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2015 DIGILAW 425 (GUJ)

Jayshree Chandrakant Bhatt v. State of Gujarat

2015-04-10

R.D.KOTHARI

body2015
JUDGMENT : R.D. Kothari, J. The applicant seeks amendment in the application. 2. Heard learned advocate Mr. Budhbhatti for the applicant and respondent no. 2 - party-in-person. 3. The learned advocate for the applicant has drawn attention of the Court to the proposed draft amendment, wherein grounds (I), (J), (K) & (L) are mentioned and additional relief (11)(G) is mentioned. 4. Opposing the proposed draft amendment respondent no. 2 - party -in-person has drawn attention of the Court to the order passed by this Court in Criminal Revision Application No. 478 of 2014 on 05.09.2014. Further, it was submitted that the draft amendment is not proper, more particularly, the relief clause wherein the applicant's prayer gives impression that the charges against all are to be quashed. At this stage, and more particularly, in case wherein besides the present applicant, there are other accused also, such prayer cannot be granted. 5. In reply, the learned advocate for the applicant submits that his prayer is restricted for quashing of the charges and proceedings in respect of the applicant only. 6. Considering the submissions made by the learned advocate for the applicant and respondent no. 2 - party-in-person and on perusing the draft amendment, the proposed amendment is allowed. The applicant to carry out the amendment accordingly. 6.1. The applicant has carried out the amendment. With the consent of the parties, the matter is taken up for final hearing. 7. The applicant in the present revision application claims to be an advocate being aggrieved by the common order passed by the learned 4th Additional Sessions Judge, Ahmedabad Rural below Exhibit-12 and Exhibit-28 in Sessions Case No. 68 of 2013 on 14.08.2014 has filed the present revision application. By the above referred order, the learned trial Court was pleased to dismiss the applicants discharge application. 8. The few relevant facts are as under. 9. A complaint being C.R. No. I-363 of 2001 was filed at Satellite Police Station for the offences under Sections 376 and 506 (2) of the Indian Penal Code. The said complaint was filed by the victim. It was submitted at the time of hearing that in the said complaint the police after inquiry has filed "B" Summary Report. That has led respondent no. 2 - party-in-person and sole accused in that complaint, to file criminal case no. The said complaint was filed by the victim. It was submitted at the time of hearing that in the said complaint the police after inquiry has filed "B" Summary Report. That has led respondent no. 2 - party-in-person and sole accused in that complaint, to file criminal case no. 5361 of 2005 before the Chief Judicial Magistrate Ahmedabad, for offences under Sections 389, 511, 211, 120-B and 37 of the Indian Penal Code. It was submitted that initially process was not issued against the present applicant and, therefore, respondent no. 2 - party-in-person moved the Sessions Court and on being order passed by the Sessions Court, process was issued against the present applicant also. Thereafter, the present applicant had moved this Court to quash the criminal proceedings against her. Later on, the said proceedings came to be withdrawn with a liberty to file discharge application. Accordingly, the applicant had filed discharge application and the same came to be rejected by the learned Sessions Court. Hence, the present revision application. 10. Heard learned advocate Mr. Budhbhatti for the applicant and respondent no. 2 - party-in-person. 11. Learned advocate Mr. Budhbhatti for the applicant has submitted that on going through the complaint it would appear that no allegations are made against the present applicant and, therefore, there is no prima facie case against the present applicant. That being so, the learned trial Court has committed serious error of law and fact in rejecting the discharge application of the applicant. It was submitted that the order of the trial Court cannot be said to be proper, legal or correct and hence, the present application should be dismissed. 12. As against that respondent no. 2 has drawn attention of the Court to the order under challenge. Referring to the said order, it was pointed out that earlier the present applicant has filed discharge application before the Chief Judicial Magistrate, Ahmedabad. The said application of the applicant came to be rejected. The applicant did not pursue that order before the higher forum and thereafter before the Sessions Court again the discharge application was filed. It was submitted that the applicant ought to have challenged the order passed by the Chief Judicial Magistrate, before the Sessions Court, hence, the present revision application is second revision and the said second revision application is clearly barred under Section 397 (3) of the Criminal Procedure Code. It was submitted that the applicant ought to have challenged the order passed by the Chief Judicial Magistrate, before the Sessions Court, hence, the present revision application is second revision and the said second revision application is clearly barred under Section 397 (3) of the Criminal Procedure Code. In this regard, respondent no. 2 has drawn attention of the Court to the decision of the Apex Court in the case of Jagir Singh v. Ranbir Singh & Anr. AIR 1979 SC 381 . Respondent no. 2 has submitted that there are ample and also direct evidence connecting the present applicant and, therefore, the present application should be dismissed. In this regard attention was drawn to the statement made by the victim before the learned trial Court prior to the framing of the charges. Drawing attention to the relevant part of her detailed statement, it was submitted that the victim's father, who was undergoing imprisonment in connection with some Sessions case has obtained interim temporary bail with the aid of the present applicant by producing fake certificate. That being so, the present revision application should not to be allowed. It was also submitted that besides the statement of the victim, there are statements of other witnesses also. Hence, the learned trial Court has rightly rejected the discharge application of the applicant. 