CR.MA/1297/2004 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1297 of 2004 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 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 ? ===================================================== DR.ANAND SWAROOP SHARADCHANDRAPATEL - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================================== Appearance : MR EE SAIYED for Applicant Ms.Falguni Patel,learned Additional Public Prosecutor for Respondent No. 1 MS AMEE YAGNIK for Respondent No. 2 ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/10/2008 CR.MA/1297/2004 2/13 JUDGMENT ORAL JUDGMENT 1. This application has been preferred by the petitioner,who is a Medical Doctor by profession, with the following prayers: “(a) Your Lordship may be pleased to quash and set aside the F.I.R.being Cr.No.1-44/2004 of the file of Nadiad Town Police Station. (b) Pending admission and disposal kindly stay the further proceedings of the F.I.R. being Cr.No.1-44/2004 of the file of Nadiad Town Police Station.” 2. Rule was issued on 12-2-2004, and interim relief in terms of para 10(b) was granted till further orders. 3. The facts of the present case are peculiar, inasmuch as a complaint has been filed by the respondent No.2, who is the mother, against the petitioner, who is her only son. The background facts, which led to the filing of the complaint, are that on 28-1-2004 respondent No.2 Smt.Suratdasi Jivabhai Bhagat, filed a complaint in Nadiad Town Police Station, which was registered as C.R.No.I-44 CR.MA/1297/2004 3/13 JUDGMENT of 2004 against her only son i.e. the petitioner. It is stated in the complaint that the respondent No.2 stays in America and the petitioner is a resident of Vadodara. Being a Medical Officer he was, at the relevant point of time, serving at Surat. The allegation against the petitioner is that he is purported to have prepared a bogus Power of Attorney, in connivance with one Valibhai Haji Hasanbhai Vohra, who is the accused No.2. The two witnesses who appended their signatures upon the said Power of Attorney are Sattar Hasambhai Vora and Ilias Haji Gulamnabi Vohra, who are shown as accused Nos.3 and 4 respectively. It is stated in the complaint that on 28-1-2004, the petitioner, in connivance with the accused Nos.2,3 and 4 was in the process of selling land bearing Survey No.36R,situated at Village Kanjri,District Kheda which belonged to the complainant to one Govindlal Maneklal Shah on the basis of the said Power of Attorney, which was presented to the Sub-Registrar at Nadiad. It is alleged that the land in question is in the possession of the complainant and she has not given the petitioner any Power of Attorney in respect of the same. That without her consent, the petitioner has prepared a fake Power of Attorney, on a stamp CR.MA/1297/2004 4/13 JUDGMENT paper worth Rs.100/-, keeping in view the fact that the complainant was due to return to America shortly, and has presented the fabricated document before the Sub-Registrar,Nadiad and, therefore, the petitioner has committed offences punishable under Section 465, 466,467,468,471,420,504,506(2) and 114 of the Indian Penal Code. 4. After the filing of the complaint, FIR being C.R.No.1-44of 2004 was registered at Nadiad Town Police Station and the petitioner was constrained to prefer the present petition. 5. Mr.E.E.Saiyed, learned counsel for the petitioner has submitted that the petitioner is a Medical Officer,who is, at present, serving in Government Hospital, Bhuj. He is the only son of the complainant who, according to Mr.Saiyed, has been misled into filing the complaint. He has submitted that if the contents of the complaint are read as a whole, there is nothing, whatsoever, to connect the petitioner with the commission of the alleged offences. It is further submitted that the entire complaint appears to be baseless and concocted one, and has been filed by the complainant for reasons CR.MA/1297/2004 5/13 JUDGMENT best known to her, during the period when she visited India on 2-2-2004, possibly due to some misrepresentations made by vested interests, who wanted to create a rift between mother and son. 6. Ms.Amee Yagnik,learned counsel for the respondent No.2(complainant) has drawn the attention of this court to an affidavit dated 12-2-2004, which has been sworn by the respondent No.2. The contents of this affidavit are self-speaking, and are, therefore, being reproduced hereinbelow: : “I, the undersigned Smt.SuratDasi D/o Shri Jivabhai Bhagat and wife of Mr.Surat Chandra Patel, aged about 62 years, resp.no.2 herein do hereby declare on solemn affirmation and state on oath as under: 1. I came in India on 2nd February 2004 and immediately thereafter, in hot hurry, I have given a written application against the petitioner herein. 2. I state on oath that the application was given to the Nadiad town Police authorities was without verification of the Power Of Attorney- a document of the Year 2000. 3. I further state on oath that the application given to the Police authorities was under frustration, misguidance and even without inspecting Power Of Attorney. CR.MA/1297/2004 6/13 JUDGMENT 4. I further state on oath that the disputed signature is of 2000 and therefore even today I am not in a position to recollect the moments of 2000 and naturally my memory is not supporting me to confirm the signature of mine in the document in question. In other words I states that signature on the Power Of Attorney is not disputed at this stage particularly when I am not interested to proceed with the complaint against the present petitioner. 