Gujarat High Court
Naman Gyanchand Pipara Through ... vs State Of Gujarat on 27 September, 2023
Bench: Sandeep N. Bhatt
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11635 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 11419 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 11422 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAMAN GYANCHAND PIPARA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MANISH R BHATT, SENIOR ADVOCATE with
MR MUNJAAL M BHATT, ADVOCATE for
M R BHATT & CO. for the Applicant
MR CHINTAN DAVE, APP for the Respondents - State Authorities
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/09/2023
CAV JUDGMENT
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1.1 By way of these applications under Section 482 of
the Code of Criminal Procedure, 1973 as well as under
Section 226 of the Constitution of India, the applicant seeks
quashment of the identical but separate FIRs impugned being
C.R. No.02 of 2021, No.03 of 2021 and No.01 of 2021,
respectively, registered with the ACB Police Station, Bharuch
for the offences punishable under Sections 409, 465, 466, 467,
471, 477A and 120B of the Indian Penal Code and Sections
12, 13(1)(A) and 13(2) of the Prevention of Corruption Act.
1.2 Since that the applicant is the same in all the
applications and the allegations are also same in all three
complaints impugned, therefore, all these applications are
heard and decided together with consent of the learned
advocates for the respective parties.
2. The brief facts of the prosecution case are
epitomized as under:
The work of Khet Talavadi at various different
survey numbers carried out by the Gujarat Land Development
Corporation, Bharuch at village : Kharach, Taluka : Hansot,
District : Bharuch. has been inspected by the authority,
wherein it is found that the applications were made on
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behalf of the farmer without their knowledge by the officials
of the said Corporation and thereby misused their powers,
shown said Khet Talavadi on papers, shown wrong
measurement in the record, made payment in the account of
the particular Contractors, created false record in connivance
with the unqualified employee/s appointed by the Pipara &
Company, a Chartered Accountant Firm, who, thereby
committed an offence of the Chartered Accountant Act. Hence,
the impugned complaints.
3. Heard learned senior advocate Mr. Manish R.
Bhatt with learned advocate Mr. Munjaal M. Bhatt for M.R.
Bhatt & Company for the applicant and learned Additional
Public Prosecutor Mr.Chintan Dave for the respondents -
State Authorities, at length.
4.1 Learned senior advocate Mr.Bhatt for the applicant
has submitted that the present applicant is a well-known
leading Chartered Accountant and his name is falsely
implicated in the offence in question. He has submitted that
he is a member of the formulating, drafting and issuance of
forensic audit standards by the Institute of Chartered
Accountants of India. He has submitted that the Firm of the
applicant is situated in New Delhi and therefore, he has to
appoint official staff in Gujarat. He has submitted that the
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role of the office of the Chartered Accountant was to carry
out 10% physical verification of the soil work carried out by
each charge on the filed on a random basis and hence, due
to his alleged negligence, the officers and contractors were
able to do fraud. He has submitted that there is no whisper
about the alleged fraud committed by the applicant in the
impugned FIRs. He has submitted that out of the fraudulent
transactions, there is no whisper about siphoning and/or
pocketing money by the applicant.
4.2 He has submitted that the allegations against the
applicant in the impugned FIRs is to appoint one Miteshbhai
Dilipbhai Trivedi as an employee, who is not a qualified
person and therefore, the applicant has committed an offence
under the Chartered Accountant Act. He has submitted that
except this, there is no allegation against the applicant at all
in the entire FIRs.
4.3 He has submitted that this is a scam committed
by the officers / staff of the Gujarat State Land Development
Corporation in connivance with the so-called contractors and
thereby siphoning money of the State. He has submitted that
if we look from the beginning, it seems that the officials of
the Corporation has made an application in the name of the
farmers on their own, created records of 'Khet Talavadi' on
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papers and raised fabricated bills of work made by the so-
called contractors and paid money to the so-called contractors,
who are very closed to them. He has submitted that in this
entire chain, there is no role of the Chartered Accountant in
the process except to audit the account papers. He has
submitted that all the officials/staff are very much aware of
the entire process and therefore, they have cleverly prepared
the entire chain of papers as if the farmers have made an
application for getting the benefits of the scheme floated by
the State Government. They have been prepared and audited
by the firm of the applicant. He has submitted that except
this, there cannot be any other role of the CA firm in the
entire transaction. He has submitted that as per the role of
the CA firm, it has to verify all the account-related papers
only. He has submitted that out of the entire transaction, no
single rupee is credited or given to the CA firm by the
Corporation as there is a very limited role of the CA firm.
