Gujarat High Court
State Of Gujarat vs Ahmed Adam Mugal And Ors. on 12 August, 1994
Equivalent citations: (1995)1GLR83
JUDGMENT S.D. Dave, J.
1. The State of Gujarat, approaches this Court with the present petition under Section 482 of the Code of Criminal Procedure, 1973, for the quashing of four criminal complaints instituted against the respondent No. 3 His Holiness Dr. Syedna Mohmmad Burhanuddin Saheb, claiming to be acting Pro-Bono-Publico.
2. Section 482 of the Code runs thus:
...Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
3. The four private Criminal Complaints which came to be instituted against the respondent No. 3 are the equal of what had happened at Bombay. What had happened at Bombay can best be known from the bench judgment of Bombay High Court in State of Maharashtra v. Mohammed Yusuf Noormohammed and Ors. 1990 Mah. L.J. 813. With a deep sense of gratitude I prefer to borrow the narration of the facts from the said orders.
...The respondent No. 3 is a religious head of sub-section of Islam known as "Dawoodi Bohara" sect. The Dawoodi Boharas are Shia Muslims and respondent No. 3 has large number of followers both in India and abroad. The principal mosque of Dawoodi Boharas community is located on Saifee Jubilee Street and is known as Saifee Masjid. The areas where this mosque is situated is densely populated and near about this mosque, there are mosques of Sunni Muslims. The Muslim community observed Moharrum between August 15 and August 24, 1988. There are religious differences between Shias and Sunnis and these differences are reflected in the observance of Moharrum. The two sects of the Muslim communities have divergent views as to who immediately succeeded Prophet Mohmmed. Shias believe that Prophet Mohmmed nominated his successor during his lifetime and he was Hazrat Ali, the son-in-law of Prophet. The Sunnis, on the other hand, believe that on the death of Prophet Mohmmed, elections were held and Hazrat Abu Bakar was elected as the successor of the Prophet. Hazrat Abu Bakar subsequently appointed Hazrat Umar and Hazrat Umar appointed Hazrat Usman. On the death of Hazrat Usman, Hazrat Ali was the 4th Caliph. The Shias, who believe that Hazrat Ali succeeded the Prophet, do not accept the authority of the three Caliphs, i.e. (1) Hazrat Abu Bakar (2) Hazrat Umar and (3) Hazrat Usman. These differences between the two sects have existed over centuries and have been the cause of religious animosity. These differences have sometimes led to violent clashes between the members of the two communities in India and particularly in Lucknow and other parts of northern India.
As mentioned hereinabove, the period of mourning was between August 15 and August 24, 1988. On August 19, 1988, which was Friday and day of prayers for members of both the sects, the members of Sunni sect complained that their religious meetings in five mosques which surround Saifee mosque were disturbed as respondent No. 3 addressed the gatherings of members of Shia sect on loudspeakers and loudspeakers were placed in such a manner that religious meetings of Sunnis in the surrounding mosques will be disturbed. The members of Sunni sect thereupon lodged complaint at Dongri Police Station about the nuisance caused. On August 22, 1988, the members of Sunni sect complained that respondent No. 3 in the afternoon uttered 'Laanat' on three Caliphs, viz. Hazrat Abu Bakar, Hazrat Umar and Hazrat Usman. The respondent No.3 also uttered 'Laanat' against Hazrat Aiyasha who was the youngest wife of the Prophet. The 'Laanat' was repeated thrice by the congregation of Shia Muslims gathered in Saifee mosque. The 'Laanat' uttered by respondent No. 3 and by the members of Shia sect was announced on loudspeakers and was heard by people in the locality. The locality where this mosque is situated is principally habitated by Sunni Muslims and the 'Laanat' on the loudspeakers disturbed the prayer meetings of Sunni Muslims. The utterances of 'Laanat' created commotion in the locality and prayers were disturbed. The news of utterances of 'Laanat' spread like wild fire in the Muslim community. The respondent No. 2 lodged N.C. complaint bearing No. 2121 of 1988 at Dongri Police Station against the utterances by respondent No. 3.
