1994 Supreme(Guj) 374

Gujarat High Court
Judgename :K.J.VAIDYA
MR.R.S.SHAH, COMPETENT AUTHORITY GUJARAT SLUMS CLEARANCE BOARD - Appellant
Versus
VINOD H.BRHAMBHATT - Respondent
CRIMINAL APPEAL 5319 of .
Decided On : 12/28/1994

Headnote:Criminal Procedure Code, 1973 - Section 482 - Petition under - Withdrawal of earlier petition - Held, no bar to file subsequent petition if there is change in facts and circumstances - In the instant case subsequent petition under Sec. 482 allowed.

       When any such second application under Section 482 of the Code is made, and if subsequently there are change of circumstances and yet the petitioners is prevented from invoking the inherent powers because the earlier application was disposed of as withdrawn, then that would be putting unwarranted and unnecessary fetters on the powers of the High Court where though it is duty bound to interfere to prevent the abuse of process of law, and still it conveniently resigns itself to believe and find itself helpless unable to exercise inherent power in view of Section 362 of the Code to do anything !! This simply cannot be permitted to happen !

       [Para 5.2]

       Criminal Procedure Code, 1973 - Section 482 - Unconditional withdrawal of petition - Cannot amount as dismissal.

       `Unconditional Withdrawal cannot amount to dismissal.

       [Para 5]

       Criminal Procedure Code, 1973 - Section 482 - Inherent powers under - Nature, scope and limitations - Explained.

       There is indeed nothing in Section 482 of the Code which can put any fetters or limit on the inherent powers of the High Court which are essentially made for preventing the abuse of the process of law and on the other hand to secure the ends of justice. Once the petitioner places the material before the High Court at any interim stage pending trial, indicating the change of circumstances and the plight in which he is caught as a result of the abuse of the process of law, the same more than a right of the accused, it is the bounden duty of the Court to immediately intervene and see that on the anvil of the Court forum in the alleged name of law and justice, the accused is not indiscreetly hammered out and made to suffer by some scheming, unscrupulous and malicious complainant. The powers under Section 482 of the Code are indeed extra-ordinary powers and accordingly, the same should certainly be exercised at any stage even if the earlier application under Section 482 of the Code for quashing was made and stood disposed off either as withdrawn or dismissed even. In fact, more than the right of the accused, it is indeed the foremost duty of the High Court to entertain any such subsequent application in the light of changed circumstances as not to do so, would be unnecessarily imposing self-imposed fetters on the extra-ordinary inherent powers of preventing the abuse of the process of law to secure the ends of justice specially invested by the Legislature in the High Courts itself.

       [Paras 5.1 & 5.3]

       Criminal Procedure Code, 1973 - Section 482 - Penal Code - Secs. 448, 341 and 114 - Complaint by advocate `B against the petitioner authority and other persons under secs. 448, 341 and 114 of Penal Code - Earlier petition to quash criminal proceedings withdrawn by petitioner - Subsequent petition filed after five years - Same opposed by advocate - No progress in criminal proceedings shown - Proved that complaint was an unauthorised occupant of a premises - Original tenant was evicted - Competent Authority was trying to get the premises vacated - Complainant made wild and malicious allegations against petitioner who was discharging his lawful duty - Held, it is a fit case to exercise power under sec. 482 and quash the proceedings.

       In the present case, it prima facie clearly appears that the complainant who is an advocate has on account of his failing in eviction proceedings where he appeared for Mr. Rasiklal Rana, identifying himself with the case and client surprisingly and shockingly too illegally claiming himself to be in the continued possession of the premises in question on the one hand, and on the other hand to frustrate the object and the outcome of the eviction proceedings confirmed at the High Court level has falsely and maliciously by making wild allegations against the petitioners has filed the complaint. In fact, having regard to the peculiar facts and circumstances of this case, not to quash the proceedings on the alleged limited ground that the complainant discloses the offence without carefully scanning the inherent weakness, would be nothing less than shutting ones eyes to the real fact viz., that the complainant was not and could not have been in a lawful possession of the premises in question.

       [Paras 10 & 9]

       Legal Profession - Advocate - Conduct - Complainant `B an advocate who was in unauthorised possession of an evicted premises made false & malicious and complaint against petitioner - Authority who was exercising his lawful authority - Giving false information in the court and resisting quashing of criminal proceedings on baseless grounds - Held, conduct highly deprecated - Bar Council advised to take suitable action.

       This complaint shall have to be quashed and set-aside and is quashed accordingly. It is indeed unfortunate that the complainant who is a young advocate, prima facie appears to have conducted himself in such an unbecoming manner which does not befit a members of the noble profession of lawyers to which he belongs. It is entirely for the Gujarat Bar Council to consider its duty and accountability in such serious matters and as to what action accordingly should be taken against Mr. Vinod Brahmbhatt, learned advocate.

       [Para 11]

       Case law - Precedent - Ratio - Applicability - Held, cannot be applied mechanically - Facts and circumstances of the case in hand has to be considered vis-a-vis-precedent sought to be applied.

       In fact when any Court is called upon to apply the ratio of any particular decision of the Supreme Court/High Courts, (as the case may be) to any case at hand, the same has to be appreciated in the context and background of the facts and circumstances of that particular case. The decision of the Supreme Court or for that purpose even of High Court like a readymade garment cannot be thrown to any person to put on by him irrespetive of his/her gender, age, height, and size of the body unless and until the person whom it is thrown to put on is either of the same age, height and size. In fact, every criminal cases have variety of facts circumstances, colours and shades distinctly differing from case to case, and therefore, unless and until the facts of two cases are so to say the identical one, or so to say near identical one, it would indeed be too mechanical and an indiscreet approach on the part of the concerned court to apply the same !

       [Para 8]