He has submitted that since the applicant is a leading
Chartered Accountant country, to tarnish his image, his name
is implicated in the offence in question.
4.4 He has further submitted that the entire
allegations are based on the action of the officials of the
Corporation itself. He has submitted the looking to the FIRs,
there is a motive and preplanned of the officials/staff of the
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Corporation behind it. He has submitted that they have
created false and fabricated documents on the papers,
knowing fully well that the work is on the papers only and
submitted to the CA firm for pre-audit purpose, which the
staff of the firm has verified. He has submitted that the CA
firm is not the expert to inspect the site or to verify the
actual work carried out by the other persons. He has
submitted that it is not the role of the CA firm also. It is
their role, duty and responsibility to verify the actual work.
The CA firm has to verify the accounts on papers only,
which the staff of the applicant has done. He has submitted
that if such complaints are filed, then no professional can
save from any work done by the officials / staff of the
offices.
4.5 He has also submitted that there is no whisper
about the alleged offence committed by the applicant in the
FIRs impugned. The offence registered against the applicant
in the impugned FIRs is under the Prevention of Corruption
Act as well as under the Indian Penal Code. He has
submitted that no offence is attributed to the applicant
looking to the entire allegations levelled in the impugned
FIRs. The allegations against the applicant is to appoint
unqualified person only. He has submitted that the applicant
has neither committed any offence under the Prevention of
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Corruption Act nor under the Indian Penal Code. He has
submitted that appointing unqualified staff would not amount
to an offence under the Indian Penal Code or under the
Prevention of Corruption Act and therefore, the applicant has
not committed any offence as alleged in the impugned FIRs.
He has submitted that all these applications may be allowed
by exercising the powers under Section 482 of the Code of
Criminal Procedure, 1973 in favour of the applicant.
4.6 In support of his submissions, he has relied upon
the following decisions :
(i) (2001) 6 SCC 181 - T.T. Antony versus
State of Kerala (Paras : 25 to 27)
(ii) (2013) 6 SCC 348 - Amitbhai
Anilchandra Shah versus CBI (Paras :
58.3 to 58.5 and 58.9)
(iii) (2020) 14 SCC 12 - Arnab Ranjan
Goswami versus Union of India (Paras :
31, 33, 37)
(iv) Criminal Misc. Application No.16909 of
2019, dated 13.09.2019 - Pravinbhai
Balchandrabhai Premal versus State of
Gujarat
(v) Criminal Misc. Application No.4421 of
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2021, dated 30.04.2021 - Bhaumik
Dilipkumar Gandhi versus State of
Gujarat
(vi) Relevant provisions of the Charted
Accountants Act, 1949.
5.1 Learned APP Mr.Dave for the State has submitted
that there is a prima facie offence made out against the
applicant and therefore, this application may be rejected. He
has submitted that the applicant being a partner of the CA
firm has not properly carried out its work and therefore,
these applications may be rejected. He has also submitted
that the firm of the applicant has to carry out the inspect of
soil work which they have not done. He has submitted that
this was the condition of the contract between the CA firm
and the Corporation. He has submitted that there was a
breach of contract and thereby the CA firm has committed
an offence. He has submitted that there was connivance with
the applicant, his staff members and the officers / staff as
well as the contractors in siphoning Government money. He
has submitted that there was a pre-planned fraud committed
by the all in connivance with each other. He has submitted
that ultimately, the Government is the sufferer. He has
submitted that they have pocketed huge money by committed
such fraud. He has submitted that they have created false
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and fabricated documents, pre-audited it and paid money to
the so-called contractors. He has submitted that the applicant
has appointed unqualified person as his staff, got pre-audited
by him, which seems the connivance in the offence.
