Gujarat High Court
Akhil Dineshbhai Parmar & vs State Of Gujarat & on 8 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/19647/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19647 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 or any order made thereunder ?
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AKHIL DINESHBHAI PARMAR & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1 - 2
MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. P.K. JANI, ADDL. ADV. GENERAL for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/02/2017
ORAL JUDGMENT
1. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused persons seek to Page 1 of 33 HC-NIC Page 1 of 35 Created On Wed Mar 01 00:35:57 IST 2017 1 of 35 R/CR.MA/19647/2014 JUDGMENT invoke the inherent powers of this Court praying for quashing of the first information report being II-C.R. No.292 of 2014 registered at the Panchkoshi 'B' Division Police Station, Jamnagar for the offence punishable under section 3 of the Official Secrets Act, 1923 (for short "Act of 1923"), section 188 of the Indian Penal Code (for short " the penal code") and section 66(A) of the Information Technology (Amendment) Act, 2008 (for short "I.T. Act).
2. It appears from the materials on record that the Vigilance Officer of the Reliance Industries, namely, Mr. Abid Khan preferred an application dated 9th October, 2014 in the form of a complaint addressed to the Superintendent of Police, Jamnagar in connection with the illegal Videography of the Reliance Jetty. It was brought to the notice of the Superintendent of Police that the Reliances Industries, and the area surrounding the same, including the jetty has been declared as a prohibited area pursuant to the notifications dated 20th October, 2010, 29th April, 2011 and 5th June, 2012 respectively issued by the State Government.
3. On receipt of such complaint, the Superintendent of Police directed one Shri K.G. Zala, the Circle Inspector to undertake an inquiry.
4. On 11th October, 2014 the statement of Mr. Abid Khan was recorded.
5. In the course of the preliminary inquiry, it was revealed that the owner of One Arpan Studio did the video shooting of the reliance jetty at the instance of the two applicants herein. The Circle Police Inspector filed his report before the Sub-
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Divisional Magistrate and prayed for issue of a warrant against the owner of Arpan Studio in accordance with section 11(1) of the Official Secrets Act, 1923.
6. On 13th October, 2014, the Sub-Divisional Magistrate issued the warrant.
7. On 13th October, 2014, a search of the premises of the Arpan Studio was carried out in the presence of the Panchas. The Investigating Officer seized nine D.V.D Casettees, two pen- drives, six memory cards, one computer, two cameras and a light bill. The owner of the studio, namely, Shri Ketanbhai Khelshanker Pandya was present at the relevant time.
8. On 13th October, 2014, the statement of Shri Ketanbhai Khelshanker Pandya was recorded. In his statement, he stated that one Shri Aziz Ismail Ghandhar had come to collect the camera for the purpose of video shooting. On the next day, the camera was returned to Shri Pandya.
9. On 14th October, 2014, it was revealed that one Basir Ismail Ghandhar prepared a copy of the video in his studio viz. Surya Studio, and prepared a CD from the same. Basir Ismail Ghandhar informed Abid Khan (Reliance Security Officer) that one video CD had been prepared in his studio and he provided the CD to the Security Officer.
10. On 14th October, 2014, the statement of Basir J. Bhagad of the Surya Studio was recorded.
11. On 17th September, 2014, Aziz Ismail Ghandhar came Page 3 of 33 HC-NIC Page 3 of 35 Created On Wed Mar 01 00:35:57 IST 2017 3 of 35 R/CR.MA/19647/2014 JUDGMENT with a Sony Video Camera, containing a memory card, in which, the video shooting of the reliance jetty was recorded and made five cassetes of the same. He provided the CD to Mr. Abid Khan, the Vigilance Officer of the Reliance Industries.
12. On 14th October, 2014, the first information report came to be registered at the concerned police station by Shri K.G. Zala, Circle Police Inspector, Jamnagar (Rural), Jamnagar for the offences enumerated above.
13. Thus, the picture that emerges is that the State Government issued three notifications referred to above and thereby declared the area surrounding the reliance refinery, including the jetty as a prohibited place as defined under section 2(8) of the Act, 1923. It is alleged that the applicants herein in collusion and connivance with the other co-accused entered into the prohibited area and videographed the entire jetty and the refinery.
14. The investigation of the first information report was taken over by one Shri G.R. Gadhvi, the Deputy Superintendent of Police.
15. On 15th October, 2014, the Investigating Officer arrested Aziz Ismail Gandhar and recorded his statement.
16. Aziz ismail Gandhar claims to be the president of the "Machimar Heet Rakshak Samiti". To put it in other words, he claims to be the president of an Association formed for the welfare and interest of the fisherman. From the office of the association, four CDs and one memory card was recovered.
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17. On 8th October, 2014, the statement of Aziz Ismail Gandhar was recorded, and in his statement, he stated that the applicants herein had asked him to videograph the jetty and the surrounding area of the refinery. He further stated that the video shooting was undertaken in a prohibited area with the help of a boat of one Hussain Hasam Ghodiwala at the instance of the applicants herein. His statement revealed the following;
(I) made a videography of the jetty from the ocean. (II) made a CD in the studio of Basir Bhagadwala. (III) the videography was made from the camera. (IV) Aziz had taken a video clip in his mobile through the Bluetooth.
