Girish Manubhai Das vs High Court Of Gujarat
2021 Latest Caselaw 5599 Guj

     C/SCA/6376/2021                                  ORDER DATED: 08/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6376 of 2021

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                         GIRISH MANUBHAI DAS
                                Versus
                        HIGH COURT OF GUJARAT
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Appearance:
MR GIRISH M DAS(2323) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,4,5
MR MITESH AMIN PUBLIC PROSECUTOR for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 08/06/2021

ORAL ORDER

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs :-

"32(A) Your Lordships be pleased to hold and declare the conduct of APP Himanshu K. Patel - respondent no. 5 herein as reckless, the behaviour as rude as well as egoist and the performance such as rejection thirsty, while representing cases as APP before the Court on 04.03.2021.

(B) Pending hearing and final disposal of this petition Your Lordships be pleased to direct that V.C. hearing record dated 04.02.2021 be preserved particularly Video Recording during hearing of Special Civil Application No. 7855 of 2020 argued before Hon'ble Mr. Justice Ashokkumar C. Joshi in the interest of justice.

And Simultaneously

Your Lordships be pleased to direct that V.C. Hearing Recordings dated 04.03.2021 so preserved of hearing of Special Criminal Application No. 7855 of 2020 before Hon'ble Mr. Justice Ashokkumar C. Joshi be preserved to present petitioner on depositing such cost, if any, in the interest of justice.

(C) Pending hearing and final disposal of this petition, Your

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Lordships be pleased to direct respondent no. 3 and 4 to submit before this Hon'ble Court Report of performance of APP Himanshu K. Patel - respondent no. 5 as per Rule 6(8) of Gujarat Prosecution Rules 2020 during last 6 months in the interest of justice.

(D) Your Lordships be pleased to grant any other and further relief/s as may be deemed fit and proper in the fact and circumstances of the case in the interest of justice."

2. The case of the petitioner is that the petitioner himself is a practicing lawyer of this Court since the year 1999 and has been aggrieved by the alleged conduct on the part of respondent no. 2 in arguing the case before this Court. It is alleged in the petition that with utter disregard to the rule of law and by throwing into the wind the Apex Court's verdict, respondent no. 5 who is an Additional Public Prosecutor of this Court has recklessly advanced the arguments before this Court and has lie with impunity and that too without reading the judgment. It has been alleged that he was predetermined to see that the petition filed by the petitioner may be dismissed at any cost and such behaviour on the part of respondent no. 5 as according to the petitioner is reckless, unpardonable, entails stern action for more than one reasons and as such by making the same assertions on oath, the petitioner has invoked extra ordinary jurisdiction of this Court for seeking the reliefs as stated above,

3. Mr. Girish M. Das, learned advocate, who is petitioner himself has contended that respondent no. 5 has not assisted the Court properly and was predetermined and as such, his behaviour should be deprecated and on the contrary, has gone to the extent that the appointing authority has to recall his appointment or discontinue him from the office of the learned Additional Public Prosecutor. To advance his contentions and to support the same, learned advocate Mr. Das has relied upon few decisions of the Apex Court and by making averments in the petition has ultimately requested that respondent no. 5 be discontinued from his position as

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learned Additional Public Prosecutor. Apart from that, has also demanded to preserve the hearing of Special Criminal Application no. 7855 of 2020 which was dealt with by the co-ordinate Bench of this Court and has then went on submitting that some stern action be taken against respondent no.

5. The decisions which are sought to be relied upon are narrated in the body of the petition, which this Court is not inclined to reiterate to avoid unnecessary burden the present order. After referring to few averments and the decisions as mentioned in the petition, learned advocate Mr. Das i.e. the petitioner himself has submitted that the sole interest of respondent no. 5 is to damage the case of the petitioner and such damage was made without reading the relevant papers of the case as well as without reading the decisions of the Apex Court which were sought to be relied upon. Hence, such conduct deserves to be deprecated by granting the reliefs as prayed for in the petition.