5.2 He has submitted that there was a condition in
the contract between the CA firm and the Corporation that
CA firm has to carry out 10% soil work inspection at the
place. He has submitted that such inspection was not carried
out by the CA firm, but made endorsement about it and on
that basis, the payment was made to the so-called
contractors. He has submitted that there is no such 'Khet
Talavadi' at the place of offence at all. All the work is on
the papers only. He has submitted that there is motive and
pre-planned by all the accused in connivance with each other.
He has submitted that it is a collective offence and hence,
we cannot withdraw anyone from the chain. He has
submitted that the firm of the applicant has raised bills for
four quarters, for which, he has in fact carried out the work
of three quarters only. He has submitted that there are other
about 62 complaints registered in such scam. He has
submitted that at this stage, these applications may not be
entertained and are required to be rejected.
6.1 I have considered the rival submissions made by
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learned advocates for the respective parties. I have perused
the documents available on record. From record, the following
undisputed facts are emerged :
The State Government has floated the ' Khet
Talavadi' Scheme in the State.
The Gujarat State Land Development Corporation
has followed the said Scheme.
The officers / staff of the Corporation at Bharuch
have made false and fabricated applications in the
name of the various farmers.
The said applications were signed in the name of
the farmers by such officials.
The said farmers were not aware about it.
After making such false applications, the officers
of the Corporation have prepared various papers
as if the farmers have made the applications.
The measurement of 'Khet Talavadi' also made on
the papers without visiting there, because the
farmers were not aware about it.
The 'Maap Pothi' (Measurement Book) is also
prepared by the officers of the Corporation falsely.
The completion of work is also shown by the
officers of the Corporation on papers.
The officers of the Corporation have raised bills
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for the said work.
The payment is finally made to the so-called
contractors by the Corporation for the work which
was not done at all.
The applicant is a Chartered Accountant by
profession runs a Chartered Accountant Firm at
New Delhi.
There was a work agreement between the
applicant's firm and the Corporation for audit
work.
The CA firm has appointed various staff members
in Gujarat.
The pre-audit work was carried out by the firm of
the applicant.
On the basis of the pre-audit work, the payment
was made by the Corporation to the so-called
contractors.
These are the undisputed facts emerged from the
record, which would keep in mind while deciding these
applications.
6.2 Considering the submissions made at the bar by
the learned advocates for the respective parties, this Court
poses the following questions in mind :
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What is the role of Chartered Accountant ?
Can the Chartered Accountant firm appoint for the
inspection work of field ?
Is the Chartered Accountant firm an expert to
inspect the soil work at filed ?
Would any motive be there of the Chartered
Accountant firm in such scam ?
6.3 Looking to the allegations made in the impugned
FIRs against the applicant, at this stage, it would be fruitful
to refer to briefly the provisions of the Indian Penal Code as
well as the Prevention of Corruption Act, which are as follow
in brief :
Indian Penal Code
Section In Brief
409 Criminal breach of trust by public
servant, or by banker, merchant or
agent.
463 Forgery.
465 Punishment for Forgery
466 Forgery of record of Court or of public
register, etc.
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467 Forgery of valuable security, will, etc.
471 Using as genuine a forged [document or
electronic record].
477A Falsification of accounts.
120 Criminal Conspiracy.
120B Punishment of criminal conspiracy.
Prevention of Corruption Act
12 Punishment for abetment of offences.
13(1)(a) Criminal misconduct by a public servant.
& 13(2)
6.4 Further, there is an allegation in the impugned
FIRs upon the applicant qua the provisions of Sections 26
and 28 of the Chartered Accountant Act, which is as under :
"26. Unqualified persons not to sign
documents -
(1) No person other than a member of
the Institute shall sign any document on
behalf of a 4 [chartered accountant in
practice or a firm of such chartered
accountants] in his or its professional
capacity.
(2) Any person who contravenes the
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provisions of sub-section (1) shall, without
prejudice to any other proceedings, which
may be taken against him, be punishable on
first conviction with a fine not less than five
thousand rupees but which may extend to
one lakh rupees, and in the event of a
second or subsequent conviction with
imprisonment for a term which may extend
to one year or with fine not less ten
thousand rupees but which may extend to
two lakh rupees or with both.
28. Sanction to prosecute -
No person shall be prosecuted under this
Act except on a complaint made by or under
the order of the Council
or of the Central Government."
6.5 On bare perusal of the impugned FIRs, the
following points are emerged for consideration of this Court :
The officers / staff of the Gujarat State Land
Development Corporation have made false and
fabricated applications for getting the monetary
benefits of the Scheme known as ' Khet Talavadi'
floated by the State Government.
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The farmers on whose names the said applications
were made, were not aware about the same.
The fabricated measurement books were also
prepared by the officers / staff of the Corporation.
The work was shown on the papers only.
The bills were raised by the officials of the
Corporation.
The same were pre-audited by the firm of the
applicant.
The amount was paid to the various contractors by
the Corporation to their accounts directly.
No money is paid to the applicant for the said
labour work of 'Khet Talavadi' by the Corporation.
It is not the job of the Chartered Accountant firm
also.
The applicant's firm has to verify the papers and
bills raised by the Corporation.
The said bills were checked by the applicant's firm
on the basis of the material available on record at
that time.
The applicant is not known all the officers / staff of
the Corporation as well as the so-called contractors.
There is no connection between the applicant and
the officers/staff of the Corporation as well as the
contractors at all.
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There is no money transaction between the
contractor and the applicant at all and the officers /
staff of the Corporation at all.
Except the fees of the chartered accountant, no
money is credited to the account of the applicant or
its firm.
The applicant is a leading Chartered Accountant of
the country.
The applicant firm is situated at New Delhi.
The applicant's firm has appointed various persons
in Gujarat to carry out its work as Chartered
Accountant as well as permitting article-ship for
Chartered Accountant.
The role of the applicant's firm was very limited
and was not actually connected with the field work
and only to the extent the audit of vouchers and
records.
How can they be experts in soil inspection ?
How can they visit even the field ?
If there is a lack of appointing unqualified persons
in the firm to carry out audit work, there are
provisions in the Chartered Accountant Act.
Prima facie, no offence is made out against the
applicant.
If the State Authorities book such professionals in
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every such offences, there would be an
administrative chaos and no leading professional
would like to work with the State Government or
its offices.
It would be always open for the concerned
Authorities to take appropriate steps against the
firm of the applicant under the Chartered
Accountant Act, if they feel any negligence on the
part of the firm of the applicant.
No prior sanction as required under Section 28 of
the Chartered Accountant Act.
6.6.1 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of T.T.
Antony (supra), more particularly paragraphs : 25 to 27
thereof, which are as under :
" 25. Where the police transgresses its
statutory power of investigation the High
Court under Section 482 Cr.P.C. or Article
226 / 227 of the Constitution and this Court
in appropriate case can interdict the
investigation to prevent abuse of the process
of the Court or otherwise to secure the ends
of justice.
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26. In State of Haryana v. Bhajan Lal,
1992 Suppl (1) SCC 335 : (1992 AIR SCW
237 : AIR 1992 SC 604 : 1992 Cri LJ 527),
after exhaustive consideration of the decisions
of this Court in State of West Bengal v.
Swapan Kumar Guha, 1982(1) SCC 561 :
(AIR 982 SC 949 : 1982 Cri LJ 819); S. N.
Sharma v. Bipen Kumar Tiwari, 1970(1) SCC
653 : (AIR 1970 SC 786 : 1970 Cri LJ 764);
R. P. Kapur v. State of Punjab, 1960(3) SCR
388 : (AIR 1960 SC 866 : 1960 Cri LJ
1239); Nandini Satpathy v. P.L. Dani, 1978(2)
SCC 424 : (AIR 1978 SC 1025 : 1978 Cri LJ
968) and Prabhu Dayal Deorah v. District.
