DHARMENDRASINH RATANSINH RAOL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed by the applicant - original accused No.2 under section 482 of the Cr.P.C., 1973 for seeking quashment of the complaint being Inquiry Case No.149 of 1996 pending before the learned Judicial Magistrate First Class, Mehsana.

(2.) The premise upon which the present application came to be filed is that one Pratapji Madhuji Vihol had also filed the Criminal Complaint on 25.7.1996 before the ACB Police Station, Mehsana being CR No.16 of 1996 against the present respondent No.2 - complainant for the offence under the provisions of the Prevention of Corruption Act. It is further the case of the applicant that in that context, a trap was executed on 26.7.1996 by the applicant along with another police personnel of ACB Police Station, Mehsana along with the panchas. In that trap proceedings, the currency notes came to be seized from respondent No.2. The necessary formalities of execution of panchnama has also been undertaken on that very day and the statement of respondent No.2 also came to be recorded. The seizure memo as well as panchnama of trap is executed on very same day. 2. 1 It is further the case of applicant that surprisingly, after a substantial period of time, the present respondent No.2 filed the criminal complaint on 30.9.1996 before the learned Chief Judicial Magistrate, Mehsana for the offence under Section 342 r/w 114 of the IPC against the present applicant. It has been asserted by the applicant that in the process the earlier complaint which was filed on 25.7.1996, a charge-sheet has also been filed against the respondent No.2 on 22.12.1997 for the offence under the provisions of the Prevention of Corruption Act. So much so that respondent No.2 was also arrested on 19.12.1997. 2. 2 The case of the applicant further travelled by asserting that on 31.7.2000, the learned Judicial Magistrate First Class, Mehsana, after conducting an inquiry, issued process against the present applicant for the offence under Section 342 r/w Section 114 of the IPC. 2. 3 On account of aforesaid process having been issued by the learned JMFC, the applicant initially filed an application below Exh.38 on 20.3.2003 in Criminal Case No.3809 of 2000 before the learned Judicial Magistrate First Class, Mehsana for seeking discharge from the prosecution lodged by respondent No.2. The learned Judicial Magistrate First Class, Mehsana vide order dated 28.10.2005 was pleased to dismiss the said application below Exh.38. 2. 4 The applicant has further pointed out in the memo of application that being aggrieved by and feeling dissatisfied with the order passed below Exh.38, the applicant preferred Criminal Revision Application No.12 of 2006 before the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana, which, later on, came up for consideration before the the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana, who, by judgment and order dated 21.4.2006, was pleased to reject the same. 2. 5 The applicant thereafter had approached this Court by way of Special Criminal Application by invoking extraordinary jurisdiction of this Court for challenging the orders passed by the courts below and said writ petition was registered as Special Criminal Application No.1185 of 2006 which came to be admitted and thereafter, upon further adjudication as legal issue was raised with respect to maintainability of petition challenging the order of seeking discharge whether the same was maintainable in a summons triable case and therefore, a request was made by the applicant to permit the said petition to be withdrawn so as to enable the applicant to file a substantive petition under section 482 of the Cr.P.C., 1973 and it is in that context pursuant to the said order passed by this Court, the present application appears to have been filed. Said order was passed on 26.3.2009 and thereafter, it emerges from the record that present application appears to have been prepared in the month of May,2009 and presented before this Court on 15.9.2009. The present application was entertained by this Court on 24.2.2010 by issuing notice upon the respondents but, then it appears that on 20.7.2010, this Court was pleased to issue Rule and also granted interim relief in terms of Para.6(B) and now it has come up for final disposal before this Court.

(3.) Mr.M.M.Tirmizi, learned counsel appearing for the applicant - original accused No.2 has vehemently contended that prior to filing of the complaint, no sanction is obtained as required under section 197 of the Cr.P.C., 1973 and therefore, the complaint itself is maintainable. In addition thereto, Mr.Tirmizi has further contended that on the basis of averments contained in the complaint itself, no offence under Section 342 is made out ex-facie and therefore, since the ingredients of the offence alleged are apparently visible from the complaint, such complaint may be entertained as the same would tantamount to be an abuse of process of law. Mr.Tirmizi has further contended that the averments which are made in the complaint filed by respondent No.2 are in any way outside the discharge of applicant's duty and on the contrary, false averments have been made to duck himself from the complaint filed against him under the provisions of the Prevention of Corruption Act. Mr.Tirmizi has further contended that the applicant has undertaken the lawful discharge of his duty and nothing beyond. It is also contended that neither force is applied of such a nature which may permit even respondent No.2 to raise any grievance. On the contrary, on that day i.e. on 25.7.1996 since the FIR was lodged against the respondent No.2, as a part of investigating process the trap was carried out, even the seizure memo has also been drawn, necessary panchnama has been executed and therefore, whatever is done is done in discharge of his official duty and therefore, same cannot form an act overreaching any process of law. On the contrary, the respondent No.2 being a lawyer was expected to cooperate with the process of investigation instead has chosen to raise the grievance like this. He submitted that simply because some time has taken for taking steps of drawing panchnama of preparation of seizure memo etc., for some time respondent No.2 has to remain with the applicant in police station. But neither imprisonment has taken place nor any torture is executed of any nature and therefore, simply because the respondent No.2 is a lawyer, the applicant cannot keep aside all his works as required in his office and that expectation is to be kept in mind by respondent No.2. This entire complaint which has been filed is nothing but a sheer abuse of process of law and just with a view to undermine the authority of applicant being police officer. On the basis of averments contained in the complaint, no offence is made out which may permit the respondent No.2 to drag the applicant in prosecution. 3. 1 Mr.Tirmizi has further agitated that there is a gross delay in filing the complaint which is unexplained and the manner in which the applicant has dragged the respondent No.2, who was in dress code of a lawyer, is possible the reason for brining the complaint with the support of bar association and a prestige issue is tried to be made out by lodging the complaint in question. Otherwise without any undue delay, immediate actions have been taken by drawing panchnama, preparing the seizure memo and everything was done promptly and therefore, this is nothing but a sheer abuse of process of law by the respondent No.2 and therefore, Mr.Tirmizi has requested the Court to set aside the impugned complaint as also the process issued therein. 3. 2 To substantiate his contentions about sanction as well as abuse of process of law, Mr.Tirmizi has relied upon the following decisions of the Apex Court as well as various High Courts which are as under :