12.1. Respondent no. 2 has also drawn attention to the detailed reply filed by him in this revision application which is at page 35. Referring the relevant part, it was submitted that the applicant has committed fraud before this Court and, therefore, also this application should be rejected. 13. Heard learned APP Mr. Pandya for the respondent - State. 14. At the outset, it may be stated that respondent no. 2 had filed a criminal complaint from which the present application arose, against the parents of the victim and the present applicant. The parents of the victim had filed Criminal Revision Application No. 478 of 2014 challenging the rejection of their discharge order by the Sessions Court. The said revision application came to be dismissed by this Court on 03.09.2014. The present revision application is by remaining third accused who is an advocate of parents of victim. The parents of the victim had filed Criminal Revision Application No. 478 of 2014 challenging the rejection of their discharge order by the Sessions Court. The said revision application came to be dismissed by this Court on 03.09.2014. The present revision application is by remaining third accused who is an advocate of parents of victim. During the course of hearing, learned advocate for the applicant relied mainly on the decision of Apex Court in the case of Kamalapati Trivedi v. State of West Bengal AIR 1979 SC 777 and submitted that the present complaint is not maintainable because the Court is not competent to take cognizance of offence under Section 211 of Indian Penal Code at the instance of respondent no. 2. It is so, because of bar Section 195 (1) (b) of Code of Criminal Procedure Code. 14.1. Respondent no. 2 opposes this submission. The Court was not inclined to agree with the submissions of learned advocate for the applicant. At that stage, the applicant had moved a draft amendment and the same was allowed by the aforesaid order after hearing the parties. 15. On bare reading of the complaint, it would appear that there are various litigations going on between the parties, particularly between respondent no. 2 and the parents of the victim. Civil and criminal proceedings are pending between the parties. It appears that the victim has become wife of respondent no. 2. At this stage, precisely at the time of dictation of this order, respondent no. 2 draws attention of the Court that the present complaint was filed by respondent no. 2 in the year 2002 and at that time, the marriage with victim has not taken place. Respondent no. 2 has drawn attention of the Court to the Memorandum of Marriage and submitted that the marriage has taken place with the victim only on 25.01.2003. Respondent no. 2 further submits that the parents of the victim were torturing the victim and the victim approached respondent no. 2 and in that circumstances, the marriage of respondent no. 2 with the victim has taken place. How strange? 15.1. The submissions of respondent no. 2 that the present application is the second revision application is not possible to accept. In support of this submission, attention was drawn to reference made by the learned Additional Sessions Judge to this in the order under challenge. 2 with the victim has taken place. How strange? 15.1. The submissions of respondent no. 2 that the present application is the second revision application is not possible to accept. In support of this submission, attention was drawn to reference made by the learned Additional Sessions Judge to this in the order under challenge. The learned trial Court has referred this fact in the initial part of the order. I have no privilege to peruse the order of the learned Chief Judicial Magistrate. Assuming for a moment that all the offences referred to by respondent no. 2 in his complaint are not exclusively triable by the Sessions Court, how the present revision application becomes the second revision? It was submitted by respondent no. 2 that the order of rejection of discharge application by the learned Chief Judicial Magistrate ought to have been challenged before the higher forum. That order was not challenged by the applicant. Even if it is so, in that case also the applicant's discharge application before the Sessions Court can be said to be second discharge application. But, how the present revision application can be said to be second revision? The present revision application against the order passed by the learned Additional Sessions Judge, cannot be said to be second revision application. That being so, Jagir Singh (supra) on which reliance was placed by respondent no. 2 does not help respondent no. 2. 15.2. It may also be stated that the High Court and the Sessions Court has fairly wide revisional powers. Any order which cannot be said to be correct or legal or even if it can be said to be improper, it can be interfered with by the revisional Court. 15.3. Say of the respondent No. 2 is, there is ample and direct material. On going through the detailed complaint and relevant record, it does not appear that joining the present applicant as an accused is called for or necessary. In the detailed complaint, what is the case against the present applicant? It is mentioned that the applicant has abetted the parents of the victim and that by false presentation before the Court, the applicant has tried to help A-1 and A-2 i.e. the parents of the victim. In the detailed complaint, what is the case against the present applicant? It is mentioned that the applicant has abetted the parents of the victim and that by false presentation before the Court, the applicant has tried to help A-1 and A-2 i.e. the parents of the victim. Then reliance was placed on the statements of the witnesses during the inquiry by the learned trial Court and in this regard, attention was drawn to the detailed statement of the victim herself, to this reference is made herein-above. Neither the assertion made in the complaint nor the reliance placed on the statements of the witnesses has any substance so far as the present applicant is concerned. 