Bhupendra Dayalji Bhanushali vs State Of Gujarat & on 21 January, 2014

[Cites 6, Cited by 0]

Gujarat High Court

Bhupendra Dayalji Bhanushali vs State Of Gujarat & on 21 January, 2014

Bench: G.R.Udhwani

        R/CR.MA/291/2013                                   JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                           FIR/ORDER) NO. 291 of 2013



FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE G.R.UDHWANI
================================================================

1    Whether Reporters of Local Papers may be allowed to see          NO
     the judgment ?

2    To be referred to the Reporter or not ?                          NO

3    Whether their Lordships wish to see the fair copy of the         NO
     judgment ?

4    Whether this case involves a substantial question of law as NO
     to the interpretation of the Constitution of India, 1950 or any
     order made thereunder ?

5    Whether it is to be circulated to the civil judge ?              NO

================================================================
             BHUPENDRA DAYALJI BHANUSHALI....Applicant(s)
                              Versus
                STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR TEJAS M BAROT, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS MAITHILI MEHTA, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
================================================================
         CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
                    Date : 21/01/2014


                               ORAL JUDGMENT

1. Rule. Learned APP waives service.

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R/CR.MA/291/2013 JUDGMENT

2. By an order dated 22.04.2013 this Court issued notice for final hearing returnable on 24.06.2013. Affidavit has been filed affirming the service of the notice upon the respondents No.1 and 2. Respondent No.2 has not appeared.

3. Considering the rival contentions, it appears that the respondent No.2 invoked the jurisdiction of the Court of the learned Magistrate for the offences punishable under Section 193 of the Indian Penal Code ( for short "IPC" ).

4. Briefly stated, the case of second respondent was that in the Civil Suit No.25 of 2006 an objectionable caveat was filed and therefore the offence as aforesaid was made out. Prior to the complaint in question, another complaint also came to be filed on the same subject, which, however, was not pressed by the complainant.

5. One of the contention going to the root of the matter is that unless the court concerned was a complainant, the learned Magistrate was not competent to take cognizance of offence in view of Section 340 read with Section 195 of the Code of Criminal Procedure ( for short "Cr.P.C." ). Both the said provisions read as under:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No Court shall Page 2 of 6 R/CR.MA/291/2013 JUDGMENT take cognizance--

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)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;

(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or sub clause (ii), [except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate].

(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of subsection (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this Page 3 of 6 R/CR.MA/291/2013 JUDGMENT section.

(4) For the purposes of clause (b) of subsection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that--

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

"340. Procedure in cases mentioned in section 195 : (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of subsection (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before Page 4 of 6 R/CR.MA/291/2013 JUDGMENT such Magistrate.

(2) The power conferred on a Court by subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195.

(3) A complaint made under this section shall be signed,--

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, "Court" has the same meaning as in section 195."

6. It is thus apparent on bare perusal of the provisions as above that no cognizance of any of the offences referred to in Section 195(1)(b) which includes Section 193 of IPC can be taken unless the Court in whose proceedings the offence complained of is committed and that Court directs the lodgment of the complaint. In the instant case, concededly, the respondent No.2 moved on its own accord and no complaint was ever filed by the Court hearing aforementioned Civil Suit No.25 of 2006. Even otherwise the complainant has made a grievance against lodgment of the caveat. By no stretch of imagination, mere lodgment of caveat as permissible under the law would expose the applicant to prosecution.

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R/CR.MA/291/2013 JUDGMENT

7. In that view of the matter, the complaint and the subsequent orders on such complaint cannot be sustained. Accordingly, the proceedings are required to be quashed. The Criminal Case No.1997 of 2010 pending in the Court of learned 13th Additional Chief Judicial Magistrate, Anand and the charge below Exh.1 are quashed. Rule is made absolute. There shall be no order as to costs. Direct service is permitted.

(G.R.UDHWANI, J.) syed/ Page 6 of 6

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