for identical relt'ef is superfluous and unnecessary. 8. So far as the quashing of Complaint Ca^ No.833/05 pending in the Court of Judicial Ma9Jstrate 1 C(a$s, Dur9 is concerned, in the matter of State of Haryana & others Vs. Bhajan Lal & athers reported in 1992 Supp (l) SCC 335 it has been held that extraordinary power under Article 226 or inherent powers under Section 482 of the Code of Criminal Procedure, 1973 could be exercised ei'ther to prevent abuse of process of any Court or otherwise to secure ends of justice. In -the above judgment, categories of cases by way of illustrations wherein such power should be exercised have been given as under:- " (1) Where the allegations made in the first information report or tiie comptaint, even if they are taken at their face value and accepted in 1+»eirentirety do not prima face constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompcmying the FER do not disclose a cognizable offence/ justifyjng an investigation by police officers under Section 156 (1) of the Code except under oin order of a Magistrate within the purview of Section 155 (2) of the Code. ..1.^-^^^^,^ (3) Where the uncontroverted allegations in the first information report or complaint amd the evidence collected jn support of the same do not disclose the commission of cmy offence and make out a case against the accused, (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permifted by a police officer without an prder of a Magistr-ate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the first information report or the compiaint are so absurd and inherently improbable on the basis of which no prudent person am ever reach a just conclusion that tiiere is sufficient ground for proceeding against the accused. (6) Where there is oai express legal bar engrafted in any of the provisions of 1+ie Code or the concernect Act (under which a criminat proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in 1+ie Code or 1+ie concemed Act, providing efficacious redress for Ihe grievonce of the aggrieved party. (7) Where a criminal proceeding is momifestly attended with mala fide and / or where the proceeding is maliciously instituted with cn ulterior motive for wreaking vengeance on the accused oind with a view to spite him due to private and persona grudge," In Para 103 of -tfie above judgment a note of caution has been given to the effect that the power* of quashing a criminal proceeding should be exercised very sparingly aaid with circumspection and that too in the rarest of rare cases. The Court will not be justified in / ^. 6 w^' Roshan/- embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FEft or the complaint. 9. If we examine the present case in the light of law laid down in the aforesaid judgment, we observe that the petitioner has nowhere denied 1+ie atlegations in the complaint regarding false implication and pendency of offence under Section 395 of IPC against the re^iondent No.5. Moreover, except photocopies of the complaint omd particutars of charge framed by the triat court against the petjtioner, no other ctocument has been filed by the petitioner, Even certified copy of the particulars of offence has not been filed, 10. However, from perusal of the allegations in the comptaint prima-facie ingredients for framin9 charge under Section 501 of the IPC is avdfable. Other averments in the complaint are mat^ers of defence and the same could not be considered by 1he trial court at the stage of framing of charge and therefore, in 1+ie considered opinion of this Court, the court below has not committ-ed any illegality by registen'ng the offence and framing charge against the petitioner herein. 11. On the basis of afore^iid analysis, there is no substan<% in the instant petition, the same deserves to be dismissed at the admission stage itself and it is accordingly dismis^d. 12. No order as to costs. Sd/- Dhirendra Mishra Judge