Magistrate, Kamrup, 1974(1) SCC 103 : (AIR
1974 SC 183 : 1974 Cri LJ 286), approving
the judgment of the Privy Council in Khwaja
Nazir Ahmad's case (AIR 1945 P C 18 :
1945 (46) Cri LJ 473) (supra), it was
concluded in para 102 (of Supp SCC) : (Para
108 of AIR, Cri LJ) as follows:
"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series of
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decisions relating to the exercise of the
extraordinary power under Article 226
or the inherent powers under Section
482 of the Code which we have
extracted and reproduced above, we
give the following categories of cases
by way of illustration wherein such
power could be exercised either to
prevent abuse of the process of any
Court or otherwise to secure the ends
of justice, though it may not be
possible to lay down any precise,
clearly defined and sufficiently
channylised and inflexible guidelines or
rigid formulae and to give an
exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
(1) Where the allegations made in
the first information report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case
against the accused.
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(2) Where the allegations in the
first information report and other
materials, if any, accompanying the
FIR do not disclose a cognizable
offence, justifying an investigation by
police officers under Section 156(1) of
the Code except under an order of a
Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or
complaint and the evidence collected in
support of the same do not disclose
the commission of any offence and
make out a case against the accused.
(4) Where the allegations in the
FIR do not constitute a cognizable
offence but constitute only a non-
cognizable offence, no investigation is
permitted by a police officer without
an order of a Magistrate as
contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in
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the FIR or complaint are so absurd
and inherently improbable on the basis
of which no prudent person can ever
reach a just conclusion that there is
sufficient ground for proceedings
against the accused.
(6) Where there is an express
legal bar engrafted in any of the
provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the
institution and continuance of the
proceedings and for where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wrecking vengeance on the
accused and with a view to spite him
due to private and personal grudge."
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The above list, as noted, is
illustrative and not exhaustive.
27. A just balance between the
fundamental rights of the citizens under
Articles 19 and 21 of the Constitution and
the expansive power of the police to
investigate a cognizable offence has to be
struck by the Court. There cannot be any
controversy that sub-section (8) of Section 173
Cr.P.C. empowers the police to make further
investigation, obtain further evidence (both
oral and documentary) and forward a further
report or reports to the Magistrate. In
Narangs' case (supra) it was, however,
observed that it would be appropriate to
conduct further investigation with the
permission of the Court. However, the
seeping power of investigation does not
warrant subjecting a citizen each time to
fresh investigation by the police in respect of
the same incident, giving rise to one or more
cognizable offences, consequent upon filing of
successive FIRs whether before or after filing
the final report under Section 173(2) Cr. P.
C. it would clearly be beyond the purview of
Sections 154 and 156 Cr. P. C. nay, a case
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of abuse of the statutory power of
investigation in a given case. In our view a
case of a fresh investigation based on the
second or successive FIRs, not being a
counter case, filed in connection with the
same or connected cognizable offence alleged
to have been committed in the course of the
same transaction and in respect of which
pursuant to the first FIR either investigation
is underway or final report under Section
173(2) has been forwarded to the Magistrate,
may be a fit case for exercise of power
under Section 482 Cr. P. C. or under Article
226/227 of the Constitution."
6.6.2 Further, it would also be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Arnab
Ranjan Goswami (supra), more particularly paragraphs : 31,
33 and 37 thereof, which are as under :
"31. The Court held that "there can be no
second FIR" where the information concerns
the same cognisable offence alleged in the
first FIR or the same occurrence or incident
which gives rise to one or more cognisable
offences. This is due to the fact that the
investigation covers within its ambit not just
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the alleged cognisable offence, but also any
other connected offences that may be found
to have been committed. This Court held
that once an FIR postulated by the
provisions of Section 154 has been recorded,
any information received after the
commencement of investigation cannot form
the basis of a second FIR as doing so would
fail to comport with the scheme of the CrPC.
The court observed:'
"18...All other information made orally
or in writing after the commencement
of the investigation into the cognizable
offence disclosed from the facts
mentioned in the first information
report and entered in the station
house diary by the police officer or
such other cognizable offences as may
come to his notice during the
investigation, will be statements falling
under Section 162 CrPC. No such
information/statement can properly be
treated as an FIR and entered in the
station house diary again, as it would
in effect be a second FIR and the
same cannot be in conformity with the
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scheme of CrPC."
33. The Court held that barring situations
in which a counter-case is filed, a fresh
investigation or a second FIR on the basis of
the same or connected cognisable offence
would constitute an "abuse of the statutory
power of investigation" and may be a fit case
for the exercise of power either under Section
482 of the CrPC or Articles 226/227 of the
Constitution.