(V) Aziz Ismail had given the CD and memory card to the applicant No.1 herein.
(VI) The applicant No.1, from his office, created an Email ID of Aziz and posted the video clip on social media, i.e. YouTube.
18. On 22nd October, 2014, the statement of Aziz Ismail Gandhar was recorded. The applicants could not be arrested.
19. On 25th October, 2014, the office premises of the applicant No.1 was searched and a computer was recovered. A Panchnama was drawn. The computer has been sent to the FSL for the purpose of investigation.
20. On 22nd October, 2014, the following persons came to be arrested.
(1) Hussain Hasam Ghodiwala.
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(2) Noor Mohammed Umar Gandhar
(3) Anwar Osman Palani
(4) Hussain Ahmed Subhanmiya
21. Later on, all the four were ordered to be released on bail by the Sessions Court at Jamnagar.
Submissions:-
22. Mr. Mangukiya, the learned counsel appearing for the applicants, vehemently submitted that the respondents have made a mountain out of a mole. He submitted that in the first place, the State Government could not have issued the three notifications declaring the area in question as a prohibited place under the Official Secrets Act, 1923. He submitted that the three notifications, the breach of which has been complained, are the subject matter of challenge before this Court in the Special Civil Application No.2130 of 2015. He submits that the Division Bench of this Court is looking into the legality and validity of such notifications, and till the final disposal of the writ application, his clients cannot be prosecuted or this Court may defer the hearing of this application till the final disposal of the Special Civil Application No.2130 of 2015. The learned counsel submits that a private refinery would not fall within the definition of the term "prohibited place" as defined under section 2(8) of the Act, 1923.
23. The learned counsel submitted that the provisions of the Act, 1923 have no application, at all, so far as the case at hand is concerned. Mr. Mangukiya submits that the applicant No.1 is Page 6 of 33 HC-NIC Page 6 of 35 Created On Wed Mar 01 00:35:57 IST 2017 6 of 35 R/CR.MA/19647/2014 JUDGMENT a social worker. He happens to be the son of a Former Minister of the State. The applicant No.1 is a former member of the District Panchayat of Jamnagar. He pointed out that for the purpose of bringing oil from the various oil fields, situated abroad, the Reliance Industries has been permitted to construct a jetty at the Sikka Port. The private captive jetty was permitted to be constructed for the exclusive use of the refinery. The learned counsel submitted that the videography of the area had to be undertaken because the refinery is responsible for pollution at a large scale and such pollution has affected the marine life. The learned counsel submits that there was no other idea to prepare a CD of the video shooting except to highlight the extent of pollution caused by the Company.
24. Mr. Mangukiya submitted that the action on the part of his clients cannot be termed as spying as explained in section 3 of the Act, 1923. The learned counsel also submitted that no offence under section 66(A) of the I.T. Act, 2000 could be said to have been committed.
25. Mr. Mangukiya submitted that nothing "secret" was recovered from the possession of the applicants so as to meet the requirements of section 3(1)(c) of the Act is concerned.
26. Mr. Mangukiya, the learned counsel, invited my attention to section 13(3) of the Act, 1923. He submitted that section 13 of the Act, 1923 provides that no Court shall take cognizance of any offence under the Act unless upon a complaint made by order of, or under authority from, the appropriate government or some officer empowered by the appropriate government in Page 7 of 33 HC-NIC Page 7 of 35 Created On Wed Mar 01 00:35:57 IST 2017 7 of 35 R/CR.MA/19647/2014 JUDGMENT that behalf. He submits that since there is an embargo upon the court to take cognizance of the offence except upon a complaint, the first information report is not maintainable and the police has no powers to undertake the investigation. He would submit that the term "complaint" in section 13(3) of the Act, 1923 means the complaint as defined under section 2(d) of the Code of Criminal Procedure.
27. The learned counsel submitted that section 3(a) has also no application to the case at hand. He lastly submitted that the prosecution against his clients could be termed as malicious and vexatious. In such circumstances referred to above, Mr. Mangukiya prays that there being merit in this application, the same be allowed and the first information report be quashed.
28. Mr. Mangukiya also submits that section 188 of the Indian Penal Code has no application since no cognizance can be taken by the court of the said offence upon a police report. Mr. Mangukiya submits that the bar of section 195 of the Cr.P.C will apply to the case at hand.
29. On the other hand, this application has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State. Mr. Jani submits that the plain reading of the first information report discloses more than a prima facie case against the applicants. He submits that the case at hand is very serious. The illegal act on the part of the accused persons, which constitute a serious offence, would have had serious repercussions. He submits that if the CD and the other materials would have landed up in the hands of dangerous persons, then, probably, such materials could have Page 8 of 33 HC-NIC Page 8 of 35 Created On Wed Mar 01 00:35:57 IST 2017 8 of 35 R/CR.MA/19647/2014 JUDGMENT been misused creating a potential threat to the security of the State. Mr. Jani submits that there is no merit in the contention raised on behalf of the applicants that since the three notifications are the subject matter of challenge before this Court, the breach of those notifications would not amount to an offence. He submits that the notifications, as on date, are very much in force.
