TMI Blog1994 (12) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... leged offence under the Indian Penal Code, and yet whether this Court in view of certain glaring facts and circumstances of the case emerging from the complaint itself of which even a judicial notice can be taken (going to show that having regard to the ordinary natural course of human conduct and transaction the allegation made in the said complaint, were inherently improbable stemming from nothing else than mala fides and therefore palpably false made only with a view to brow-beat, demoralize, black-mail and deter thereby the public servants discharging their lawful duties) can quash the complaint and the proceedings taken up pursuant thereto exercising its inherent extraordinary power under Section 482 of the Code? These three are the basic questions arising in this petition for consideration in the context and background of the following facts and circumstances. 2. To state few relevant facts briefly, the petitioner No. 1 is a 'Competent Authority' of the Slums Clearance Board. Ahmedabad, while rest of the petitioners are as such his associate officers helping him in discharge of his official duties. To be exact, it appears that Mr. R.S. Shah, petitioner No. 1, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482 of the Code to quash the process on the ground of some material change in the facts and circumstances of the case after the aforesaid Misc. Criminal Application No. 1466 of 1989 came to be disposed of as withdrawn. Those changes of material circumstances according to Mr. Bambhania are: (1) That after the commission of alleged offences in the year 1988 as many as six long years have passed and yet the trial having not made any progress an inch hangs fire over the heads of the petitioners with all its uncertainties as to when it will begin and when it will end and in the meantime for that purpose, how long the accused should go on waiting and summoned on every date to attend the Court leaving aside the routine office duty!! (2) That the breach of injunction/contempt application under Civil Appeal No. 19 of 1988 arising out of the eviction order passed by the, 'competent authority' filed by evictee Rasiklal Rana through his learned Advocate Mr. Vinod Brahmbhatt, which was pending before the City Civil Court was dismissed by an order dated 20-12-1989 holding that- the opponent or any of its officers cannot be said to have committed any contempt of Court. They h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the said order was already signed, in view of the express embargo placed on the powers of the Court in Section 362 of the Code, it is not open to this Court to review or alter the same. Making good this submission, Mr. Shethna has invited attention of this Court to Section 362 of the Code, which reads as under:- Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same, except to correct a clerical or arithmetical error. While attempting to consolidate this submission further, Mr. Shethna has also invited the attention of this Court to the decision of the Supreme Court rendered in the case of Smt. Sooraj Devi v. Pyarelal, reported in AIR 1981, S.C. 736. Mr. Shethna on the basis of these submissions finally urged that since this Court is not empowered to review or alter its earlier order, the present application having been based on the very same facts and circumstances, was ex facie not maintainable and therefore deserves to be dismissed. 4. Countering the above preliminary objection, Mr. Bambhania, the learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to be withdrawn. Four days after the said withdrawal, the Company filed another petition under Article 226 of the Constitution this time before the High Court challenging the award. The petition was virtually based on the same facts and grounds as were taken in Leave Petition before the Supreme Court. The respondent-union appeared and filed a counter-affidavit urging that the petition be dismissed in limine. A rejoinder-affidavit was filed on behalf of the company. It was contended before the High Court that it should not exercise its discretion under Article 226 of the Constitution, after the withdrawal of leave petition unconditionally. On this contention having being accepted by the High Court, the Company took the matter to the Supreme Court, wherein one of the question raised before it was; Whether unconditional withdrawal of the leave petition would amount to dismissal ?? Answering this question Supreme Court in para-20 at page 964 held as under:- After having analyzed the various case cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch, and (ii) on merits also on the ground of no prima facie case was made out. In this regard, the following observations made by the Supreme Court in case of the Superintendent, Remembrancer Legal Affairs, W.B. V. Mohan Singh Ors. (supra) are worth noting which are reproduced as under:- Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of the justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceedings against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of the respondents No. 1 and 2 were clearly different from what they were at the time of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its at the end of full dressed trial, and thereafter, in appeal or revision after final hearing on merits as the case may be. The termination of any interim application either by way