On behalf of Sunni Muslim community, a meeting was convened on August 28, 1988 under the chairmanship of Maulana Zainuddin Bukhari. Several speeches were delivered at the meeting using provocative language against Dawoodi Bohra community and a demand was made that respondent No. 3 should tender apology to Sunni Muslims for utterances of 'Laanat'. The respondent No. 3 was called upon to tender apology before September 1, 1988. The respondent No. 3 did not tender any apology and thereupon members of Sunni sect pasted some pamphlets using objectionable language against respondent No. 3 in the areas where the mosques are situate. The press also carried information about the happening of these events.
September 2, 1988 was a Friday and in the afternoon, namaaz was offered at mosque where members of Sunni sect had gathered in considerable number. Members of Shia sect had also gathered to offer namaaz in Saifee mosque. While the prayers were offered the son of respondent No. 3 started performing 'Matama' (beating of the chest, self flagellation, and wailing done by the Shias during Moharrum as a mark of mourning). Matam was done very loudly so as to disturb the prayers offered by Sunni Muslims in their mosques. This created commotion between the two communities and stones, brickbats, chappals etc. were hurled by members of both the sides. The police personnel who were on duty tried to pacify and control the members of the two sects but were unsuccessful. Members of both the sects did not heed to the warning given by the police officer and indulged in violent activities by pelting stones and soda water bottles at each other. In this riot, several persons were injured, several cars and scooters were damaged and some godowns and shops were looted by the violent group. At least two persons died and more than 50 persons were seriously injured. The riot continued even on September 3 and September 4,1988 causing widespread damage both to the persons and property.
To bring about peace between the two sects, the leaders of both sects held meetings and Dr. Issa Jamkhanwalla, Minister of Urban Development, offered his office to bring about amicable settlement. It was agreed at the meeting that respondent No. 3 will issue statement expressing regret for his utterances of 'Laanat'. Accordingly, a statement was issued on September 3, 1988 by the Minister, but the leaders of Sunni sect were not satisfied with the statement. Thereupon statement was issued on the letterhead of respondent No. 3 on the same day. The leaders of Sunni sect raised objection that the statement did not bear signature of respondent No. 3, and, therefore, the same was not acceptable. Another statement was then issued but that also did not satisfy the feelings of the members of Sunni sect. A demand was made by members of Sunni sect that respondent No. 3 must appear on television and offer public apology to bring about peace and amicable settlement. At this juncture, the Chief Minister of Maharashtra intervened in the matter and offered his suggestions for reaching the settlement. A meeting was convened by the leaders of the two sects at the residence of the Chief Minister and it was agreed that a statement accepted by the leaders of both the sects will be signed by respondent No. 3 on his letterhead in the presence of the Chief Minister and that fact would be announced on television. Accordingly, statement was signed and that fact was telecast on September 3, 1988. The statement reads as under:
BISMILLAH ALREHMAN ALRAHIM, in the name of Allah, the most beneficient and the most merciful.
Praise be to Allah, Peace be upon Mohammed Saiyed al Mursalin khatam al Nabiyeen and his chosen progeny and companions.
Keeping in mind the prestige of Islam, the unity and brotherhood of Millah and its traditions for which I and my predecessors have striven hard, because of some words said by me on 22nd August, 1988, the religious sentiments of Sunni Muslims were hurt, for which I wish to be excused.
It has always been my endeavours that inspite of the difference in the beliefs, mutual unity and love must prevail in Ummat because all of us are of firm belief that we are united on the Kalimah 'LAILAHAILAHHAHV.
Yesterday an unpleasant situation occurred in this city and because of this strong bonds of Millah became weakened. It is in the mutual interest of all of us that we forget this anguish and embrace each other with sentiments of love and brotherhood. I pray to Allah that He may guide us on the right path and increase the prestige of Islam.
In accordance with the amicable settlement arrived at the intervention of the Chief Minister, peace and normalcy returned to disturbed areas and members of both the sects started mixing with each other in social and commercial relationship. No untoward incident took place since the date of the amicable settlement. The press also carried the news of settlement and the leaders of Sunni Sect accepted the statement made by respondent No. 3 in the larger interest of maintaining peace and amity in the Muslim Community.