37. In the present case, all the FIRs or
complaints which have been lodged in diverse
jurisdictions arise out of one and the same
incident - the broadcast by the petitioner on
21 April 2020 on R Bharat. The broadcast is
the foundation of the allegation that offences
have been committed under the provisions of
Sections 153, 153A, 153B, 295A, 298, 500,
504 and 506 of the IPC. During the course
of the hearing, this Court has had the
occasion, with the assistance of the learned
Senior Counsel, to peruse the several
complaints that were filed in relation to the
incident dated 21 April 2020. They are
worded in identical terms and leave no
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manner of doubt that an identity of cause of
action underlies the allegations leveled
against the petitioner on the basis of the
programme which was broadcast on 21 April
2020. Moreover, the language, content and
sequencing of paragraphs and their
numbering is identical. It was in this
backdrop that Mr Kapil Sibal, learned Senior
Counsel fairly submitted (in our view
correctly) that this Court may proceed to
quash all the other FIRs and complaints
lodged in diverse jurisdictions in the States,
leaving open, however, the investigation in
respect of the FIR 238 of 2020 dated 22
April 2020 transferred from the Police
Station Sadar, District Nagpur City to NM
Joshi Marg Police Station in Mumbai."
6.6.3 Further, it would also be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of State of
Haryana V/s Bhajan Lal reported in AIR 1992 SC 604,
wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the
various relevant provisions of the Code under
Ch.XIV and of the principles of law
enunciated by this court in a series of
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decisions relating to the exercise of the
extraordinary power under Art.226 or the
inherent powers under sec.482 of the Code
which we have extracted and reproduced
above, we give the following categories of
cases by way of illustration wherein such
power could be exercised either to prevent
abuse of the process of any court or
otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
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by police officers under sec.156(1) of the Code
except under an order of a Magistrate within
the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an
order of a Magistrate as contemplated under
sec.156(2) of the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
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criminal proceeding is instituted) to the
institution and continuance of the proceedings
and/or where there is a specific provision in
the Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him
due to private and personal grudge."
6.6.4 Further, it would also be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Mahmood
Ali versus State of U.P. reported in 2023 SCC OnLine SC
950, more particularly paragraphs : 13 & 14 thereof, which
are as under :
"13. At this stage, we would like to
observe something important. Whenever an
accused comes before the Court invoking
either the inherent powers under Section 482
of the Code of Criminal Procedure (CrPC) or
extraordinary jurisdiction under Article 226 of
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the Constitution to get the FIR or the
criminal proceedings quashed essentially on
the ground that such proceedings are
manifestly frivolous or vexatious or instituted
with the ulterior motive for wreaking
vengeance, then in such circumstances the
Court owes a duty to look into the FIR with
care and a little more closely. We say so
because once the complainant decides to
proceed against the accused with an ulterior
motive for wreaking personal vengeance, etc.,
then he would ensure that the FIR/complaint
is very well drafted with all the necessary
pleadings. The complainant would ensure that
the averments made in the FIR/complaint are
such that they disclose the necessary
ingredients to constitute the alleged offence.
Therefore, it will not be just enough for the
Court to look into the averments made in
the FIR/complaint alone for the purpose of
ascertaining whether the necessary
ingredients to constitute the alleged offence
are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look
into many other attending circumstances
emerging from the record of the case over
and above the averments and, if need be,
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with due care and circumspection try to read
in between the lines. The Court while
exercising its jurisdiction under Section 482
of the CrPC or Article 226 of the
Constitution need not restrict itself only to
the stage of a case but is empowered to take
into account the overall circumstances leading
to the initiation/registration of the case as
well as the materials collected in the course
of investigation. Take for instance the case
on hand. Multiple FIRs have been registered
over a period of time. It is in the
background of such circumstances the
registration of multiple FIRs assumes
importance, thereby attracting the issue of
wreaking vengeance out of private or
personal grudge as alleged.