4. Mr. Mitesh Amin, learned Public Prosecutor appearing on behalf of the respondent - authority has submitted that the present petition is filed for the purpose of ultimately assessing the conduct of the advocate, who happened to be Additional Public Prosecutor and for that purpose, it is not open for the petitioner to invoke extra ordinary jurisdiction of this Court. Knowing fully well that the petitioner himself is a practicing lawyer right from the year 1999 and is well aware about the facts of his case, has made an attempt to demoralize Additional Public Prosecutor who are making hard efforts to assist the Court. Mr. Amin, learned Public Prosecutor has submitted that if the relief as sought for in the petition and the grievance tried to be ventilated, if encouraged, the same will have a far reaching effect upon the learned Additional Public Prosecutor assisting the Courts. Mr. Amin, learned Public Prosecutor has submitted that ultimately, the order which has been passed by the co-ordinate Bench of this Court has considered the submissions of both the sides and has also

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found specifically that in a given case, the decisions which have been sought to be relied upon by the petitioner are of no avail to the petitioner and, therefore, when the Court is also of the opinion that the case was not deserving to be considered, the same was dismissed and as such, all the grievances which are tried to be raised by the petitioner are ill founded, having no legs to stand and it is an attempt to settle the personal score which, attempt may not be encouraged by this Court in extra ordinary equitable jurisdiction of this Court.

5.1. Mr. Amin, learned Public Prosecutor has submitted that ultimately every lawyer is trying to help out in a situation and projecting the role which is to be executed by him, and therefore, simply because respondent no. 5 has made an attempt to oppose the petition filed by the petitioner, the grievances raised in the petition are not warranting any encouragement even remotely. This attempt according to Mr. Amin, learned Public Prosecutor ought not to have been made by assessing the lawyer by the petitioner who is practicing since the year 1999. It is very unfortunate on the part of the petitioner to make all these grievances right upto the stage of making a request to discontinue the learned Additional Public Prosecutor, and such attempt on the contrary does not deserves to be entertained. Mr. Amin, learned Additional Public Prosecutor has further submitted that this litigation is the reflection of personal enormity of the petitioner with respondent no. 5 , if any, and if there is any grievance about the conduct on the part of respondent no. 5 the petitioner has a different remedy which by his experience must be aware about and certainly according to Mr. Amin, learned Public Prosecutor, the remedy is not a writ remedy under Article 226 of the Constitution of India. According to Mr. Amin, learned Public Prosecutor, the decisions which are tried to be relied upon as mentioned in the memo of petition are no doubt respectable proposition by the Apex Court and various Courts, but

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are not applicable in the peculiar background of fact, especially, when an attempt is clearly visible to undermine respondent no. 5 and to demoralize him so that in future respondent no. 5 may not muster courage to oppose the petition and this attempt being clearly an attempt to browbeat him, deserves to be deprecated in the respectful submission of Mr. Amin, learned Public Prosecutor. Hence, the petition being devoid of merit, deserves to be dismissed.

6. Having heard the learned advocates appearing for the respective parties and having gone through the submissions made by learned Public Prosecutor, it appears to this Court that the averments which are made in the petition reflect a clear intention on the part of the petitioner to somehow see that respondent no. 5 who is learned Additional Public Prosecutor may be put to some difficulty as he has opposed the petition filed by the petitioner. Apart from this, to test the bona fide of the averments which are made and the allegations which are levelled, the Court has perused the reasoned order which has been passed by the co- ordinate Bench of this Court dated 04.03.2021. The said order in which it is reflecting that much emphasis has been made by the petitioner in the said petition on the decision delivered by the Apex Court in the case of Anil Khadkiwala v. State (Government of NC of Delhi) reported in AIR 2019 SC 3583 and the same appears to have been considered at length even by the co-ordinate Bench of this Court and after analyzing the merit of the said case, the Court was of the clear opinion that the said decision is not helpful to the petitioner and when that be so, an independent exercise is also undertaken by the co-ordinate Bench of this Court, irrespective of the assistance or the alleged role played by respondent no. 5 and as such, the allegations which are made in the petition do not inspire any confidence and on the contrary found to be not legitimately supportive.