4. Consequential to the above said incidence certain prosecutions came to be instituted against the respondent No. 3 at Bombay. So far as this State is concerned the respondent No. 1 in the present proceedings had initiated a private criminal complaint against the respondent No. 3 before the learned Chief Judicial Magistrate, Godhra for the alleged commission of the offence punishable under Section 153 and 153 A of Indian Penal Code. The proceedings which came to be registered as C.C. No. 84/88 were ordered to be referred to the police for investigation. After having done the said exercise, the police had asked for C-Summary. Any how, this request emanating from the police could not be countenanced by the learned Chief Judicial Magistrate, Godhra, vide the orders dated 31-1-89 below Application exhibit in M. Case No. 29 of 1988. The respondent No. 2 herein had filed a private complaint against the respondent No. 3 before the learned Chief Judicial Magistrate, Rajkot for the alleged commission of the offence punishable under Sections 153-A, 295, 296, 298, 436 and 427 of I.P. Code and the said proceedings came to be registered as Criminal Case No. 415 of 1989. After the usual verification under which the statement of the complainant was recorded, the learned Chief Judicial Magistrate, Rajkot has ordered the insurance of a bailable warrant in the sum of Rs. 200/- for the alleged commission of the offence punishable under Sees. 153, 295,296 and 298 of I. P. Code. It appears that one Yunus Abbas Bukhara had filed a criminal complaint against respondent No. 3 before the J.M.F.C., Jamnagar, which came to be registered as C.C. No. 35 of 1988. Another complainant Amirmiya Syed had also filed a complaint before the learned J.M.F.C, Jamnagar against respondent No. 3 which came to be registered as C.C. No. 36 of 1988. The above said two complaints are for the alleged commission of the offence punishable under Sees. 298 and 298A etc. of Indian Penal Code. The present proceedings related to earlier two complaints at Godhra and Rajkot Courts. Any how, during the pendency of the present proceedings the amendment was carried out according to the orders of the learned single Judge dated 27-3-1984, under which Para No. (DD) was inserted in the prayer clause and it was prayed that, this Court may direct that the further proceedings in any other complaint against the 3rd respondent before any Court in the State of Gujarat with reference to the alleged incidence be stayed. This prayer has been countenanced, and therefore, the other two complaints at Jamnagar also have not been proceeded against the respondent No. 3. Any how, when this matter reached for final hearing before this Court, there was an order for the issuance of fresh notices to the complainants in the two cases before the Jamnagar Court. The learned Advocate Mr. M.H. Barejia represents their cause.
5. The learned Govt. Counsel Mr. Nirupam Nanavati who appears on behalf of the petitioner-State urges that, all the above four criminal proceedings instituted against the respondent No. 3 require to be quashed as the Government after careful consideration, has come to the conclusion that to continue the prosecution of any person under Sees. 153, 153A, 295, 296, 298 and 505 of LP. Code arising out of the incidence that had occurred on 22nd August, 1988 at Bombay will have a baneful effect on the society. The learned Government Counsel further submits that, in the view of the State Government, ultimately every offence has a socioeconomic or religious cause behind it and the State has come to the conclusion that the elimination or eradication of such cause or crime would be better served by not proceeding with the prosecutions, and therefore, the State of Gujarat feels duty bound while acting pro-bono-publico to approach this Court to quash the pending proceedings against respondent No. 3 for a wider benefit of maintaining public peace in the larger context of public justice. According to the learned Government Counsel, it is reasonably and bona fide appreciated that the communal feud which has been amicably settled may re-erupt on account of the pending prosecution, and in discharge of public duty, the Government of Gujarat has thought it fit to approach this Court and to pray for the quashing of the above said criminal prosecutions. The learned Government Counsel would also further urge that, the averments in the four complaints sought to be quashed might be slightly different, and may be under different caption on the section of the Penal Code, but ultimately all what is averred in the four complaints amount to saying that, by uttering those words at Bombay the respondent No. 3 has committed the offence punishable under Section 153 A of the LP. Code and that, before the institution of these proceedings the necessary sanction under Section 196 of the Code of Criminal Procedure, 1973, having not been obtained, the State Government has got a legitimate right to come before this Court and urge for the quashing of the proceedings. Thus, it appears that, prayer for quashing of the said proceedings emanating from the State is based upon the above said two broad contentions.