5. I further state on oath that I have realized the consequences of my frustration and ill advice of surrounding peoples to drag none but my son. 6. I state that in no circumstances I want that my above said son who is taking care of my aged husband may be in trouble by any means including Police Investigation. 7. I further state on oath that I want to withdraw the complaint being Cr.No.44/2004 of the file of Nadiad Town Police Station and I do not wish that this episode of Investigation should proceed any more. 8. This affidavit is filed without any pressure, with full consent and sound mind. Solemnly affirmed on this 12th day of Feb, 2004 at Ahmedabad. Explained and translated in Gujarati/Hindi by me. IDENTIFIED BY ME ADVOCATE DEPONENT” It is submitted by Ms.Amee Yagnik that the contents of the affidavit which was presented before CR.MA/1297/2004 7/13 JUDGMENT the Court, clearly go to show that the respondent No.2 does not want to proceed with the complaint and has, in terms, stated that the complaint is a result of the “ill advise” of people who were surrounding her, and, therefore this aspect may be considered by the Court in its proper perspective. 7. Ms.Falguni Patel,learned Additional Public Prosecutor submits that although the police authorities are bound to conduct an investigation pursuant to the filing of the complaint,however, as interim relief has been granted by the court vide order dated 12-2-2004, which is still in operation, the matter has not proceeded any further, and in view of the peculiar facts and circumstances that obtain in the present case, the court may pass appropriate orders. 8. I have heard Mr.E.E.Saiyed,learned counsel for the petitioner, Ms.Falguni Patel,learned Additional Public Prosecutor for the respondent No.1 and Ms.Amee Yagnik,learned counsel for the respondent No.2 and have perused the contents of the application and other documents on record. CR.MA/1297/2004 8/13 JUDGMENT 9. I am conscious of the settled legal position that the inherent power under Section 482 of the Code of Criminal Procedure (“ the Code” for short) should be exercised sparingly and with caution, and only in circumstances wherein the exercise of such a power is justified. The settled position of law that power under Section 482 of the Code should not be exercised in order to stifle a legitimate prosecution, but can be exercised to prevent abuse of the process of the court, and in order to prevent any action which would result in injustice or would entail a miscarriage of justice needs no elaboration. In circumstances, where the court finds that initiation of proceedings and the subsequent continuance thereof, would amount to an abuse of the process of the court, and would not serve the ends of justice, the Court would be justified in exercising powers under Section 482 of the Code. 10. In State of Haryana v. Bhajan Lal, AIR 1992 SC 604 the Apex Court has held as under: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law CR.MA/1297/2004 9/13 JUDGMENT enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. 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. 2. Where 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. CR.MA/1297/2004 10/13 JUDGMENT 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 F.I.R. 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 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. 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in CR.MA/1297/2004 11/13 JUDGMENT embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 11. It is clearly evident from the affidavit sworn by the respondent No.2(complainant), that the said respondent does not want to proceed with the complaint and is desirous of withdrawing it. The tone and tenor of the affidavit further suggests that the respondent No.2, who is the mother of the petitioner, has certain misgivings, and seems to have expressed a certain degree of repentance,for filing the complaint against her only son, at the behest of certain vested interests. It is submitted by learned counsel for the respondent No.2 that shortly after filing the affidavit, the respondent No.2 has gone back to the United States of America, where she is living with her daughter and, she is still residing there. The contents of the affidavit disclose an unequivocal desire to put an end to the matter and it is specifically stated that the affidavit has been filed voluntarily without pressure and with the full understanding of the deponent. CR.MA/1297/2004 12/13 JUDGMENT 12. Even if viewed in the light of the guidelines laid down in State of Haryana v. Bhajan Lal (Supra), the case would fall under guidelines Nos.1 and 3as prima facie no offence, as alleged, is made out against the petitioner from a bare reading of the complaint and FIR. 13. The power under Section 482 of the Code is to be exercised circumspectly, sparingly and cautiously and only in rarest of rare cases. Such powers are undoubtedly the exception and not the rule. In the present case the respondent No.2 has no intention of proceeding further with the case, which fact is clearly discernible from the contents of the affidavit filed by her. In my considered view, on the facts and in the circumstances narrated hereinabove, if the case is permitted to linger on it would amount to an abuse of the process of the court and would fail to secure the ends of justice. 14. In view of the peculiar facts and circumstances of the case, the petition deserve to be allowed. The petition is, therefore, allowed. F.I.R., being CR.MA/1297/2004 13/13 JUDGMENT C.R.No.I-44 of 2004 dated 28-1-2004 filed in Nadiad Town Police Station is quashed and set aside. Rule is made absolute (Smt.Abhilasha Kumari,J) arg