of dismissal, more particularly of withdrawal stands on entirely different footing. Under the circumstances if the submission of Mr. Shethna, viz. that since the earlier - first Misc. Criminal Application was either withdrawn or dismissed, the same cannot be subsequently entertained because of bar in view of Section 362 of the Code 1 was to be accepted, then it would create such an anomalous situation wherein once an application for hail under Sections 437 and 439 is decided against the accused, the subsequent half application cannot be entertained because the final order passed therein has been duly signed, which cannot be either reviewed or altered by any court in view of Section 362 of the Code !! Similarly also, whenever in case of the absence of learned Advocate any appeals or applications are dismissed for default then also on the alleged ground of bar to review or alter earlier order, subsequent application for restoration cannot be entertained that would create an unjust situation. This would i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised or not that is always left to the discretion of the High Court which knows its extraordinary power under Section 482 and also the limitation thereunder and accordingly any application under Section 482 of the Code merely because it was dismissed earlier cannot come in the way to prevent the abuse of process of law and to secure the ends of justice, it the High Court at that stage feels satisfied to intervene to secure the ends of justice. Now, the contention raised by Mr. Shethna for which he has relied upon the case of Smt. Sooraj Devi (supra) is amply taken care of by the Supreme Court in its decision rendered in the case of Superintendent Remembrancer of Legal Affairs, W.B. (supra). In view of the clear distinction, Section 362 of the Code having not even remotest application, the preliminary objection raised by Mr. Shethna deserves to be rejected and stands rejected accordingly. 5.3. Incidentally, it needs to be clarified that it is not merely on account of time factor that this Court has thought it expedient to quash the proceedings. Rather, on perusal of the complaint but for the fact that the Court is prima facie satisfied regarding the mala fide of the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint discloses more than prima facie offences but the same, to say the least at this stage also does raise grave suspicion, which in view of the decision of the Supreme Court rendered in case of State of Bihar v. Ramesh Singh, reported in AIR 1977 SC 2018, is sufficient, to frame the charge. When such is the legal position, according to Mr. Shethna, this Court should restrain itself at this stage from quashing and setting aside the process and instead would indeed to better to direct the petitioners to apply for discharge before the learned Magistrate at the appropriate stage. On the basis of these submissions, Mr. Shethna finally urged that apart from the preliminary objections, on merits also, this Misc. Criminal Application deserves to be dismissed and be dismissed accordingly. 7. Mr. Bambhania while countering the above submissions has invited the attention of this Court to the following indisputable glaring facts and circumstances of the case which this Court can certainly take a judicial notice of the same and more particularly when the same when put to the complainant Mr. Vinod Brahmbhatt who was present before the Court are not disputed by him!! The catalogue of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplemented by the officers and servants on 15-8-1988. (7) That in the Appeal filed by Mr. Rana before the City Civil Court, Ahmedabad at the lime of hearing on 29-7-1988 learned Advocate Mr. V.H. Brahmbhatt S.B. Brahmbhatt appeared as Advocates for the appellant. (8) That the Memo of appeal, injunction application and affidavit did not disclose anything as to parting of possession in favour of any one/body, i.e. to Mr. V.H. Brahmbhatt!! (9) That neither appellant nor his Advocate Shri V.H. Brahmbhatt and Ors. disclosed that the eviction orders have been executed on the date of hearing on 29-7-1988. However, an application Exh. 16 has been presented before the City Civil Court in Appeal No. 19 of 1988, inter alia alleging that the eviction has been made in violation of Section 4 of the Act and injunction granted by the City Civil Court (vide application dated 19-08-1988). (10) Mr. V.H. Brahmbhatt lodged another complaint on 8-8-1989 against the four persons, i.e. R.S. Shah (who exercised the powers conferred under the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972, B.S. Joshi (original complainant on behalf of the Board) and two others, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, (as the case may be) to any case at hand, the same has so be appreciated in the context and background of the facts and circumstances of that particular case. The decision of the Supreme Court or for that purpose even of High Court like a readymade garment cannot be thrown to any person to put on by him irrespective of his/her gender, age, height, and size of the body unless and until the person whom it is thrown to put on is either of the same age, height and size. In fact, every criminal cases have variety of facts, circumstances, colours and shades distinctly differing from case to case, and therefore, unless and until the facts of two cases are so to say the identical one, or so to say near identical