CR.MA/2234/1999 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2234 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ==================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5. Whether it is to be circulated to the civil judge ? NO ==================================== PARESHBHAI G PATEL & 4 – Petitioners Versus STATE OF GUJARAT & 1 - Respondents ==================================== Appearance : NOTICE SERVED for Petitioners. PUBLIC PROSECUTOR for Respondent No. 1. RULE SERVED for Respondent No. 2. ==================================== CR.MA/2234/1999 2/10 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 27/11/2008 ORAL JUDGMENT 1. The petitioners – original accused have filed this petition under Section 482 of the Code of Criminal Procedure praying for quashing and setting aside the proceedings of Criminal Case No.89 of 1999 pending in the Court of learned Judicial Magistrate First Class, Rajkot and the impugned order dated 16.03.1999 passed therein. 2. Notice was issued by this Court on 23.04.1999 and interim relief was granted in terms of para 7 (B) whereby the proceedings in Criminal Case No.89 of 1999 and the effect, execution and implementation of the impugned order dated 16.03.1999 passed by the learned Judicial Magistrate First Class, Rajkot were stayed. 3. Subsequently, the learned advocate who appears on behalf of the petitioners was elevated as Judge of this CR.MA/2234/1999 3/10 JUDGMENT Court and hence, fresh notice was issued on the petitioners on 30.09.1999. Notice was duly served on the petitioners. Despite service of notice, nobody appears till this date. It is also important to note here that notice was duly served on the respondent No.2 i.e. original complainant and despite service of notice, he never filed his appearance before this Court. 4. It is the case of the petitioners that the original complainant is claiming to hold the Power of Attorney of the appellants in Appeal No.35 of 1997 pending in the Court of learned Deputy Collector, Rajkot. The petitioner Nos.2 to 5 are respondents therein and are represented by the petitioner No.1 as their Advocate. Thus, Criminal Case No.89 of 1999 is instituted by the respondent No.2 and the petitioners are the original accused in the said proceedings. 5. It is also the case of the petitioners that the petitioners have, in their pleading and reply filed in revenue Appeal Case No.35 of 1997, made certain averments and allegations and thereby allegedly committed CR.MA/2234/1999 4/10 JUDGMENT offences under Sections 190, 191, 203 and 211. After making such allegations in the complaint, the respondent No.2 has, while being examined on oath, only stated that in paragraph 2 of the reply, in the said appeal, he was wrongly accused with bad words and more importantly the complainant has stated on oath that the complaint was filed to absolve himself of the allegations made against him. On the basis of such complaint and bald statements on oath, the learned Judicial Magistrate, Rajkot has after taking cognizance of the alleged offences, ordered the police authorities to investigate and to file report. 6. It is also the case of the petitioners that the petitioner No.1 is a busy practicing advocate of some repute. The petitioner Nos.2,3 & 4 are old and aged agriculturists. Petitioner No.5 is a disabled and aged widow. The petitioner Nos.4 & 5 are also visually handicapped. The original complainant and present respondent No.2 claiming to be holder of the Power of Attorney of the heirs of one deceased Vashram Thoban has filed Appeal No.35 of 1997 to effect certain changes in the CR.MA/2234/1999 5/10 JUDGMENT revenue records of the agricultural land held by the petitioner Nos.2 to 5 for the last about 30 years. Thus the heirs of the deceased Vashram Thobhan and the fore-fathers of petitioner Nos.2 to 5 were brothers and hence, have inherited agricultural land in the village Madhapar, near Rajkot. After about 30 years of holding and enjoying their shares of the inherited land, the petitioner Nos.2 to 5 are sought to be deprived of the land by filing Appeal Case No.35 of 1997 through the so-called Power of Attorney, respondent No.2. Against this backdrop of facts, the petitioner Nos.2 to 5 represented by their advocate, petitioner No.1, have made necessary averments and counter allegations in their pleadings in the replies and applications filed in Appeal Case No.35 of 1997. All such statements, averments and allegations are made bonafide in defense of their case by petitioner No.1 on behalf of other petitioners. The said appeal was not heard till the date of filing the petition before this Court. 