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6.1. At this stage, the Court would like to incorporate the relevant observations made by the co-ordinate Bench of this Court made in an order dated 04.03.2021 while disposing of Special Criminal Application No. 7855 of 2020, which has generated the present controversy.

"8. This Court is fully agreed with the observations made by the Hon'ble Apex Court that the second application for quashing of FIR is maintainable, but the petitioner has already approached before the Sessions Court for anticipatory bail, and the sessions Court has disallowed the same, therefore, under the Cr.P.C, whenever such dismissal is taken place, the petitioner is required to move before the concerned forum as per the provisions of the Cr.P.C. Therefore, in the peculiar facts and circumstances of the case, this Court is of the opinion that the second application for quashing is not maintainable.

9. Having heard the rival submissions of both the sides, and looking to the peculiar facts and circumstances of the case, this Court has observed that on 27.08.2020 the petitioner is permitted to withdraw the quashing petition with a liberty to move before the appropriate court with appropriate application, wherein, the petitioner has acceded for anticipatory bail which was disallowed by the learned trial Court. Though the right of discharge application was also open but it appears that petitioner has not exercised. This Court has also considered the directions passed by the Hon'ble Apex Court in the case of Anil Khadkiwala Vs. State (Government of NC of Delhi) (Supra) which, in the opinion of this Court is not helpful to the petitioner. Therefore, the Court is not inclined to exercise discretion under Section 482 of Cr.P.C. against the order of trial Court and therefore, the petition is devoid of any merits. Accordingly, the petition deserves to be dismissed. "

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7. From the aforesaid peculiar background of fact and in view of the stand being not inspiring any confidence, this Court is not inclined to exercise any extra ordinary jurisdiction of this Court, otherwise there will be encouragement to attempt to settle the personal score, like this.

7.1. Whether second petition is maintainable or not is also considered by the co-ordinate Bench while disposing of the said petition and, therefore, irrespective of the stand of respondent no. 5 since the Court has independently considered the merit and dispose of the petition, the present grievance which is sought to be raised appears to be completely ill founded.

7.2. Prima facie, when such is the scenario of background of the present controversy, the other issues which are tried to be raised by the petitioner are insignificant and irrelevant, and the Court would not like to express any opinion and the same may be reserved by the petitioner for some better case. Hence, the petition appears to be meritless, deserves to be dismissed at the outset.

8. From the overall reading of the tenor of the petition, it also appears to this Court that the shoe pinching to the petitioner is somewhere else and making an attempt to demoralize respondent no. 5 who, prima facie appears to have not conducted any misdeed and this is in view of the detailed order which has been passed by the co-ordinate Bench is self- explanatory and hence other issues need not be gone into and the petition is found to be frivolous, mischievous, and, therefore, this Court is not inclined to encourage the attempt which has been made by the petitioner. Thus, in view of the aforesaid circumstances, none of the reliefs as prayed for deserve any consideration since at the outset, the petition found to be

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meritless and not entertainable, accordingly, the petition deserves to be dismissed.

9. In view of the aforesaid peculiar background of fact and in view of the facts which are stated herein-above, the petition being meritless stands dismissed. Normally, in such kind of attempts frivolously made before the Court, the Court would have disposed of the petition with heavy costs, but in view of the fact that the petitioner himself is an advocate practicing for quite some time in this Court and it appears that there is some grievance between the advocates inter-se, and, to maintain harmony, this Court has refrained itself from imposing any cost.

(ASHUTOSH J. SHASTRI, J) /phalguni/