30. Mr. Jani submits that all the necessary ingredients to constitute the offence under section 3 of the Act, 1923 are spelt out. The first information report is still at the stage of investigation and the police should be permitted to complete the investigation and file an appropriate report before the court concerned. He submits that it would be too premature for this Court to take one view or the other. Mr. Jani invited my attention to section 2(8)(d) of the Act, 1923 and submitted that on the strength of the same, it is within the powers of the State Government to issue an appropriate notification in that regard.
31. Mr. Jani placed reliance on the following averments made in the affidavit-in-reply, duly affirmed by the Investigating Officer, namely, Shri Girdhar Ratandan Gadhvi.
"7. I say and submit that the allegations levelled by the present applicant that this FIR which has been lodged is with malafide intention by the police authority which also appears to be false and vexatious. An application was given by Security Officer of Reliance Industries on 09.10.2014. Then after inquiry was made and it was found that allegations which are made are true hence FIR came to be lodged. If the FIR is perused minutely, this fact would be very clear. Hence it is not true that it is filed with malafide intention against the present accused. The police authority does not have any malafide interest against applicant. The police has no enmity with the Page 9 of 33 HC-NIC Page 9 of 35 Created On Wed Mar 01 00:35:57 IST 2017 9 of 35 R/CR.MA/19647/2014 JUDGMENT petitioners but once the offence is found to have been committed by the persons and information is received, the police authority is bound to lodge the FIR.
8. I say and submit that in the present case, the application has been given by the Security Officer of Reliance Industry on 09.10.2014 stating that the areas of Reliance Industry have been notified as prohibited area as per the Official Secret Act, 1923 and notification had also been issued by the State Government (which is mentioned in the FIR itself). The Security Officer of Reliance Industry had also produced the notifications which is issued by Gujarat State. The Security Officer had also produced the CDs which is given to him by his informer. In the CDs the picturization which has been done of the prohibited area is recorded.
9. I say and submit that pursuant to the application preliminary inquiry has been done by the police authority and it was found that the allegations which are levelled in the application given by the Security Officer of the Company is genuine and true and hence the FIR has came to be registered on 14.10.2014. In the FIR, the details in relation to inquiry held is mentioned by the police authority. That a bare reading of the FIR it is abundantly clear that the offence has been committed.
10. I say and submit that the contention have been taken by the present applicant that the notifications under the Official Secrets Act, have not been given or produced anywhere. I say and submit that this contention is not true as it is Government notifi9cation and it has been published in the Government Gazette and ignorance would not be any defence.
11. I say and submit that during the investigation it was found that the present applicant Akhil Dineshbhai Parmar is the master mind of this offence. Even Sandeep is also one of the main co-conspirator of this offence. That can be seen from the statement of the arrested accused Aziz Ismail Gandhar. I say and submit that as the inveestigation is as a crucial stage and the applicants are involved in the offence, it would be appropriate for me not to place on record investigation papers.
12. `I say and submit that present applicants are not Page 10 of 33 HC-NIC Page 10 of 35 Created On Wed Mar 01 00:35:57 IST 2017 10 of 35 R/CR.MA/19647/2014 JUDGMENT co-operating the investigating agency therefore, two summons under section 160 have been given to them but they did not come forward to give their statement. Hence, only on this ground the present petition may be dismissed.
13. I say and submit that the present petitioners are saying that the photographs are available on Google site also and hence it would not be proper to say that no offence is committed by them but once there is a notification of State of Gujarat for prohi8biting area then any person entering in that area the said entrance will be considered as an offence. The present accused person had done the recording of the Jetty areas of Reliance Industries which is very sensitive area which is in a deep sea not only that but the present applicant Akhil had made an e-mail id in the name of Aziz Gandhar and then he had uploaded these videos on youtube. Not only that they had also taken the help of the other co-accused who are the labourers of the Reliance Industries. The present applicants-accused persons have told to the labourers to do the photography in the factory area. Pursuant to that labourer has also done the photography, which have been given to Aziz Gandhar and in turn Aziz Gandhar had given the videos to the present applicant. Hence, looking to the facts and circumstances and bare reading of the FIR prima facie the offence is constituted and applicants have committed an offence. Hence this petition may be dismissed by this Hon'ble Court in interest of justice."
32. Mr. Jani submitted that the power of quashing the first information report needs to be exercised very sparingly and with circumspection and that too in the rarest of rare cases. He would submit that this Court may not embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report.
33. He submits that the first information report needs to be considered if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, the law Court is Page 11 of 33 HC-NIC Page 11 of 35 Created On Wed Mar 01 00:35:57 IST 2017 11 of 35 R/CR.MA/19647/2014 JUDGMENT estopped from usurping the jurisdiction of the police since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.