7. It is further contended that during the pendency of the appeal Case No.35 of 1997, the petitioner Nos.2 to 4 CR.MA/2234/1999 6/10 JUDGMENT were sought to be implicated in several other cases and complaints with a view to achieve the ultimate goal of dispossessing them from their own share of land. Accordingly, another false and frivolous Criminal Case No.62-A of 1999 has been instituted and an order for police inquiry under Section 156 (3) of Cr.P.C. was obtained on 01.03.1999. The petitioner Nos.2 to 4 were compelled to approach this Court and obtain an injunction against further proceedings. For the use of their own land, the petitioners filed Regular Civil Suit Nos.306, 307 & 308 of 1999. The Civil Court has granted stay in the said suits filed against the heirs on whose behalf, the respondent No.2 has filed the revenue Appeal Case No.35 of 1997. It is, therefore, contended that the present criminal proceedings and order under challenge have the effect of further harassment and expensive litigations for the petitioners. 8. The main grounds on which the said criminal proceedings and the order passed therein raised in this petition are that the complaint does not disclose CR.MA/2234/1999 7/10 JUDGMENT any commission of offence by the petitioners. The parties are actually involved in civil litigations. The complaint was absolutely false and frivolous and it was filed only with a view to harass the accused by abuse of the process of law. It is further contended that the learned Judicial Magistrate First Class, Rajkot has not appreciated at all the ingredients of the offence under Section 190 of the Indian Penal Code, namely, threat of injury to induce any person to refrain from applying for protection to public servant. No such ingredients were disclosed in the complaint and none of the ingredients of such an offence are even alleged in the complaint. Similarly, no other offences as alleged in the complaint are borne out by the contents thereof or the statement made on oath by the complainant. It is further contended that under Section 195 of the Criminal Procedure Code, the Court is prohibited from taking cognizance of any offence punishable under Section 211 of the Indian Penal Code, except on the complaint in writing of the Court in the proceedings before which the alleged offence is said to have been committed. Therefore, the learned Magistrate has CR.MA/2234/1999 8/10 JUDGMENT erred in taking cognizance of the complaint and making the impugned order, the learned Magistrate has not even referred to or considered the pleadings and replies in which the allegedly offensive statements and averments are made. It is, therefore, contended that the proceedings are taken up and the impugned order is made without application of mind and without any reasonable justification. It is further contended that the impugned order of investigation by the Police Inspector was also passed without application of mind and without any justifiable reason as well as without appreciating the nature and contents of the complaint. 9. The present petition is filed on 08.04.1999. Notice was duly served on the respondent No.2. Despite service of notice, nobody appears on his behalf. The complaint is filed under Sections 190, 191, 203 & 211 of the Indian Penal Code. The complaint filed was in connection with the replies filed by the petitioner Nos.2 to 5 through their advocate, the petitioner No.1 in Revenue Appeal No. 35 of 1997. The petitioners have raised bonafide defence in the said appeal and CR.MA/2234/1999 9/10 JUDGMENT certain allegations were made. However, on the basis of the revenue appeal proceedings, it cannot be said that the petitioners have committed any offence. It appears that the said criminal complaint is nothing but a counter blast to the various civil disputes arose between the parties. There is no substance or merits in the complaint filed by the present respondent No.2 before the learned Judicial Magistrate First Class. While reading the complaint, it cannot be said that it prima facie discloses any offence committed by the accused under Sections 190, 191,203 & 211 of the Indian Penal Code. The legal submissions which are made in the present petition also supports the case of the petitioners and the learned Judicial Magistrate should not have taken any cognizance in the matter. Considering the entire facts and circumstances of the case, the Court is of the view that the complaint filed by the respondent No.2 before the Judicial Magistrate First Class being Criminal Case No.89 of 1999 is nothing but the abuse of the process of Court. Hence, it is quashed and set aside. CR.MA/2234/1999 10/10 JUDGMENT 10.The order passed therein also requires to be quashed and set aside and hence, it is quashed and set aside. This application is accordingly allowed. Rule is made absolute. Sd/- [K. A. PUJ, J.] Savariya