6. The learned Counsel Mr. M.H. Barejia who appears on behalf of the respondent No. 2 and also on behalf of the complainants in two criminal cases at Jamnagar and who also has preferred to represent the cause of the respondent No. 1, on the other hand urges that, at any rate, looking to the facts and circumstances of the case, it cannot be said that, the State is acting pro-bono-publico, and that, the plea in this respect being advanced by the State, should not be countenanced in the facts and circumstances of the case. The learned Counsel Mr. Barejia would also urge that, ordinarily the powers reserved with this Court under Section 482 of Code of Criminal Procedure, 1973, should not only be lightly not exercised, this Court should be vary much slow in the exercise of such powers. The learned Counsel also adds with greater vehemence that the facts and circumstances on the other hand, would justify the continuation of proceedings instituted against the respondent No. 3, so that, ultimately the competent Court can decide as to whether the said alleged offences have been committed by the said respondent or not. Mr. Barejia also further urges that, on the basis of the four complaints, the concerned trial Courts have been satisfied prima facie and they have issued the necessary orders for process, and when prima facie the Courts are persuaded to believe that the respondent No. 3 has committed above said offences, then, this Court, whose duty is not to sit in appeal over these interlocutory orders should refrain from analysing the material at this juncture. The learned Counsel Mr. Barejia, therefore, urges that the present application for quashing of the proceedings enlisted above deserves the dismissal.
7. Mr. Prakash M. Thakkar, learned Counsel, who appears for Mrs. V.P. Thakkar for respondent No. 3 has supported the contentions being advanced by the learned Government Counsel and has urged that the course as being prayed for by the State is open to be followed by this Court while acting under Section 482 of the Code and that, in addition, the facts and circumstances of the case would go to show that the State Government appears to be acting pro bono publico, and that, the plea coming from the State in this respect requires to be accepted. The learned Counsel further points out that in some of the above said four private complaints charges for the offence punishable under Section 153 A of the LP. Code are levelled and that, the proceedings in such cases would be barred without the prior sanction of the State under Section 196 of the Code. Argueing in the same line, there is a further contention that, those cases in which a clear reference to the offence punishable under Section 153A I.P.Code has not been made, also reiterate the very same facts and on the analysis of the same, it appears that, they wanted to urge facts constituting the offence punishable under Section 153 A of LP. Code only. The further contention is, that, thus the sanction of the State Government in all the cases was absolutely necessary as a sine qua non and as the same has not been obtained, the petitioner Government in all fairness has a rightful claim to approach this Court and to pray for the quashing of the proceedings.
8. The learned Government Counsel Mr. Nanavati places heavy reliance upon the Bench decision of the Bombay High Court on State of Maharashtra v. Mohammed Yusuf Noormohammed and Ors. 1990 Mah.L.J. 813. In the said proceedings, for quashing under Section 482 of the Code before the Bombay High Court, the facts were slightly different, in as much as, after the entire matter was amicably sorted out, the respondent No. 1 had filed C. C. No. 53/Misc. of 1988 in the Court of Addl. Chief Metropolitan Magistrate, Bombay, on September 23,1988. The complaint was indeed based on the incidents that had occurred between August 1988 and September 5, 1988. The respondent No. 2 therein had also filed a private complaint being C.C. No. 55 of 1988 before the Addl. Chief Metropolitan Magistrate, Mazgaon, Bombay, against His Holiness Dr. Syedna Mohammed Burhanuddin Saheb, in respect of the same incidence saying that, the respondent No. 3 therein have inter alia committed offence under Sees. 153, 296 and 298 I.P. Code. Later on certain communication was sent to the State Government seeking the sanction under Section 196 of the Code of Criminal Procedure for the prosecution of the said respondent. On receipt of the letter, the State Government had instituted the proceedings for quashing of the said complaints under Section 482 of the Code.
