1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.: 3106 OF 2008 1. Pradeep Ramdas Garge, Age: 40 years, Occu.: Doctor, 2. Ramdas Narayan Garge, Aged: 59 years, Occu.: Nil. Both resident of Netaji Chowk, Chalisgaon, Tq. Chalisgaon, District: Jalgaon. At present - at Aurangabad. ... APPLICANTS [ORI. ACCUSED] VERSUS Prakash Vithal Chaudhari, Aged: 20 years, Occu.: Service, R/o Gajananwadi, Chalisgaon, Tq. Chalisgaon, Dist. Jalgaon. ... RESPONDENT [ORI.COMPLAIANT] *** Mr. N. N. Shinde, Advocate i/b Mr. H.T.Joshi, Advocate for the Applicants. Mr. P. B. Patil, Advocate for the Respondent. *** CORAM: K. U. CHANDIWAL, J. DATED: 1st OCTOBER, 2009. ORAL ORDER: 1. Heard. Rule. Returnable forthwith. By consent, matter is finally heard and disposed of. 2. There operates an ad-interim relief in terms of prayer 2 clauses (B) and (C) by virtue of order dated 25th September, 2008. 3. The controversy, in the matter, revolves to lodging of criminal complaint by the Respondent Prakash against present applicant Pradeep and his father Ramdas who are, according to the applicants, reputed in their faction and also the petitioner No.2 Ramdas to be 80 years old. 4. The complainant Prakash before the learned J.M.F.C., Chalisgaon, detailed in para 3 of his complaint, that on 16th June, 2008 when the complainant was proceeding with Advocate Prakash Palve in his vehicle, at such time the accused Nos.1 and 2 (applicants herein) were proceeding in their Maroti car from Malegaon Chalisgaon road and having seen the vehicle of Advocate Mr. Prakash Palve they stopped, they called the complainant Prakash from the vehicle, accused No.1 Pradeep all of a sudden started abusing him in filthy language, thereafter, tried to exert force without any provocation and without any reason to do so. It was a force by the body power allegedly by accused No.1 Pradeep. 4. The learned J.M.F.C., by his order dated 11th July, 2008, has recorded as under: "Perused complaint - verified by complainant. Read documents. Heard. Satisfied. Issue process u/s 323, 506 r/w 34 of IPC against accused on P.F." . It is this order is assailed by the accused Pradeep and Ramdas. 3 6. The learned counsel for the Petitioner, extensively dealt with the chequered history of civil litigation RCS 226 of 2004 and RCS 34 of 2000 initiated by Advocate Palve and as to how Advocate Palve has been mutilating the property rights of the accused herein. Several instances are quoted during the course of submissions. It is pointed out and supported by two medical certificates that Applicant No.2 Ramdas is also a medical practitioner, 80 years old, though his age is shown as 59 and is a resident of Aurangabad, while Applicant No.1 Pradeep is occasionally staying at Aurangabad and at Chalisgaon. 7. The learned Judge, in terms of section 202 of Cr.P.C., was required to consider, before taking cognizance in the matter, since the accused is residing at a place beyond the area in which he exercised his jurisdiction, should have postponed to the issue of process against the accused or either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Such exercise, which has been made effective from 23rd June, 2006 should have been scrupulously adhered to. On this ground only, the complaint of Prakash needs to be quashed. 8. Then comes the civil litigation between Mr. Palve and the present applicants. As stated earlier, there is chequered history. The powers of this Court in terms of section 482 Cr.P.C. are indicated in several pronouncements of the Apex Court. In the matter of "R. P. Kapur V/s State 4 of Punjab" [AIR 1960 SC 866] and also in the matter of "State of Haryana and others V/s Ch. Bhajan Lal and others" [AIR 1992 SC 604] the parameters of exercise of powers under section 482 are highlighted and indicated. The illustrative categories in the matter of Bhajanlal are as under: "1. Whether the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. 2. Whether the allegations in the First information Report and other materials, if any, accompanying the F.I.R. 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. 3. 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. 4. Where, the allegations in the F.I.R. 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. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 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 provision in the Code or the concerned Act, providing 5 efficacious redress for the grievance of the aggrieved party. 7. 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." 9. It has been observed by the Apex Court in the matter of "State of A.P. V/s Vangaveeti Nagaiah" [2009 ALL MR (Cri) 2416], in para 7, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. The Apex Court has also observed "It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R., that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court". 10. The prima facie facts highlight, Mr. Prashant Palve is keen to harass, humiliate, intimidate the present Petitioners 6 to see that they succumb to his pressure to dispose of the property. In this scenario his Clerk Prakash has been used as a stead to join a liver to settle his score against present petitioners Pradeep and his father Ramdas. The Apex Court has also held that there should not be a short cut mechanism provided by the Courts to a litigant to get rid of civil litigation. The criminal prosecution should not be entertained as a cloak to settle the civil disputes. 11. The statements in the complaint, if taken to its logical end, I find that the complainant states that his mentor Prakash Palwe or his client Deshmukh were in the vehicle and in the next breath in the said paragraph he contends that they were at a distance and having heard the brawl or sensed the tainted atmosphere rushed. This also speaks against complainant in narrating the fact. It was incumbent on the learned Judge to have recorded statement of witnesses, considering nature of the offence, which exercise he has failed to do. 12. Taking survey of all the facts, I do not find that the prosecution in terms of criminal case No.64 of 2008 before the learned J.M.F.C., Chalisgaon is genuine. It is sheer abuse of the process a colourable exercise to give effect to other causes between the parties. Consequently, it is quashed and set aside. Rule made absolute in the above terms. [K. U. CHANDIWAL, J.] Dated:01/10/2009. ans/3106 7 CRIMINAL REVISION APPLICATION NO.: OF 2009 Date of decision: 1st OCTOBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE K. U. CHANDIWAL. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE