Gujarat High Court
Shaileshbhai Mohanlal Patel vs State Of Gujarat on 26 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 9620 of 2018
With
R/CRIMINAL MISC. APPLICATION NO. 8726 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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SHAILESHBHAI MOHANLAL PATEL & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRATIK B BAROT (3711) for the Applicant(s) No. 1,2
MS TEJAL A VASHI (2704) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/10/2021
ORAL JUDGMENT
1. Rule. Learned advocates waive service of notice of rule on behalf of the respective respondents. With the consent of both the sides, the matter was taken up for final hearing.
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2. Vide order dated 28.06.2021 passed by the coordinate Bench of this Court, Criminal Misc. Application No. 9620 of 2018 was allowed qua the applicant No.1-Shaileshbhai Mohanlal Patel, original accused No.2, on the basis of settlement with the respondent No.2 and hence, Criminal Misc. Application No.9620 of 2018 stands disposed of qua the applicant No.1-original accused No.2 and is heard and decided qua applicant No.2-original accused No.3.
3. Both these applications have been filed under Section 482 of the Code of Criminal Procedure seeking quashment of the impugned First Information Report being C.R. No. I - 177 of 2017 registered with Patan City 'B' Division Police Station, District : Patan dated 28.11.2017 for offences punishable under Sections 354(A)(1)(iv), 469, 504, 506, 500, 509 and 120B of Indian Penal Code and all consequential proceedings initiated in pursuance thereof.
3.1 Criminal Misc. Application No.9620 of 2018 is preferred by applicant-original accused No.3; whereas, Criminal Misc. Application No.8726 of 2018 is preferred by applicant-original accused No.1.
4. The facts, in a nutshell, are as under;
The applicants herein are the office bearers of Hemchandracharya North Gujarat University, Patan. On 28.11.2017 the respondent No.2 herein filed the impugned complaint against three accused, including the applicants herein, inter alia alleging that on 25.06.2016 some Television News Channels reported a news items in which some scandalous remarks were made against her and one Dr. Adesh Pal, who happened to be the Vice Chancellor of Gujarat University at the relevant time and some Page 2 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 posters were also allegedly pasted in the premises of the University portraying that respondent No.2 and Dr. Adesh Pal were into an illicit relationship. It is alleged that on the next day, i.e. on 26.06.2016 the applicants herein gave interview in some News Channel wherein they had referred to an event of applying posters in the campus on the previous day. By doing so, the applicants allegedly asserted for the removal of Dr. Adesh Pal as faculty member of the University. It is also alleged that to scuttle the journey of Dr. Adesh Pal as the Vice Chancellor of Gujarat University, the applicants and co-accused used the respondent No.2 as a medium so as to harm the reputation of Dr. Adesh Pal.
4.1 The above complaint was numbered as N.C. No. 05/2016 with Patan 'B' Division Police Station under Sections 500 and 120B of IPC. Being aggrieved by the non-addition of certain sections, the respondent No.2 herein had preferred Special Criminal Application No.6682 of 2017 and Criminal Misc. Application No.19230 of 2016 before this Court seeking transfer of investigation to D.S.P., Patan. Both the above matters were heard together and were disposed of by common order dated 03.10.2017 whereby, a direction was issued to the D.S.P. concerned to look into the matter and to take necessary action thereof. Pursuant to the above order passed by this Court, the impugned complaint came to be registered under Sections 354(A)(1)(iv), 469, 504, 506, 500, 509 and 120B of IPC against the applicants and co-accused. Aggrieved by the same, the applicants have preferred this application seeking quashment of the impugned complaint.
5. Learned advocate Mr. Pratik Barot appearing for the applicants submitted that the allegations made in the impugned complaint are general in nature and that no specific details have been provided as Page 3 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 regards the dates, how and in what manner, the incidents alleged in the impugned complaint had taken place. It is submitted that respondent No.2 is being used as a pawn by Dr. Adesh Pal, who was the Vice Chancellor of Gujarat University at the relevant time so as to counter the various communications as whistle-blower that were addressed by original accused No.1-Kirit Chimanlal Patel, who was a Member of the Academic Counsel, to the Vice Chancellor of Hemchandracharya North Gujarat University, Patan against said Dr. Adesh Pal in relation to the alleged wrong doings / misappropriation of the funds of Hemchandracharya North Gujarat University, Patan by Dr. Adesh Pal. The impugned complaint has been filed with a view to tarnish the image of the applicants, who are office bearers of Hemchandracharya North Gujarat University, Patan, as also of original accused No.1, who is a sitting Member of Legislative Assembly (MLA) from the State and also happens to be the brother of applicant-original accused No.3. He further submitted that on 26.11.2017 the original accused No.1 got ticket to contest the Assembly Elections of the State and on 28.11.2017 the impugned complaint came to be registered.
5.1 Learned advocate Mr. Barot pointed out that in pursuance of the N.C. complaint filed by respondent No.2, the police carried out necessary investigation and found that, no offence under Sections 500 and 120B was made out against the applicants, which is evident from the various reports addressed by Police Inspector, Patan City 'B' Division Police Station to District Superintendent of Police, Patan from 03.09.2016 to 12.11.2016. However, by utilizing the order dated 03.10.2017 passed by this Court in Special Criminal Application No.6682 of 2017 as a weapon, the offence under Sections 354(A)(1)(iv), 469, 504, 506 and 509 of IPC came to be added though the police had not found any material against Page 4 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 the applicants. The shoulders of the respondent-complainant is being used to target the applicants and that pursuant to the filing of the impugned complaint, no new material has been found. Hence, the impugned complaint is a clear abuse of the process of law and has been instituted maliciously with the ulterior motive of wreaking vengeance against the applicants and co-accused due to personal grudge.
5.2 It was further submitted by learned advocate Mr. Barot for the applicants that Hemchandracharya North Gujarat University, Patan had also constituted a Committee to inquire into the allegations made by respondent No.2. The said Committee had carried out a detailed inquiry into the matter and had also examined the Computers of the University, on which certain posters were allegedly downloaded and eventually published with the intention to harm the reputation and modesty of respondent No.2. The said Committee submitted its report to the Vice Chancellor of the University opining that neither of the two Computers had any history of downloads nor any objectionable material/s was found upon examination of the said Computers. The CPUs of the Computers were also sent for FSL examination and the Directorate of Forensic Science, Gujarat State has given its opinion vide communication dated 21.09.2021. According to the said communication, no incriminating material was found in the said Computers. It was, accordingly, urged that the present application may be allowed in exercise of the inherent powers under Section 482 of Cr.P.C.
6. Learned advocate Ms. Tejal Vashi appearing for respondent- original complainant submitted that the applicants had made all efforts to ensure that the reputation of the complainant is tarnished to such an extent that she is compelled to leave her job as faculty member of the Page 5 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 University. The applicants made false claims about her character before Media Channels and also pasted photos at different places within the University premises of her with her Guide for Ph.D - Dr. Adesh Pal portraying that they were into an illicit relationship. It was only after the directions issued by this Court that offence under Section 354 of IPC and other sections came to be added and hence, this Court may not exercise its discretion in favour of the applicants. Learned advocate Ms. Vashi relied upon the judgment rendered by the Apex Court in case of Priti Saraf and another v. State of NCT of Delhi and another, AIR 2021 SC 1531, to submit that the complaint in its entirety shall have to be examined on the basis of the allegations made in the FIR and that this Court, at this stage, is under no obligation to examine the correctness of the allegations made therein.
7. Learned APP Mr. Pranav Trivedi adopted the submissions advanced by learned advocate Ms. Vashi and submitted that prima facie, the offence alleged is made out against the applicants. Hence, this Court may not entertain these applications.