The Bench decision, after a reference to various Supreme Court decisions, concludes the situation by saying that, the application filed by the State Government requires to be allowed and the proceedings in two criminal cases were quashed. This Bench decision on which heavy reliance has been placed by the learned Government Counsel Mr. Nanavati and learned Counsel Mr. Thakkar for respondent No. 3 firstly takes into consideration what the Supreme Court has stated in case of Thakur Ram and Ors. v. State of Bihar . The Bench decision has extracted thus, what has been said by the Supreme Court:
The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large.
While making a reference to the Supreme Court pronouncement in case of State of Orissa v. Chandrika Mohapatra , the observation of the Supreme Court has been reproduced as under:
We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.
A later decision of the Supreme Court, namely, Balwant Singh v. State of Bihar , has also been referred and the observation of the Supreme Court which run thus, have been appreciated:
Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour dispute which might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances also may be given.
The following say of the Supreme Court in case of Subhash Chander v. The State , have also been followed:
The fact that broader considerations of public peace, larger consideratios of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a Court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the Public Prosecutor, not the District Magistrate or Minister. The concurrence of the Court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceedings as is alleged in this case, may well be a relevant ground for withdrawal. For the Court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well-grounded on precedents.
It is also observed in view of what has been stated by the Supreme Court in the case of Rajender Kumar Jain v. State through Spl. Police Establishment and Ors. , that the prosecution may be withdrawn, not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace.
After a reference to the above said Supreme Court pronouncements, while analysing the facts of the case on hand, the Bombay High Court appears to have accepted the claim of the Advocate General that the continuation of prosecution is likely to re-open the wounds which are already healed by amicable settlement reached in the meeting of the leaders of the two sects of Muslim community. The Bombay High Court pronouncement also refers to and places reliance upon the decision of the House of Lords in the case of Gouriet v. Union of Post Office Workers and Ors. reported in 1977(3) All England Law Reports 70. Lord Fraser in his speech observed that:
It is entirely appropriate that responsibility for deciding whether to initiate preventive proceedings for injunction or declaration in the public interest should be vested in a public officer, and for historical reasons that officer is the Attorney General. It was further observed that it is well established that he is not bound to prosecute in every case where there is sufficient evidence, but that when a question of public policy may be involved the Attorney General has the duty of deciding whether prosecution would be in the public interest.
Lord Fraser has also observed thus:
Enforcement of the criminal law is of course a very important public interest, but it is not the only one, and may not always be the predominant one. There may be even more important reasons of public policy why such procedure should not be taken at a particular moment, and it must be proper for the Attorney General to have regard to them.
On the basis of the say of the House of Lords, the Bombay High Court pronoucement says that the House of Lords have clearly recognised that, though the enforcement of criminal law is a public interest, that interest will have to give way to important reasons of public policy. In other words, right of individuals to initiate prosecution must give way to the larger interest of the society.
The Bombay High Court pronouncement on the basis of the appreciation of the factual aspect of the case on hand, has taken the note of the fact that, the apprehension of the State Government that continuation of prosecution would reopen the bitter feelings and would lead to another round of riots cannot be discarded as imaginery and that the State Government was acting pro bono publico. The relevant paragraph concludes in the following manner:
In our judgment, the interest of public at large and of the society is of far more importance than the interest of the individual and such interest of right of an individual to continue prosecution must give way to the larger interest of the society.
Thus, on a reading of the pronouncement of the Bombay High Court, in case of Mohammed Yusuf Noormohammed (supra), it is abundantly clear that it was found as an acceptable proposition that the State Government can apply under Section 482 acting pro-bono-publico and that the facts and circumstances of me case had justified such prayer emanating from the State Government.
9. The factual and legal facts of the present proceedings before me appear to be the very same. The four private complaints which came to be instituted against the respondent No. 3, definitely are consequential to what had happened at Bombay during the relevant period. The respective complainant in each of these four complaints make a specific reference to the utterances made by the respondent No. 3 and the consequences which had followed. The case taken up by four different complainants may very in few particulars or in pointing out of the section of the Penal Code under which, according to them, the offences would be punishable. Despite this, the reference unmistakably appears to be to the offence punishable is under Section 153A of I.P. Code. The act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony have been embraced under Section 153A of Indian Penal Code. The reading of the four private complaints instituted by four complainants would definitely go to show that, in substance and reality they want to urge that the utterances of respondent No. 3 amounts to the offence punishable under Section 153A of Indian Penal Code.