34. In such circumstances referred to above, he prays that there being no merit in this application, the same be rejected, and the police may be permitted to complete the investigation.
Analysis:-
35. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report should be quashed.
36. Before adverting to the rival submissions canvassed on either sides, let me first deal with the preliminary submissions of Mr. Mangukiya. I do not find any merit in the first submission of Mr. Mangukiya that since the three notifications issued by the State Government under the Act, 1923 are a subject matter of challenge before this Court, till an appropriate decision is taken by this Court in that regard, the investigation of the first information report should remain stayed or this Court should defer the hearing till the conclusion of the Special Civil Application No.2130 of 2015. I take notice of the fact that the three notifications are of the years 2010, 2011 and 2012 respectively. They are very much in force. They have been issued by the State Government having regard to the sensitive area. I see no good reason to keep the investigation stayed or defer the hearing of this application on such ground.
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37. So far as the second submission as regards section 13(3) of the Act, 1923 and section 195 of the Cr.P.C. is concerned, the same has no merit.
38 Section 13 of the Act, 1923 is with regard to the restriction on trial of offences, which reads as under;
"13. Restriction on trial of offences.
(1) No Court (other than that of a Magistrate of the first class specially empowered in this behalf by the [appropriate Government] which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act.
(2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, not- withstanding that it is not a case exclusively triable by that Court.
(3) No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the [appropriate Government] or some officer empowered by the [appropriate Government] in this behalf:
(4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in 5*[India] in which the offender may be found.
(5) In this section, the appropriate Government means-
(a) in relation to any offences under section 5 not connected with a prohibited place or with a foreign power, the State Government; and
(b) in relation to any other offence, the Central Government.]"Page 13 of 33
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39. Section 195 of the Code of Criminal Procedure, 1973 reads as under;
"195:- Prosecution for contempt of lawful authority or public servants, for offences against public justice and for offences relating to documents given in evidence-(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188 (both of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate."
40. Section 13(3) of the Act, 1923, and section 195 of the Cr.P.C would come into operation at the stage when the Court intends to take cognizance of an offence and it has nothing to do with the statutory powers of the police to investigate into the first information report, which discloses a cognizable offence in accordance with Chapter XII of the Code. In other words, the statutory power of the police to investigate under the Code is not, in any way, controlled or circumscribed by section 195 of the Cr.P.C or section 13(3) of the Act, 1923. It is, of course, true that upon the charge-sheet, if any, filed on completion of the investigation into such an offence, the Court would not be competent to take cognizance thereof in view of the embargo of section 195 and section 13(3) of the Act, 1923, but nothing therein defers the Court from filing a complaint for the offence on the basis of the first information report and the materials collected during the investigation.
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(see M. Narayandas vs. State of Karnataka, AIR 2004 SC 555).
41 In the aforesaid context, I may refer to a Division Bench Decision of the Delhi High Court in the case of R.S. Ghalwat vs. Union of India, 1981 Criminal Law Journal, 1646. The Court held in para-6 as under;
"6. Section 13(3) of the Official Secrets Act provides that no court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from the appropriate government or some officer empowered by the appropriate Government in this behalf. It is a common case that no complaint as above under the Official Secrets Act was made to start proceedings under Court Martial. Mr. Garg contends that in the absence of sanction under section 13(3) the General Court Martial was not competent to proceed with the trial. We cannot agree. The fallacy in the argument of Mr. Garg is that he reads the procedural aspect of complaint in Section 13(3) as part of substantive offence under the Official Secrets Act. Now the fact is that substantive offence under the Official Secrets Act is defined in Sections 3 and 4 of the said Act. The purview of Section 13(3) relates to the procedural aspect of prosecution of an offence. But Mr. Garg seeks to urge that making of complaint as required by Section 13(3) is itself a part of substantive offence and in the absence no offence under the Official Secrets Act would have been committed. In this he seeks to rely on (AIR 1927 Sind
10) : (27 Cri LJ 1105) Fakir Mohamed v. Emperor, wherein after saying correctly that if no prior sanction is given the trial will be bad, it went on to make the unacceptable comment that Section 195 in reality lays down that the offences therein referred to or rather the facts constituting those offences shall not be deemed to be any offences at all except on the complaint to the persons or the courts therein specified. In our view these observations are too widely stated and cannot be accepted as laying down correct law. These observations omit to notice that there is an essential distinction between an offence and the prosecution for an offence.
