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2023 Supreme(Guj) 818

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Mukesh Gulabbhai Kapadiya – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Misc.Application No. 290 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 292 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 294 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 296 of 2020
Decided on : 13-07-2023

Advocates:
Advocate Appeared:
For the Appellant : MR BHADRISH RAJU FOR MR AKASH A SINGH
For the Respondent: MR DHAWAN JAYSWAL, MR RC KODEKAR, MS TRUSHA K PATEL

Headnote:

Criminal Procedure Code, 1973 – Section 482 – Advocates Act, 1961 – Section-35 – Quashing of Criminal Proceeding – Criminal conspiracy – Punishment of advocates for misconduct – Held, Court are of considered opinion that offending remarks recorded by learned judge against appellant should not have been recorded in the manner it was done – Appellant whose professional conduct was questioned, was not provided any opportunity to explain his conduct or defend himself – Comments were also unnecessary for the decision of the Court – It is accordingly held that offending remarks should be recalled to avoid any future harm to appellant's reputation or his work as a member of the Bar – Court therefore order expunction of extracted remarks in paragraphs 4, 5, 6, and 7 of this judgment – Applications allowed.

ORDER :

1. All these applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (`the Code’ for short) for holding and declaring that the observations made against the applicant herein (i) in the impugned orders dated 3.10.2019 passed below Exh.435 and dated 24.10.2019 passed below Exh.438 in Special CBI Case No.16 of 2005 (ii) in the impugned orders dated 3.10.2019 passed below Exh.282 and dated 24.10.2019 below Exh. 284 in Special CBI Case No.17 of 2005; (iii) in the impugned orders dated 3.10.2019 passed below Exh.356 and dated 24.10.2019 below Exh. 358 in Special CBI Case No.18 of 2005; and (iv) in the impugned orders dated 3.10.2019 passed below Exh.479 and dated 24.10.2019 below Exh.483 in Special CBI Case No.19 of 2005, as absolutely unwarranted, bad, illegal and against the evidence on record and to expunge the same.

2. As the common question of facts and law are involved in all these applications, at the request of learned advocates for the parties, they are heard together and disposed of by this common oral order.

3. Rule returnable forthwith. Respective learned advocates parties waive service of rule for the respective parties.

4. For the sake of convenience, the facts of Criminal Miscellaneous Application No.290 of 2020 are considered, which are as under:

4. That the applicant has been appointed as Special Public Prosecutor on behalf of the CBI vide order dated 17.11.2018 and thereafter the applicant has proceeded with the matter allotted by conducting with best of his effort and skills. That, as per the prosecution case, one Mr.D.V.Yardi, Manager (Vigilance), The New India Assurance Company Limited, having Head Office, Mumbai and on the basis of the same, the case was registered before CBI, Gandhinagar branch; in the said complaint, it was alleged that one Shri S.A.Parma, the then Senior Divisional Manager of NIACL, during the period of 1999-2001 entered into criminal conspiracy with private persons and surveyors for cheating the insurance company by abusing their official position; that because of the said criminal conspiracy, wrongful loss was caused to the insurance company to the tune of Rs.54 lakhs.

5. It is averred further that thereafter a detailed investigation has been carried out by the respondent no.2 and several accused were arrested in all the six cases and Special CBI cases were registered before the concerned Court; that out of the six cases, one case was disposed of against which criminal appeal is preferred, which was also disposed of against which revision application is preferred before this Court, which is pending; that the other remaining cases are yet pending before the Special CBI Court, Ahmedabad; that the said cases are at the stage of examination of witnesses on behalf of the applicant; that it was felt that the entire set of record would be available in the present case, but, after complete scrutiny it was found that all such necessary documents were only filed in the case which was already disposed of; that the applicant applied for the certified copies before the concerned registry for obtaining all such documents produced in the said case and file separately in the pending cases before recording the oral testimony of the investigating officer; therefore, the applicant has preferred an adjournment application dated 3.10.2019 before the learned trial Court, which was granted, however, the learned trial Court has made certain stinging derogatory remarks against the applicant who is Special Public Prosecutor appointed; thereafter, another adjournment application was preferred on 24.10.2019 which was rejected and certain unnecessary derogatory remarks and unwarranted observations against the applicant were made. Hence, these applications are filed for the prayers referred to hereinabove.

6. Heard learned advocates for the parties.

6.1 Learned advocate Mr.Raju for the applicant submitted that the present applications are filed by the applicant who was rendering his service as

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