The view taken by the High Court of Bombay in the similar facts and circumstances requires to be appreciated in the context of the submissions which are being advanced by the learned Government Counsel Mr. Nanavati and learned Counsel Mr. Barejia.
10. The learned Counsel Mr. Barejia, in his efforts to persuade me that this is not a case in which the jurisdiction vested in this Court under Section 482 of the Code requires to be exercised, has placed reliance upon the Allahabad High Court pronouncement in Gopal Singh v. Smt. Dhanraji Devi and Anr. 994 Cri.LJ 1652. The principle on which the learned Counsel places reliance is, that when the Magistrate had found that the complaint was disclosing evidence and that, there was the evidence produced before the Court, supporting the allegations in the complaint and when it was felt that aprima facie case is made out and when the trial Magistrate had issued the summons, the High Court in the exercise of the powers under Section 482 of the Code should not interfere. The reliance is also placed upon the Bombay High Court decision in Pandey Ajay Bhushan, Collector and District Magistrate, Jalgaon and Ors. v. Sureshkumar Bhikamchand Jain and Anr. 1994 Cri.LJ 1726, for urging that, when the petitioner has got the alternative remedy under Section 204 before the very same Magistrate who was seized of the matter, the interference by the High Court was not proper. Placing reliance upon the Supreme Court pronouncement in Union of Indian and Ors. v. B.J. Bajaj and Ors. 1994 Cr.LJ 2086, it was urged by the learned Counsel Mr. Barejia that, when the question of quashing the F.I.R. had arisen for the High Court, it was not proper to treat the whole matter as though it was an appeal against the order of conviction. The Supreme Court pronouncement in State ofHaryana and Ors. v. Ch. Bhajan Lal and Ors. , is also being pressed in service by the learned Counsel Mr. Barejia to urge that the investigation cannot be quashed on the basis of the denial of the statement of a party against whom commission of offence is alleged. It requires to be appreciated with pertinence that, these decisions on which the learned Counsel desires to place reliance would not assist him in his submissions before me because the accused persons have not approached this Court for the quashing of the criminal prosecutions pending against them. The prominent feature of the proceedings before me is, that, the State acting in the public interest feels it necessary to get the proceedings quashed in the wider public interest.
11. The Supreme Court decision in Amar Nath and Ors. v. State of Haryana and Ors. , also would not provide any assistance to the learned Counsel Mr. Barejia, because the view taken is, that when the revision against the orders was barred under Section 397 Clause (2) of the Code, the powers under Section 482 should not have been exercised to defeat such orders. While reading the provisions contained under Sees. 397 and 482 harmoniously, the Supreme Court has said that where a particular order is expressly barred and the same cannot be the subject-matter of a revision by the High Court, then to such a case the provisions of Section 482 would not apply. The reason behind inviting a reference to this Supreme Court pronouncement by the learned Counsel Mr. Barejia is obvious. According to him, the orders of the issuance of the process would be the interlocutory orders and that, when the revisional proceedings before the High Court were under a specific bar, such orders could not have been set aside under Section 482 of the Code. The learned Counsel also with great emphasis places reliance upon the Supreme Court pronouncement in Kurukshetra University and Anr. v. State of Haryana and Anr. , with a view to urge that such proceedings cannot be quashed under Section 482 under the inherent powers of the High Court at the stage of investigation. The Supreme Court pronouncement makes it clear that, the inherent powers do not call for an arbitrary jurisdiction on the High Court, to act according to the whim or caprice but that the statutory power has to be exercised sparingly, with circumspection and in the rarest of the rare cases. There should not be any difficulty in accepting the contention being raised by the learned Counsel Mr. Barejia on the basis of this pronouncement of the Supreme Court. To me, it appears that the moot question is as to whether this is a fit case in which these powers, which are required to be used only sparingly, are in fact required to be utilised. The silent part of this basic question is - whether such an exercise would prove to be either whimsical or capricious?