The former forms part of the substantive law and the Page 15 of 33 HC-NIC Page 15 of 35 Created On Wed Mar 01 00:35:57 IST 2017 15 of 35 R/CR.MA/19647/2014 JUDGMENT latter of procedural law. An offence is an aggregate of acts or omissions punishable by law while prosecution signifies the procedure for obtaining an adjudication of courts in respect of such acts or omission Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without the requisite sanction makes the entire proceedings ab into void. It is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority concerned to decide in the circumstances of a particular case whether prosecution is necessary. Sanction to prosecute for an offence is not, therefore, an ingredient of the offence, but it really pertains to procedure Kapur Chand Pokhraj v. State of Bombay. The observation that no offence can be brought into existence unless there were a complaint under S. 195 has not been found to be laying down correct law in M. L. Sethi v. R. P. Kapur wherein it was observed that "we are unable to agree with the view expressed by the learned Additional Judicial Commissioner that Section 195 Cr.P.C. really lays down that the offences therein referred to shall not be deemed to be any offences at all, except on the complaint of the persons or the Courts therein specified. An offence is constituted as soon as it is found that the acts which constitute that offence have been committed by the person accused of the offence. It remains an offence whether it is friable by a court or not. If a law prescribes punishment for that offence, the fact that the trial of that offence can only be taken up by courts after certain specified conditions are fulfillled does not make that offence any the less on offence. The limitation laid down by Section 195, Cr.P.C. is, in fact, a limitation only on the power of courts to take cognizance of, and try, offences and does not in any way have the effect of converting an act, which was an offence, into an innocent act. We cannot, therefore, subscribe to the view expressed in that case."
42. I may also refer to a Division Bench decision of the High Court of Jammu and Kashmir in the case of Sewa Ram Nagial vs. Union of India, 1983 Criminal Law Journal, 1788. I may quote the relevant observations as under;
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"5. That a complaint by a person authorised to do so under any provision of law is not a necessary ingredient of the substantive offence, but it clearly lies in the realm of procedure prescribed for the trial of the offence, is no more res Integra: In Kapur Chand Pokraj v. State of Bombay the law on the point was laid down by their Lordships in these words "....There is an essential distinction between an offence and the prosecution for an offence. The former forms part of the substantive law and the latter of procedural law. An offence is an aggregate of acts or omissions punishable by law while prosecution signifies the procedure for obtaining an adjudication of Court in respect of such acts or omissions. Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without the requisite sanction makes the entire proceeding ab initio void. It is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority concerned to decide in the circumstances of a particular case whether prosecution is necessary. Sanction to prosecute for an offence is not, therefore, an ingredient of the offence, but it really pertains to procedure...."
6. Later on, while dealing with the scope of Section 195, Cr. P.C. which is in pari materia with Section 13(1) of the Official Secrets Act, a similar views was taken by the same court in M. L. Sethi v. R. P. Kapur expressly overruling the contrary view expressed by Tyabji, Additional Judicial Commissioner, in Fakir Mohammed v. Emperor AIR 1927 Sind 10 : 1926-27 Cri LJ 1105 and it was held (at Pp. 536-37):
...We are unable to agree with the view expressed by the learned Additional Judicial Commissioner that Section 195, Cr. P.C. really lays down that the offences therein referred to shall not be deemed to be any offences at all except on the complaint of the persons or the Courts therein specified. An offence is constituted as soon as it is found that the acts which constitute that offence have been committed by the person accused of the offence. It remains an offence whether it is triable by a Court or not. If a law prescribes punishment for that offence, the fact that the trial of that offence can only be taken up by Courts after certain specified conditions are fulfilled does not make that offence any the less an offence. The Page 17 of 33 HC-NIC Page 17 of 35 Created On Wed Mar 01 00:35:57 IST 2017 17 of 35 R/CR.MA/19647/2014 JUDGMENT limitation laid down by Section 195, Cr. P.C. is in fact, a limitation only on the power of Courts to take cognizance of, and try, offences and does not in any way have the effect of converting an act, which was an offence, into an innocent act. We cannot, therefore, subscribe to the view expressed in that case ....
7. The law is thus well settled that neither a proper complaint, nor a proper sanction for prosecution of the accused forms part of the offence for which he is to be tried, but the same merely pertain to the procedure to be followed in the trial of the accused for the said offence."
43. Thus, both the preliminary submissions, sans merit, are rejected.
44. Let me now look into the other submissions, but before that, I should look into the provisions of the Act, 1923. The statement of objects and reasons of the Act, 1923 reads as under;
"The position in regard to the protection of official secrets in India is briefly as follows; The provisions of the law which are now in force are: (a) An act of the Legislature in India- The Indian Official Secrets Act, 1889, as amended by the Indian Official Secrets (Amendment) Act, 1904; and (b) A Statute of Parliament - the Official Secrets Act, 1911 (1 and 2 George V.C. 28). The provisions of the British Statute have, as a result of experience gained during the war, been considerably modified by the enactment of the Official Secrets Act, 1920 (10 and 11 George V.C. 75), but the latter Statute does not apply to British India.
It has, for some time past, been recognized that it is unsatisfactory to have two separate laws in force simultaneously in India. Further, although the British Act of 1911 is in force in India difficulties arise in applying it because of the use in it of English common law terms and so on. For these reasons it is desirable that there should be a single consolidated Act applicable to Indian conditions, and the desirability of this has been Page 18 of 33 HC-NIC Page 18 of 35 Created On Wed Mar 01 00:35:57 IST 2017 18 of 35 R/CR.MA/19647/2014 JUDGMENT emphasised by the passing of the British Act of 1920 which has considerably amended the Act of 1911, but is not applicable to India.
