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2017 Supreme(Guj) 525
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Jayeshbhai Niranjanbhai Dholakia and Ors. - Appellants
Vs.
State of Gujarat and Ors. - Respondents
Special Criminal Application (Quashing) No. 1043 of 2017
Decided On : 08-03-2017
For the Appellant : Saurin A. Shah
For the Respondents: Nisha Thakore
Headnote:
Criminal Procedure Code, 1973 – 156(3), Section 340, Section 343 – Criminal Case – Investigation of Complaint – Is the procedure as prescribed under Section 340 of Cr.P.C., 1973 before filing complaint by the concerned Court for offences mentioned in Section 193 of Cr.P.C., 1973 duly complied with?Once the complaint is filed by concerned Court before concerned Magistrate as per Section 340 of Cr.P.C., 1973, is it permissible for the concerned Magistrate to pass an order under Section 156(3) of Cr.P.C., 1973 or not? More particularly, keeping in mind the procedure laid down in Section 343 of Cr.P.C., 1973 – Held, since the order passed by the Assistant Charity Commissioner dated 20th July 2013 was challenged before the District Court and such challenge having failed and the order having attained finality, the applicants cannot find fault with the order passed by the Assistant Charity Commissioner. I may only say that if the initial action is not in consonance with law, the subsequent proceeding would not sanctify the same – There is no satisfaction recorded in so many words that it is expedient in the interests of justice that the applicants herein should be prosecuted for the offence committed by them. It is true that there is a finding recorded as regards the offence of forgery alleged to have been committed by the applicants herein, but, that by itself, is not sufficient – What is mandatory is that the Judge of the authority concerned must give a finding that the witnesses or any other person has intentionally given false evidence in the proceeding before him or has intentionally fabricated false evidence for the purposes of being used in that proceedings and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that the witness or the person concerned should be prosecuted for the offence in question - Application Allowed
J.B. Pardiwala, J.
1. By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs:
"6(A) That the Hon'ble Court may be pleased to issue an appropriate writ, order or direction directing to quash and set aside the direction of directing Ghogha Road Police Station to investigate the complaint lodged by opponent No. 2 herein U/s. 156(3) of Cr.P.C. 1973 which came to be registered as Cr. Reg. No. M-1 of 2016 at Ghogha Road Police Station, pursuant to the order dated 01-08-2016 passed by Ld. 8th Addl. CJM, Bhavnagar in complaint lodged by opponent No. 2 herein which came to be registered as M. Case No. 1 of 2016 for the offences punishable U/s. 193, 467 r/w 114 & 34 of IPC & also quash and set aside the order of Ld. 6th Additional Session Judge Bhavnagar passed in Criminal Appeal No. 102 of 2016 confirming the order dated 01-08-2016 passed by the Ld. Addl. CJM, Bhavnagar & further be pleased to direct the withdrawal of the complaint filed by opponent No. 2 herein which came to be registered as M. Case No. 1 of 2016 before Ld. 8th Addl. CJM, Bhavnagar.
(B) That during the pendency of the present petition, the Hon'ble Court may be pleased to stay the directing of directing Ghogha Road Police Station to investigate the complaint lodged by opponent No. 2 herein U/s. 156(3) of Cr.P.C. 1973 which came to be registered as Cr. Reg. No. M-1 of 2016 at Ghogha Road Police Station which came to be passed pursuant to the order dated 01-08-2016 passed by Ld. 8th Addl. CJM, Bhavnagar in complaint lodged by opponent No. 2 herein which came to be registered as M. Case No. 1 of 2016 for the offences punishable U/s. 193, 467 r/w 114 & 34 of IPC.
(C) That during the pendency of the present petition, the Hon'ble Court may be pleased to restrain the Investigating Officer of Ghogha Police Station from submitting the charge sheet in connection with Cr. Reg. No. M-1 of 2016 at Ghogha Road Police Station which came to be passed pursuant to the order dated 01-08-2016 passed by Ld. 8th Addl. CJM, Bhavnagar in complaint lodged by opponent No. 2 herein which came to be registered as M. Case No. 1 of 2016.
(D) That any just and proper order may be passed."
2. The following dates and events would give a fair idea as regards the factual background of this case:
2.1 On 18th January 1977, the Manilal Ranchoddas Jinabhai Charitable Trust got registered at Bhavnagar bearing the Registration No. E/398 as per the provisions of the Bombay Public Trust Act, 1950.
2.2 On 18th January 1977 i.e. at the time of registration, the following were Trustees:
"(1) Navinchandra Purshottam Dholakia
(2) Devendra Purshottam Dholakia
(3) Niranjan Ramniklal Dholakia
(4) Chandrakant Jayantilal Parikh."
2.3 On 12th November 1990, vide the change entry No. 677/89, the name of (1) Chandrakant Jayantilal Parikh came to be deleted and the name of (1) Paragbhai Navinchandra Dholakia and (2) Jayesh Niranjanbhai Dholakia came to be added in the Trust as Trustees.
2.4 On 29th November 2000, vide the change entry No. 107/2000, the name of (1) Niranjan Ramnikbhai Dholakia came to be deleted and the name of (1) Deepak Ramniklal Dholakia came to be added.
2.5 On 1st August 2011, an agenda was circulated among the trustees for the deletion of the name of few Trustee and addition of new Trustee.
2.6 On 11th August 2011, the resolution came to be passed by the Trustees of the Trust, whereby the name of (1) Paragbhai Navinchadnrabhai Dholakia, (2) Devendrabhai Purshottambhai Dholakia, (3) Deepakbhai Ramnikbhai Dholakia came to be deleted, and the name of (1) Falguniben Jayeshbhai Dholakia, (2) Nishant Jayeshbhai Dholakia came to be added in the said Trust.
2.7 On 28th August 2011, Navinchandra Purshottamdas Dholakia passed away.
2.8 On 19th September 2011, the change application in the name of Navinchandra Purshottamdas Dholakia along with the Vakal