12. The Supreme Court pronouncement in Rajender Kumar Jain v. State through Spl Police Establishment and Ors. , wherein duties of the Public Prosecutor and the scope of the jurisdiction of the Court while acting under Section 321 of the Code, which pertains to the withdrawal from the prosecution are defined is also resorted to. Equating the powers under Sees. 321 and 482 of the Code, the learned Counsel urges that the very same principle would be applicable in the present proceedings also. Here also there is no quarrel on this point.
13. The learned Counsel Mr. Barejia urges before me that, while examining the question of the quashing of the complaint, additional material filed by the accused cannot be taken into consideration. In support of this contention, the reliance is placed upon the Supreme Court pronouncement in Smt. ChcmdDhawan v. Jawahar Lal and Ors. . Accepting this principle, it shall have to be noticed that, while examining the question of the exercise of the powers under Section 482 of the Code here before me, there is absolutely no question of placing before me any additional material. The citing of the reported decision in case of Mohammed Yusuf Noormohammed (supra) cannot be said to be presenting before me any other, further or additional material. The Supreme Court pronouncement in Mosst. Simrikhia v. Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee and Anr. is absolutely of no assistance to the learned Counsel Mr. Barejia because the principle enunciated is, that, the inherent powers vested in the High Court under Section 482 of the Code cannot be exercised by the High Court so as to review its own judgment. Mr. Barejia has urged that the true test would be to take the allegations of the complaint as, they are without adding or substracting anything and to see whether any offence is committed. It is also a further contention coming from the learned Counsel that if no offence is made out then, the High Court will be justified in quashing the proceedings in exercise of the inherent powers. In support of this contention, the reliance is being placed upon the Supreme Court decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. . But shall recall once again that the question is not of quashing the proceedings on the basis of the absence or presence of the allegations made out in the complaint; the real question which I am called upon to decide as already indicated is as to whether in the public interest as urged by the State, the proceedings should be quashed or allowed to be continued.
14. Because of the same position, the Supreme Court pronouncement in Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors. would also be of no avail to the learned Counsel Mr. Barejia, as it rules that, when there are specific allegations in the complaint disclosing ingredients of the offence, the quashing of the proceedings by the High Court was not legal.
15. The sole question which arises for my consideration is as to whether the State Government is acting pro bonopublio and is not motivated to seek the quashing of the prosecution for any other oblique reason. Under the very facts & circumstances the Bombay High Court has preferred to accept the plea advanced by the State Government and to quash the proceedings. The present proceedings which are sought to be quashed under the petition arise and have been instituted in similar facts and circumstances. The allegations also are similar; the case sought to be canvassed before the Courts below being that by those utterances the provisions of Section 153A of Indian Penal Code are attracted and in fact the respondent No. 3 has committed the said offence. Following the principle laid down by the High Court of Bombay in case of Mohammed YusufNoormohammed (supra) I do not feel any hesitation in coming to the conclusion in such a fact situation, the inherent powers vested in this Court under Section 482 of the Code can be exercised. In the same way, I find no difficulty in reaching a further conclusion that the facts and circumstances of the case would justify the quashing of the proceedings as urged by the petitioner-State. I base this conclusion of mine on the fact that, on the overall appreciation of the factual and legal aspects annexed to the present proceedings, I am satisfied that the State Government acts pro bono publico when it comes before me for the orders of quashing. I am duly fortified in this view of mine by the Supreme Court pronouncement in State of Orissa v. Chandrika Mohapatra , to which a reference is made in the Bombay High Court pronouncement in case of Mohammed YusufNoormohammed (supra), which says that, if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution. The Supreme Court pronouncement in Bahvant Singh and Ors. v. State of Bihar also emphasises that the communal feuds which may have been emicably settled should not re-erupt on account of one or two prosecutions.