The provisions of the British Act of 1911 are ore effective, particularly in the matter of the protection of military secrets than the Indian enactments, and they have been further strengthened by the enactment of the amending Statute of 1920, which is based on experience gained during the War. It is considered desirable, therefore, that the law in India should be assimilated to that in force in the United Kingdom, and the object of this Bill is to consolidate the provisions of the British Acts of 1911 and 1920 and to enact them in a form suitable for India.
As this bill is a purely consolidating measure, it is not necessary to deal with the clauses in detail, but it may be mentioned that it is proposed to omit provisions on the lines of sections 4 and 5 of the Act of 1920, as it is considered that the matters dealt within these sections are sufficiently covered by the provisions of the Indian Telegraph Act, 1885, and the Indian Post Office Act,1898. It this bill is passed it will not be necessary to retain the Indian Acts, and provisions is, therefore, made in clause 15 for their repeal."
45. Section 2(8) of the Act, 1923 defines the term "prohibited place".
"(8)"prohibited place " means-
(a)any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, camp, ship or aircraft belonging to, or occupied by or on behalf of, Government, any military telegraph or telephone so belonging or occupied, any wireless or signal station or office so belonging or occupied and any factory, dockyard or other place so belonging or occupied and used for the purpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models or documents relating thereto, or for the purpose of getting any metals, oil or minerals of use in time of war;Page 19 of 33
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(b)any place not belonging to Government where any munitions of war or any sketches, models, plans or documents relating thereto, are being made, repaired, gotten or stored under contract with, or with any person on behalf of, Government, or otherwise on behalf of Government;
(c)any place belonging to or used for the purpose of Government which is for the time being declared by the Central Government, by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality;
(d)any railway, road, way or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith) or any place used for gas, water or electricity works or other works for purposes of a public character, or any place where any munitions of war or any sketches, models, plans, or documents relating thereto, are being made, repaired, or stored otherwise than on behalf of Government, which is for the time being declared by the Central Government, by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality ;
46. Section 3 provides for the penalties for spying "3. Penalties for spying.
(1) If any person for any purpose prejudicial to the safety or interests of the State-
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or Page 20 of 33 HC-NIC Page 20 of 35 Created On Wed Mar 01 00:35:57 IST 2017 20 of 35 R/CR.MA/19647/2014 JUDGMENT
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly; or indirectly, useful to an enemy or
(c) obtains collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy 1*[or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States];
he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other case to three years.
(2) On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, 3*[information, code or pass word shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
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47. Spying has not been defined in the Act, but its meaning can be gathered from section 3. It means that if any person for any purpose prejudicial to the safety or interests of the State approaches, inspects, passes over, or is in the vicinity of, or enters, any prohibited place or makes any sketch, plan, model or note or video which is calculated to be or might be or is intended to be, directly or indirectly useful to an enemy, or obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information, which is calculated to be or might be or is intended to be, directly or indirectly useful to an enemy or which relates to a matter the disclosure of which is likely to effect the sovereignty and integrity of India, the security of the State or friendly relations with the foreign States, he perform the act of spying.
48. The matter is still at the stage of investigation. Although, it is the defense of the applicants herein that the only idea to video shoot within the prohibited place was to demonstrate or highlight the extent of pollution being caused by the refinery, yet this is a matter which needs to be investigated by the police. It is too dangerous in the facts of this case to accept the defense and quash the first information report. At the cost of repetition, I state that the act of the applicants herein could be termed as very dangerous. The materials, if would have landed up in the hands of the people, who are a potential threat to the security of this nation, the consequences could have been very serious.
49 I am not impressed by the submission canvassed on
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behalf of the applicants that nothing "secret" was recovered from the possession of the applicants so as to meet the requirements of section 3(1)(c) of the Act is concerned. The qualifying word "secret" in section 3(1)(c) has been used only with respect to the official code or password and, therefore, other documents or information need not be secret for establishing the offence under section 3(1)(c) of the Act.
50 In the aforesaid context, I may refer to a decision of the Apex Court in the case of Sama Alana Abdulla vs. State of Gujarat, reported in 1996 AIR 569. In Sama Alana Abdulla (supra), their lordships considered the provisions of section 3(1)(c) of the Act and held as under;
"While providing for a presumption to be raised in prosecution for the offence punishable under that section the phraseology used by the legislature is "if any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated". From the way the said sub- section is worded it becomes apparent that the qualifying word 'secret' has been used only with respect to or in relation to official code or password and the legislature did not intend that the sketch, plan, model, article, note, document or information should also be secret."