8. Heard learned advocates on both the sides. In the impugned complaint, it is averred that the respondent herein is doing her Ph.D in English Literature with one Dr. Adesh Pal as her Guide. A reading of the complaint in its entirety would show that it narrates about different instances when the applicants had administered threats to the complainant. The first instance is said to have occurred two months before 26.06.2016 in which the applicants had allegedly made representation before the University against the complainant and her father and had sought removal of the complainant from the University. The second instance is said to have taken place before about four months Page 6 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 in front of Girls Hostel of North Gujarat University in which the applicants had threatened the complainant that she should not cohabit with Dr. Adesh Pal else her character would be tarnished. The next instance is said to have taken place on any day between 1800 - 1840 hrs. when the complainant and one of her Research Associate - Chaudhary Rameshbhai Hirabhai were passing through Diaspora Centre and English Department of the University. It is averred that during such time, the applicants (in Criminal Misc. Application No.9620 of 2018) had threatened the complainant to leave the company of Dr. Adesh Pal else her character would be tarnished.
9. In the impugned complaint, the motive attributed by the complainant behind the alleged harassment by the applicants-accused is their ill-intention to take over the Diaspora Centre of the University and that in the year 2011 when elections to the Executive Committee of the University were held, the charge of Member of Executive Committee was given to applicant No.2-original accused No.3 though it was the turn of said Dr. Adesh Pal to get such charge and against which Dr. Adesh Pal have preferred petition before this Court. The complainant further alleges that the applicants carried the oblique motive of preventing said Dr. Adesh Pal from becoming a Member of the Search Committee for selecting the Vice Chancellor of the University and in order to cause damage to the reputation of said Dr. Adesh Pal and to achieve their ulterior motive, the applicants made the complainant a medium for tarnishing the image of Dr. Adesh Pal.
10. A plain reading of the impugned complaint shows that it misses out on specifics. The complainant has not given any particulars or details as to when the alleged instances of harassment had taken place. One of the Page 7 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 instances is said to have taken place two months before June 2016 and the other four months before the filing of the impugned complaint. The last instance is said to have taken place on some day in the evening hours. The allegations made in the impugned complaint appear to be general in nature and unspecific. In fact, it appears that the issue relates to some internal political rivalry between different factions of the University as the complainant has narrated about events as to how a particular individual was restricted from becoming a member of the Executive Committee / Search Committee of Vice Chancellor of the University.
11. The Internal Committee of Hemchandracharya North Gujarat University, Patan had made a detailed inquiry into the matter and had also examined the Computers of the University in connection with the downloading of alleged posters of respondent No.2; however, no objectionable material was found in the said Computers. Apart from this the Department of Forensic Science, in its report dated 21.09.2021, has stated that no incriminating material/s was found in the Computers, which allegedly contained objectionable material (posters / pictures) regarding respondent No.2. Hence, there does not appear to be any substance in the allegations made by respondent No.2 regarding the alleged objectionable photos / pictures.
12. In Vineet Kumar and others v. State of Uttar Pradesh and another, (2017) 13 SCC 369, it has been held that the inherent power given to the High Court under Section 482 of Cr.P.C. is with the purpose and object of advancement of justice and that, in case the solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. It is further held that when there are materials to indicate that a criminal proceeding is Page 8 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 of Cr.P.C. to quash the proceeding.
13. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-
"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 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 Page 9 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021 R/CR.MA/9620/2018 JUDGMENT DATED: 26/10/2021 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;
(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."
14. Considering the facts and circumstances of the case and the principle laid down by the Apex Court in the above decisions, this Court is of the opinion that the impugned complaint filed by respondent No.2 is a clear misuse and abuse of the process of law and deserves to be quashed and set aside in exercise of the inherent powers under Section 482 of Cr.P.C.
15. For the foregoing reasons, both the applications are allowed. The impugned First Information Report being C.R. No. I - 177 of 2017 registered with Patan City 'B' Division Police Station, District : Patan dated 28.11.2017 as also all the consequential proceedings initiated in pursuance thereof are quashed and set aside qua the applicants, original accused Nos.1 & 3. Rule is made absolute.
(GITA GOPI, J) FURTHER ORDER After the judgment was pronounced, learned advocate Ms. Vashi appearing for respondent No.2 prayed for stay of this order for a reasonable period; however, for the reasons recorded in the judgment, the request made by learned advocate Ms. Vashi is rejected.
(GITA GOPI, J) PRAVIN KARUNAN Page 10 of 10 Downloaded on : Wed Oct 27 05:26:48 IST 2021