16. The House of Lords in Gouriet v. Union of Post Office Workers and Ors. 1977 (3) All ELR 70, makes it clear and has recognised that though enforcement of criminal law is a public interest, that interest will have to give way to important reasons of public policy. In other words the right of individuals to initiate prosecution must give way to larger interest of the society. In my opinion, though it cannot be disputed or denied that the four complainants have got their own rights to approach the competent Court for the prosecution of respondent No. 3, the right of these persons and the State must give way to the larger interest of the society which in my view again can be maintained by countenancing the plea being advanced by the State before me, namely, the quashing of the proceedings.
17. The present scenario before the Nation picturise a situation which appears to be grim. The communal and divisive forces are spearheading. Disrespect, distrust and ultimately hatred based on class and community considerations are overflowing. Damage to the property and violence and cruelty towards people have been abundant. We see people and properties perish. Communal and caste consideration surface and resurface causing serious theats to economy and sovereignity of the country. Along with many other arms, the use of the implement of intervention in judicial proceedings by the State, the ultimate custodian of public interest appears, not only permissive but obligatory.
18. Mr. Barejia indeed makes a further grievance. Equality before Law and equal protection by and under the Law; two accepted constitutional canons should shut off the doors for the State while such relief is prayed. The Courts, contends the learned Counsel, in their turn should berricade the path of the State if it ventures to travel ahead on it. The State should not intervene, yet if it chooses any such intervention the Courts should dispute the intervention and should allow the Law to have its course. The contentions are not only attractive but of worth. But pitted against the personal right and individual interest, is the right and the duty of the State to intervene in the larger interest of the Society, provided the facts and circumstances so demand. An issue which appears to have been settled between the two sections may not appear to the State, so precious as to keep it alive and generative of fresh feuds. State as the supreme custodian of Law, Justice and Public interest may decide to upkeep only that what is in the larger public interest, even at the sacrifice of individual right, if that appears to be the need of the hour.
19. The jurisprudence guiding the Court also requires a recast and remoulding so as to secure a state of affairs which would be conducive to the maintenance of lasting peace between the citizens and the integrity of the Nation, when both appear to be at a stake.
20. Before the Bombay High Court in case of Mohammed YusufNoormohammed (supra) it was also sought to be contended that the prosecutions launched by the respondents in that case were defective. Any how this aspect had not been made the basis for the quashing. Bombay High Court pronouncement makes it clear that the prosecutions launched were not set aside on the ground to be defective but the High Court of Bombay would exercise the powers to quash the proceedings with a view to secure the ends of justice. It has been pointed out that the interest of public at large and for the society is far more important than the interest of individual and such interest or right of an individual to continue prosecution must give way to the larger interest of the society. Here before me also, as indicated above, it was sought to be urged by the learned Government Counsel that the proceedings in question are bad for want of the necessary sanction under Section 196 of die Code. Such a case is being made out clearly in respect of those complaints in which the offence under Section 153A Penal Code came to be referred unequivocally. A similar view can be and requires to be taken in the remaining complaints too, because without naming the offence, clear averments, which would constitute offence punishable under Section 153A Penal Code have been made.
21. Looking to the averments made and the alleged offence indicated, the sanction of the State Government was a sine qua non or a condition precedent. This is indeed an additional factor and the State could have refused such sanction but only if die complaints would have approached them. I do base my conclusion mat the present proceedings require to be allowed and the complaints before the Court below require to be quashed on this technical aspect also.
22. Incurring the distaste of repetition. I would say that, in my opinion the State, acting pro-bono-publico may feel duty bound to intervene, the test being the subsisting exigency demanding the upkeep of the social interest of the community at large and die facts and circumstances annexed to the prayers of the State do in fact demonstrate such an exigency, and when the State die supreme custodian of the social interest of the community at large, comes before me, die plea, in me facts and circumstance requires a countenance, to secure the ends of justice within die meaning of Section 482 of die Code of Criminal Procedure.
23. Thus, in my opinion die present application requires to be allowed and die same is hereby accordingly allowed. The proceedings in form of C.C. No. 41 of '89 pending on me file of the learned Chief Judicial Magistrate, Rajkot, and in form of C.C. No. 84 of '88 on die file of the learned Chief Judicial Magistrate, Godhra, along with two private complaints registered as C.C. No. 35 of 88 and 35 of '88 before die Jamnagar Courts are hereby quashed. Rule is made absolute accordingly.