51 In Sunil Ranjan Das v. The State, 1977 C.W.N. 1061,(8) following was held :
"The word 'secret' in Section 2(1)(c) of the Official Secrets Act, 1922 qualifies the words "Official code or password" only and not the words "any sketch, plan etc."
appearing thereafter. In order to sustain a charge under the aforesaid section in respect of any sketch, plan etc. it is not necessary to prove that the plan or any other item mentioned was a secret document. It would suffice to Page 23 of 33 HC-NIC Page 23 of 35 Created On Wed Mar 01 00:35:57 IST 2017 23 of 35 R/CR.MA/19647/2014 JUDGMENT show that the plan or any other document obtained and communicated to any other person was calculated to be or might be or was intended to be directly or indirectly useful to the enemy. The word 'enemy' in the expression useful to 'enemy' in the said Section 3(1)(a) means a potential or future enemy or an unfriendly power with which this country might be at some future date in a state of war and not an actual enemy with which this country is at war."
52. It, therefore, appears that even an information which may not be secret but which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign State or useful to an enemy is an offence under Section 3 of the Official Secrets Act. It also appears that word 'enemy' also means an 'unfriendly power.
53. The Supreme Court in the case of Padma Charana Behra vs. State of Orissa and others reported in 2009 Criminal Law Journal 2585 held in paras 6, 7, 10 to 27 as under:
6. The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can 'soft-pedal the course of justice' at a crucial stage of investigation/proceedings. (Vide State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949 : (1982 Cri LJ
819); Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 : (1988 Cri LJ
853). The Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892 : (1993 Cri LJ 600); Mrs. Rupan Deol Bajaj v.Page 24 of 33
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381); G. Sagar Suri v. State of U.P., AIR 2000 SC 754 :
(2000 Cri LJ 824) and Ajay Mitra v. State of M.P., AIR 2003 SC 1069 : (2003 Cri LJ 1249).
7. Similar view has been taken by the Apex Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 4 SCC 70; Vir Prakash Sharma v. Anil Kumar Agarwal, (2007) 7 SCC 373 : (2007 Cri LJ 3735);
Didigam Bikshapathi v. State of Andhra Pradesh, (2008) 2 SCC 403 : (2008 Cri LJ 724) and Sunita Jain v. Pawan Kumar Jain, (2008) 2 SCC 705.
10. In L. V. Jadhav v. Shankarrao Abasaheb Pawar, AIR 1983 SC 1219 : (1983 Cri LJ 1501) the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the High Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceedings against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
11. In Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : (1999 Cri LJ 4325) the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj v. State N.C.T. of Delhi, AIR 1999 SC 1216 : (1999 Cri LJ 1833) and observed that the inherent power of the High Court should be limited to very extreme exceptions.
12. In State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, the Hon'ble Supreme Court laid down the guidelines for exercising the inherent power as under :-
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 FIR do not disclose a cognizance offence, justifying Page 25 of 33 HC-NIC Page 25 of 35 Created On Wed Mar 01 00:35:57 IST 2017 25 of 35 R/CR.MA/19647/2014 JUDGMENT an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 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 FIR 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 S. 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 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.
13. In Ganesh Narayan Hegde v. S. Bangarappa, (1995) 4 SCC 41 : (1995 Cri LJ 2935) an earlier decision in Mrs. Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 : (1990 Cri LJ 320) has been cited with approval for the proposition that there should be no undue interference by the High Court as no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at this stage. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded Page 26 of 33 HC-NIC Page 26 of 35 Created On Wed Mar 01 00:35:57 IST 2017 26 of 35 R/CR.MA/19647/2014 JUDGMENT with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges.
14. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, AIR 2005 SC 9 : (2005 Cri LJ 92) the Hon'ble Apex Court held that criminal proceeding's can be quashed but such power is to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the statutory provisions itself. It is to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exists. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. A case where the FIR or the complaint does not disclose any offence or is frivolous, vexatious or oppressive, the proceedings can be quashed. It is, however, not necessary that at this stage there should be meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. The allegations have to be read as a whole.
15. In State of W.B. v. Narayan K. Patodia, AIR 2000 SC 1405 : (2000 Cri LJ 1811), the Apex Court observed that lodging an FIR is only the first step of investigation by the police. Premature quashing of the FIR at the initial stage instead of serving the cause of justice, harmed it. The inherent powers of the High Court are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
Thus, in view of the above, law can be summarized on the subject that criminal proceedings/FIR/complaint is liable to be quashed only if the Court comes to the conclusion that the FIR or complaint does not disclose any offence or is frivolous, vexatious or oppressive. Power of quashing can be exercised by the Court only in exceptional circumstances wherein the Court is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of the process of the Court or that the interest of justice otherwise calls for quashing of the FIR or complaint.
LIMITATIONS ON EXAMINING QUESTIONS OF MALA FIDE Page 27 of 33 HC-NIC Page 27 of 35 Created On Wed Mar 01 00:35:57 IST 2017 27 of 35 R/CR.MA/19647/2014 JUDGMENT IN QUASHING APPLICATIONS UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE
16. The issue of mala fide decided by the Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal (Reported in 1992 Cri LJ 527) (supra) held as under :-
"At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides." (Emphasis added)
17. In Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 : (1987 Cri LJ 793) the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under :-
"It is well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."
