Gujarat High Court
Himanshubhai Jagjivanbhai Patel vs State Of Gujarat on 15 July, 2021
Equivalent citations: AIRONLINE 2021 GUJ 1415
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/14993/2019 ORDER DATED: 15/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 14993 of 2019
With
CRIMINAL MISC. APPLICATION (FOR JOINING PARTY) NO.
1 of 2020
In
R/CRIMINAL MISC. APPLICATION NO. 14993 of 2019
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HIMANSHUBHAI JAGJIVANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR AD SHAH(733) for the Applicant(s) No. 1,2,3,4,5,6,7
MR EKANT G AHUJA(5323) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/07/2021
ORAL ORDER
1. Rule. Ms. Monali Bhatt, learned APP and Mr. Ekant G.Ahuja, learned advocate for respondent no.2, waive service of notice of Rule on behalf of respective parties. With the consent of learned advocates appearing for the parties, the matter is heard today finally.
2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for short) with prayer to quash and set aside the proceedings of C.R.No.I-372/2016, Page 1 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 registered at Malaviyanagar Police Station, Rajkot for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of IPC.
3. The petitioner no.1 is the administrator of P.V.Modi School, Indraprasth Nagar at Rajkot. Petitioner nos.2 to 6 are the trustees of Shri P.V.Modi Charitable Trust, which runs P.V.Modi School. The present petitioner nos.2 to 4 are also trustees of Vidhyasagar Charitable Trust, which has established the Modi School (V.J.Modi). Petitioner no.7 is the principal of V.J. Modi School at village Ishwariya, Rajkot.
3.1 It is stated by the petitioners that P.V. Modi Charitable Trust is registered under Bombay Public Trusts Act, which has established P.V.Modi School in the year 1999 for imparting education to secondary and higher secondary students and the said school is affiliated with Gujarat State Board.
3.2 Vidyasagar Charitable Trust is having three trustees. It is contended that V.J. Modi School at Page 2 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 Ishwariya came to be affiliated with CBSE in the year 2011 for imparting education to standard I to standard X and subsequently the provisional affiliation was extended. The petitioners state that CBSE had also issued upgradation by communication dated 21.12.2013 and by communication dated 12.06.2015, approval was given for introduction of additional subjects for senior school certificate examination and by a letter dated 03.05.2017, CBSE has further granted extension of provisional affiliation till 31.03.2022.
3.3 As per the petitioners, the trustees of both the trusts i.e. P.V.Modi Charitable Trust and Vidyasagar Charitable Trust are from the same family, who proposed to have certain classes of CBSE at P.V.Modi School as a temporary arrangement, which according to the petitioners was upon the request made by some of the parents. Thus, the students who opted for CBSE at P.V.Modi Schools, were given admission at Modi School at Ishwariya village having affiliation with CBSE. The registrations were in the general register of Modi School and the fee receipts and identity cards were issued of Page 3 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 Modi School.
3.4 It is therefore stated that, for convenience of the students and the parents, the classes were taken at P.V.Modi School and such decision was taken keeping in view the distance and the demand of parents of the students who wanted the children to attend the premises of P.V. Modi School; thus were permitted to attend the school under the name of P.V.Modi, but the students attended the classes run under the courses of CBSE by Modi School (V.J. Modi). It is contended by the petitioners that the students identity cards and fee receipts of Modi School, Ishwariya, Rajkot were in connection to the valid admission towards the CBSE affiliation. 3.5 The petitioners have raised grievance that it was only on media report, the respondent no.2 had approached the Malaviyanagar Police Station with the case of cheating, criminal breach of trust and forgery of receipts and identity cards. It is stated by the petitioners that the de facto complainant - Khodidas Tulsibhai Gondalia realized his mistake of being misdirected by the Page 4 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 media report to have filed the FIR at Malaviyanagar Police Station. Petitioners state that the children of the complainant are still pursuing studies in the same school and as the complainant is desirous to quash the FIR, the present petition has been filed.
4. The de facto complainant - Khodidas Tulsibhai Gondalia was present before the virtual Court on 09.07.2021. The affidavit filed by him was verified by this Court. He had confirmed the execution of the affidavit and also affirmed the contents of his desire of non prosecuting the accused of the impugned FIR. 4.1 Mr. Khodidas Tulsibhai Gondalia stated that his children are attending the school conducted by Modi School at the premises of P.V.Modi School situated at Indraprasthnagar at Rajkot and he has acknowledged that the parents of other children were also desirous that their children having admission at Modi School, were permitted to attend classes of CBSE courses conducted at P.V.Modi School at Indraprasthnagar, Rajkot. According to the complainant, the said premises, where his children Page 5 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 are attending classes are convenient, since the Modi School at Ishwariya, Rajkot is at a distance from P.V. Modi school, Indraprasthnagar, Rajkot. The de facto complainant has realized that his decision to file complaint was based on improper information and he has no objection if the complaint is quashed.
5. The police report produce on record of Police Sub-inspector, Malaviyanagar Police Station, dated 13.07.2021, states that there is no recognition of CBSE Board to P.V. Modi School; however, V.J.Modi School at Ishwariya , Rajkot is given the affiliation of CBSE Board; and as per the report there is no case under Sections 465, 467, 468 and 471 of IPC. The reports also states that the other students are the victims of the offence under Sections 406 and 420 of IPC.
6. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Hon'ble Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process Page 6 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The following observations of the Hon'ble Apex Court read as under:
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation Page 7 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) 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;
(d) 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 Section 155(2) of the Code;
(e) 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;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;Page 8 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021
R/CR.MA/14993/2019 ORDER DATED: 15/07/2021
(g) 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."
7. The above parameters are not exhaustive. Facts and circumstances may warrant interference of the Court, where aggrieved may pray for compounding the case. Sections 406 and 420 of IPC are made compoundable by way of provision under Section 320 Cr.P.C. The said offences can be compounded with the permission of the Court and the person who feels himself to be cheated, can compound the same.
7.1 Here, in this case, the de facto complainant proposes to compound the complaint and further in the interest of future of the children, this Court also deems it appropriate that the inherent jurisdiction under Section 482 Cr.P.C. is required to be exercised. Now, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of Page 9 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 precious judicial time, as there would remain no possibility of any conviction in the case. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the petitioners for securing the ends of justice.
8. In the result, the petition is allowed. The impugned FIR being C.R.No.I-372/2016, registered at Malaviyanagar Police Station, Rajkot, and the proceedings, if any, initiated in pursuance thereof are quashed and set aside. Rule is made absolute.
9. Criminal Misc. Application No.1 of 2020, has been moved by the proposed parties to join them as party respondents in the main application.
9.1 This Court is of the opinion that since, the de facto complainant has now no issues against the present petitioners and when he has given his consent by filing affidavit and by personally remaining present before the virtual Court for quashment of the FIR, and when the Page 10 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021 R/CR.MA/14993/2019 ORDER DATED: 15/07/2021 report of the police with the opinion of legal officer that no offence under Sections 465, 467, 468 and 471 of IPC is made out, the application for joining party is not required to be entertained. Further, the impugned FIR is already quashed, therefore no cause would survive to join them as party respondents in the main petition. Hence, the application stands disposed of accordingly.
(GITA GOPI, J.) Pankaj Page 11 of 11 Downloaded on : Wed Sep 08 16:50:15 IST 2021