IMPORTANT POINT
Fraudulent act even in judicial proceedings cannot be allowed to stand.

ORDER

This is a writ petition filed inter alia seeking a writ of mandamus calling upon the respondents to immediately seize the records pertaining to Criminal Case No. 118 of 2004 titled Suresh Kumar Jethalal Sanghvi v. Rajendra Jain & Ors. pending in the Court of Metropolitan Magistrate, Court No. 10, Meghani Nagar, Ahmedabad, on the ground that the proceedings in the said case was an example of, the extent to which the criminal justice system in Subordinate Courts in Gujarat is corrupted.

2. This writ petition raises important issues of legal and public importance; one amongst them being the validity of the complaint filed in the Court of Metropolitan Magistrate, Court No.10, Ahmedabad in a complaint filed by the said Suresh Kumar Jethalal Sanghvi under Sections 406, 420, 504, 506(1) and 114 IPC against 4 persons named therein and consequential bailable warrants issued against the said persons by the said court.

3. Many of the issues involved in the writ petition require further consideration, hence it is agreed by all the parties to this petition that those issues can be separately dealt with. The parties are also at ad idem on the issue of the validity of the complaint being decided at this stage itself. Hence in this order of ours we will consider and decide the validity of the complaint referred to hereinabove.

4. Though all the parties to this petition are in one voice have agreed to quash the said proceedings. We do not think we should do so on the basis of the concession shown by the parties. In public interest we think it appropriate to consider the merit of the case and decide the legality of the case on the basis of the law applicable and material available in the records.

5. It is stated in the writ petition that the writ petitioner with a view to expose the mal-practices in the judicial administration in the subordinate courts in Ahmedabad had approached one of the lawyers named in the writ petition to procure a non-bailable warrants against the persons named in the complaint for proving his case of corruption for which the petitioner was ready and willing to pay such money as was demanded by the lawyers concerned.

6. Learned counsel appearing for the writ petitioner has in specific terms contended that the contents of the complaint based on which cognizance was taken and bailable warrants were issued are not true and the same is drafted by the lawyers concerned knowing full well that they are untrue and only with a view to obtain a warrant for a monetary consideration.

7. From the affidavit filed on behalf of the said lawyers and from the arguments addressed today on their behalf, it is clear that at least as on today they are also in agreement with the writ petitioner that the contents of the complaint are not genuine though they categorically state that the said statement was recorded at the instance of one Suresh Kumar Jethalal Sanghvi who had approached them to file a complaint and on the basis of the facts narrated by him the said complaint was drafted and filed.

8. Be that as it may from the above pleadings and the arguments addressed on behalf of the respective parties before us today, it is clear that the complaint in question is a product of fraud and a total abuse of the process of court. There is also serious doubt whether the procedure required under the Code of Criminal Procedure was really followed by the Magistrate at all while taking cognizance of the offence alleged. In this background of inherent falsehood that could be ex facie noticed from the contents of the complaint and coupled with the fact admitted by the parties to this petition, it is evident that the said complaint is a fraudulent one, hence, the same is liable to be quashed based on the legal principle that an act in fraud is ab initio void. This principle in our opinion applies to judicial acts also.

9. This Court in Express Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors. (AIR 1986 SC 872) at para 118 has held thus:

"Fraud on power void