(Emphasis added)
18. Similarly, in State of Bihar v. J. A. C. Saldanha, (AIR 1980 SC 326) (supra), the Apex Court has held as under :-
"It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing the offence." (Emphasis added)
19. In Sarjudas v. State of Gujarat, 1999 (8) SCC 508 : (2000 Cri LJ 509) the Hon'ble Supreme Court held that there must be cogent evidence of mala fides or malicious intention of the informant or the complainant for taking note of the allegations of mala fide. The bald statement in this respect is not sufficient.
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20. In State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540, it has been held that probabilities of the prosecution version cannot be analyzed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus :
"It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings." (Emphasis added)
21. In M. Narayandas v. State of Karnataka, (2003) 11 SCC 251 : (2004 Cri LJ 822) the Apex Court rejected the contention that proceedings were liable to be quashed as the same stood initiated on account of personal vendetta observing that complaint has to be tested and weighed after the evidence is collected.
22. Similar view has been explained by the Apex Court in State of Bihar v. Shri P. P. Sharma, AIR 1991 SC 1260 : (1991 Cri LJ 1438) and Zandu Pharmaceutical Works Ltd. (2005 Cri LJ 92) (supra).
23. Thus, it is evident that in case there is sufficient evidence against the accused, which may establish the charge against him, even if the bias/mala fide is established, the proceedings cannot be quashed.
DEFENCE AND INVESTIGATIONAL MATERIAL NOT TO BE CONSIDERED AT THIS STAGE :
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24. In Savita v. State of Rajasthan, (2005) 12 SCC 338, it has been held that at the stage when investigation had not even started and charge-sheet had not been submitted the High Court could not take into consideration extraneous material given by the party concerned for reaching the conclusion that no offence was disclosed. This in fact was too premature a stage for the High Court to give such a finding when even the investigation had not started and the investigating agency had no occasion to find out whether there was material to file a charge-sheet or not.
25. Similarly in State of T. N. v. Thirukkural Perumal, (1995) 2 SCC 449, it has been held that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation. The Court held as under:-
The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not Justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition.....seeking the quashing of the FIR and the criminal proceedings.
26. In S. M. Datta v. State of Gujarat, (2001) 7 SCC 659 : (2001 Cri LJ 4195) the practice of the High Court in scuttling criminal proceedings at the initial stage was criticised, except in the rarest cases where the same amounted to abuse of the process of law. Only broad allegations were to be seen and genuineness of the FIR could not be looked into at this stage. The Court observed as under :-
"Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of Page 30 of 33 HC-NIC Page 30 of 35 Created On Wed Mar 01 00:35:57 IST 2017 30 of 35 R/CR.MA/19647/2014 JUDGMENT the maker thereof. It is not a document which requires decision with exactitude, neither is it a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is in this context, however, one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The first information report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law Courts are barred from usurping the jurisdiction of the police since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.(Emphasis added)
27. In M/s. Medchl Chemicals and Pharma (P) Ltd. v. M/s. Biological E. Ltd., AIR 2000 SC 1869 : (2000 Cri LJ 1487) the Apex Court observed that the complaint or charge-sheet can only be quashed in the rarest of rare exceptional case, but where the allegations on the face of the complaint do not constitute an offence, criminal proceedings may be unhesitantly quashed. The Court held as follows :-
"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the provision. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The Jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge- sheet on the face of it does not constitute or Page 31 of 33 HC-NIC Page 31 of 35 Created On Wed Mar 01 00:35:57 IST 2017 31 of 35 R/CR.MA/19647/2014 JUDGMENT disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount.(Emphasis added)
54. Bearing in mind the principles laid down by the Supreme Court referred to above, I am of the view that a prima facie case is made out, and therefore, at this stage, it is not legally permissible for this Court to interfere with the investigation and quash the F.I.R. It would not be proper or rather impermissible for this Court to consider the merits of the allegations or test the veracity of the allegations. I should not ignore the caution sounded by the Supreme Court that the High Court, being the highest Court of a State, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidences have not been collected and produced before the Court.
55. It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of quashing of the first information report at the stage of investigation and shall not be construed as an expression of the final opinion in the main matter or any other proceedings.
56. In the result, this application fails and is hereby rejected. Notice stands discharged. The ad-interim order, earlier granted, stands vacated forthwith.
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 19647 of 2014 [On note for speaking to minutes of order dated 08/02/2017 in R/CR.MA/19647/2014 ] ========================================================== AKHIL DINESHBHAI PARMAR & 1....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1 - 2 MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 - 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 MR. MITESH AMIN, LD. PUBLIC PROSECUTOR with MR. P.K. JANI, LD.ADDL. ADV. GENERAL for the Respondent(s) No. 1
========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/02/2017 ORAL ORDER This note for speaking to minutes is filed by the State, pointing out that, inadvertently, in the order dated 08.02.2017, the name of Mr. Mitesh Amin, the learned Public Prosecutor, is not shown in the appearance.
The Registry is directed to show the name of Mr. Mitesh Amin, the learned Public Prosecutor along with Mr. P.K. Jani, the learned Additional Advocate General appearing for the State.
The necessary correction may be effected, and a fresh writ of the judgment and order be issued.
This note is, accordingly, disposed of.
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