15.4. Arraigning the advocate as an accused along with his clients - is a serious matter. Unless the relevant material speaks for itself or transgression of limits by an advocate is apparent, initiation of criminal action against the advocate along with the private parties is not correct and proper. Not un-often issues are litigated with oblique or other purposes i.e. purpose other than stated on record. Lest the protection enjoyed by the professional person become the play thing in the hands of litigating public. 15.5. Reference may be made to odd aspect. Even after the transformation of the status of the victim from the victim to victorious person, the parents of the victim are on one side and respondent no. 2 on the other side in the different litigations going on between the parties. They continue to be at war. Their aggressiveness in debating the issue is puzzling. 15.6. Be that as it may. Is it possible to fit the applicant in the picture presented by the parties? Mere size of record cannot make arguable case. The case against the applicant is not possible to believe even prima facie. The facts and circumstances of the case are not strong enough that it may make way for the party or enable the party in crossing the barrier of protection available to a professional person. 16. At the time of hearing, it was pointed out that the present application was filed on 21.08.2014. Initially the Court had issued notice and thereafter on 17.10.2014 rule was issued. However, no interim relief was granted by this Court. In this regard, respondent no. 2 has also drawn attention of the Court to the order passed in Criminal Misc. 16. At the time of hearing, it was pointed out that the present application was filed on 21.08.2014. Initially the Court had issued notice and thereafter on 17.10.2014 rule was issued. However, no interim relief was granted by this Court. In this regard, respondent no. 2 has also drawn attention of the Court to the order passed in Criminal Misc. Application No. 12750 of 2013 dated 16.01.2015. It was submitted that the said application was filed by respondent no. 2 praying to expedite the trial wherein the Court had passed the order to frame the charge. The learned advocate for the applicant has drawn attention of the Court to application being Criminal Misc. Application No. 7 of 2007 with Criminal Misc. Application No. 5240 of 2011 wherein in the main petition, the prayer was to quash the present criminal proceedings against the petitioner therein. The petitioner therein is applicant herein. It was submitted that by order dated 12.01.2012, the present applicant has withdrawn the said application filed against the present criminal proceedings and this Court while disposing of the application had reserved right in favour of the applicant to file discharge application. Attention was also drawn to the order passed by this Court and it was submitted that the trial Court was directed to consider the discharge application in accordance with law without being influenced by the order of withdrawal of Criminal Misc. Application. It is not possible to agree with the submissions of respondent no. 2. The order of this Court cannot be read to mean that even if under the law charge can not be framed against the applicant, the learned trial Court should proceed to frame the charge. In substance, this Court has only directed to expedite the disposal of the criminal case. Maintainability of criminal case against the present applicant was not examined by this Court in order dated 16.01.2015 passed in Criminal Misc. Application No. 12750 of 2013. 17. Neither in the complaint nor in the order under challenge it is possible to say that any case is made out against the present applicant. That being so, continuation of criminal case against the present applicant cannot be said to be just, proper and legal. Therefore, interference in revision application is called for. 17.1. Concluding remarks may not be out of place. The submissions of respondent no. That being so, continuation of criminal case against the present applicant cannot be said to be just, proper and legal. Therefore, interference in revision application is called for. 17.1. Concluding remarks may not be out of place. The submissions of respondent no. 2 and forcefully opposing the present application prompts the Court to observe that the applicant who is an advocate claims to be practicing in this Court (number of years of practice not stated in the application) would act sensibly and responsibly in future, befitting to her professional status. To face a criminal compliant that has such a nature of allegations and to suffer framing of charge by the learned trial Court itself are very serious and walking away with a favourable decision in revision is hardly a matter of satisfaction. We may brush aside the abetment theory because such theory is not borne out from the record, even then the fact that the learned trial Court finds just and proper to reject the discharge application makes a room for comment that the applicant adopted too casual approach in the matter. Certainly an advocate can ill-afford to lose the sight of the fact that in every matter, and at all the time, beside the immediate interest that is urged for by him/her in a given case, something else and more important is at stake. 17.2. In view of above, the present revision application is allowed so far as the present applicant is concerned. Criminal Case No. 68 of 2013 pending before the learned Additional Sessions Judge, Ahmedabad Rural, so far as the present applicant is concerned is hereby quashed and set aside. So far as other accused in the said sessions case are concerned, the case shall proceed expeditiously in accordance with law. 18. Rule is made absolute to the above extent with no order as to costs. 19. Direct Service is permitted. 20. R & P to be forwarded to the trial Court forthwith.