14. In State of Andhra Pradesh v.
Golconda Linga Swamy, (2004) 6 SCC 522, a
two-Judge Bench of this Court elaborated on
the types of materials the High Court can
assess to quash an FIR. The Court drew a
fine distinction between consideration of
materials that were tendered as evidence and
appreciation of such evidence. Only such
material that manifestly fails to prove the
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accusation in the FIR can be considered for
quashing an FIR. The Court held :-
"5. ...Authority of the court
exists for advancement of justice
and if any attempt is made to
abuse that authority so as to
produce injustice, the court has
power to prevent such abuse. It
would be an abuse of the process
of the court to allow any action
which would result in injustice
and prevent promotion of justice.
In exercise of the powers court
would be justified to quash any
proceeding if it finds that
initiation or continuance of it
amounts to abuse of the process
of court or quashing of these
proceedings would otherwise serve
the ends of justice. When no
offence is disclosed by the
complaint, the court may examine
the question of fact. When a
complaint is sought to be quashed,
it is permissible to look into the
materials to assess what the
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complainant has alleged and
whether any offence is made out
even if the allegations are
accepted in toto.
6. In R.P. Kapur v. State of
Punjab, AIR 1960 SC 866 : 1960
Cri LJ 1239, this Court
summarised some categories of
cases where inherent power can
and should be exercised to quash
the proceedings : (AIR p. 869,
para 6)
(i) where it manifestly
appears that there is a legal bar
against the institution or
continuance e.g. want of sanction;
(ii) where the allegations in the
first information report or
complaint taken at its face value
and accepted in their entirety do
not constitute the offence alleged;
(iii) where the allegations
constitute an offence, but there is
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no legal evidence adduced or the
evidence adduced clearly or
manifestly fails to prove the
charge.
7. In dealing with the last
category, it is important to bear
in mind the distinction between a
case where there is no legal
evidence or where there is
evidence which is clearly
inconsistent with the accusations
made, and a case where there is
legal evidence which, on
appreciation, may or may not
support the accusations. When
exercising jurisdiction under
Section 482 of the Code, the High
Court would not ordinarily embark
upon an enquiry whether the
evidence in question is reliable or
not or whether on a reasonable
appreciation of it accusation would
not be sustained. That is the
function of the trial Judge.
Judicial process, no doubt should
not be an instrument of
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oppression, or, needless
harassment. Court should be
circumspect and judicious in
exercising discretion and should
take all relevant facts and
circumstances into consideration
before issuing process, lest it
would be an instrument in the
hands of a private complainant to
unleash vendetta to harass any
person needlessly. At the same
time the section is not an
instrument handed over to an
accused to short-circuit a
prosecution and bring about its
sudden death....................."
(Emphasis supplied)"
6.7 It is noted that while issuing rule by the
Coordinate Bench of this Court vide order dated 27.07.2021,
this Court has observed in paragraphs : 10 and 11 as under:
"10. In the meantime, no arrest of the
applicant - Mr. Naman Gyanchand Pipara be
made in connection to the FIRs being FIR
No.02 of 2021, 01 of 2021 and 03 of 2021
registered with A.C.B. Police Station, Bharuch
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or any past FIR or contemplated to be filed
in future in relation to the GSLDC scam.
11. No chargesheet be filed without prior
permission of this Court. The Anti-Corruption
Bureau may continue with the investigation.
The applicant to co-operate with the
investigating agency."
6.8 In view of above facts and circumstances of the
case as well as the ratio laid down by the Hon'ble Apex
Court as noted above, this Court is inclined to exercise the
powers under Section 482 of the Code of Criminal Procedure,
1973 in favour of the applicant, at this stage. All these
applications there needs to be allowed.
7. For the reasons recorded above, the following order
is passed :
7.1 All these applications are allowed.
7.2 The impugned FIRs being C.R. No.02 of 2021,
No.03 of 2021 and No.01 of 2021, respectively, registered
with the ACB Police Station, Bharuch are hereby quashed
and set aside, qua the applicant only.
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7.3 Consequently, the proceedings arising out of the
impugned FIRs, if any, are also hereby quashed and set
aside, qua the applicant only.
7.4 Rule is made absolute in all these applications
accordingly.
Direct service is permitted.
Sd/-
(SANDEEP N. BHATT,J)
M.H. DAVE