one, it would indeed be too mechanical and an indiscreet approach on the part of the concerned court to apply the same! The Court when called upon to apply any decision of the High Court or for that purpose, the Supreme Court, it is required to carefully apply its mind and find out whether facts, circumstances and law governing the same are matching that is to say of the same origin and/or group! In this view of the matter, the decision of Supreme Court in the case of State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the poor. On calling upon the complainant to show the document of alleged arrangement arrived at with Mr. Rana, as stated in the complaint he was unable to do so. Not only this but even V.P. filed on behalf of Mr. Rana in City Civil Court on 1-6-1988 shows his address at the relevant time as - Dakshini Society, Gajanand Colony, Bungalow No. 7, Maninagar; Ahmedabad-380008. Ordinarily this is not taken into consideration but having regard to the peculiar facts, this Court has not been able to resist its temptation to look at it for moral certainty. When asked about the same, Mr. Brahmbhatt had indeed no reply!! Of course, Mr. Brahmbhatt in order to show that at relevant point of time he was in possession of the premises in question has produced a ration card. But in background of facts and circumstances of the case, there is no doubt in the mind of this Court that the same is fabricated one. Now despite this eloquent circumstance if the complainant could still assert that he was in possession of premises in question whether the alleged incident look place and this Court was to accept such a cock and bull story, it would be simply nothing but the violation on the common sense!! When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, if not all, at least some getting afraid of the same would be in jittery losing required self-confidence to discharge their duty without fear or favour! To save such public servants from unfortunate circumstances like the hazards and hardships that has fallen on the petitioner, the Court entertaining complaint must be extremely careful and should not mechanically issue the process without carefully screening the same! Thus keeping in mind the facts of the case like the present one, if complaints more particularly against the public servants are carelessly entertained, no administration can ever work and it is here that this Court feel absolutely duly bound in the interest of overall public administration and ultimately, public-servant to see that such false, frivolous and vexatious complaints are not encouraged by allowing them to continue!! 10. This Court while allowing this application for quashing the proceedings is indeed quite conscious on the one hand extent of its wider inherent powers to prevent any abuse of process of law to secure the ends of justice and also at the same lime on the other hand the self-imposed limitation of such powers, namely that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to achieve a salutary public purpose, namely, that the criminal Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In the present case, it prima facie clearly appears that the complainant who is an Advocate has on account of his failing in eviction proceedings where he appeared for Mr. Rasiklal Rana, identifying himself with the case and client surprisingly and shockingly too illegally claiming himself to be in the continued possession of the premises in question on the one hand, and on the other hand to frustrate the object and the outcome of the eviction proceedings confirmed at the High Court level has falsely and maliciously by making wild allegations against the petitioners has filed the complaint. As already stated somewhere above, in the present case, unwittingly the complainant himself has kept a crevice open from where the Court by peeping into it could see, appreciate and find out that by no stretch of imagination, the complainant could have been in lawful possession of the premises in question, and accordingly, when the bottom of the case itself is knocked down or so to say the foundation is lost, and gives way, the art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, unnecessary suffering except the High Court, then in that case, more than the right of the accused, it is indeed the foremost duty of the High Court to immediately step in and do the needful to rescue him out. An application under Section 482 of the Code, be it first, second or third or any, when the Court entertains it, it would be entertaining it with full sense of responsibility and awareness of extent of its powers and limitations under Section 482 of the Code and that too after hearing both the sides, and therefore, whether it should entertain such a subsequent application or not is always a matter of judicial discretion of the High Court at that particular stage, depending upon the quality of the changed facts and circumstances made out regarding the impending abuse of process of law and to secure the ends of justice; (ii) the unconditional withdrawal of any application by itself does not amount to dismissal, and (iii) similarly, merely because the facts alleged in the complaint apparently contain all the ingredients constituting the offence, that by itself does not take away power of the Court to closely screen, scrutinize and appreciate the inherent improbabilities of ca ..... 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