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Judgment
K.S. Jhaveri, J.—By way of present petition the petitioner has prayed to quash and set aside the Notice dated 01.03.2005 issued by Registrar, Joint District Judge Court, Veraval against the present petitioner in Sessions Case No. 66 of 2004 under the provision of Section 250 of the Code of Criminal Procedure which is at ANNEXURE D to the present petition and also to quash and set aside the direction issued in paragraph 4 of the operative portion of the judgment and order dated 28.02.2005 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Verval which is at ANNEXURE C to the present petition.
The facts of the case in brief are that on 30.07.2004 the petitioner filed a complaint being C.R. No. I-129 of 2004 before Veraval City Police Station against respondent Nos. 2 to 6 under Sections 143, 148, 149, 452, 307, 436, 427, 337, 188 of the Indian Penal Code and Section 135 of the Bombay Police Act.
2.1 The investigation proceeded and the charge sheet was filed against 5 persons except Ismailbhai Beda Indawala. The case was committed to the Court of Sessions for trial and it was numbered as Sessions Case No. 66 of 2004. The trial was proceeded and the petitioner was examined. The petitioner identified the respondent No. 6- Arif Ismail Beda and could not identify others because of the fact that others were not the persons who were named by the petitioner. The correct people were not identified and arrested and no identification parade was ever held.
2.3 The learned Additional Sessions Judge, 5th Fast Track Court, Veraval by order dated 28.02.2005 acquitted all the accused and further directed the present petitioner who is learned APP, Veraval to pay Rs. 10,000/- to the accused No. 5 and Rs. 5,000/- to accused Nos. 1 to 4 each for filing false complaint against the respondents. Pursuant to this order, a notice was also issued to the petitioner on 01.03.2005 u/s 250 of the Code of Criminal Procedure directing to appear on 11.03.2005 for giving explanation to the same.
2.4 Being aggrieved by and dissatisfied with the order of the learned Judge the present petitioner preferred present petition.
3.0 Learned advocate for the petitioner submitted that notice was issued with personal prejudice with the petitioner as on earlier occasions the learned Judge had meted out arbitrary and discriminatory treatment to the petitioner. He further submitted that order dated 28.02.2005 and notice dated 01.03.2005 were not required to be passed on the ground that petitioner identified one respondent No. 6 and the names of the other accused were also perfectly given by the petitioner as the complainant but the persons who were not named by the petitioner in the complaint were arrested as accused by the police. The petitioner, therefore, rightly did not involve by falsely identifying those accused in the Court. The petitioner-complainant has filed the said complaint being an individual, however, the learned Judge has referred him as Additional Public Prosecutor. There is nothing on record to show that the petitioner has made efforts to bring the Investigation Officer under pressure to bring certain evidence on record. On the contrary, the prosecution has not examined the necessary eye-witnesses in the present case but the petitioner has never influenced the prosecution to lead evidence in a particular style so as to benefit the petitioner-complainant in the case and the petitioner-complainant has kept himself at a distance in this case from all concerned to ensure that accused should not feel that his position is affecting the position of the case.
2.6 Learned advocate for the petitioner contended that observations which are made are contemplated as a lawyer and that conduct as a lawyer is reflected in the order. Section 250 reads as under:
Compensation for accusation without any reasonable cause.-(1) if, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one; or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid.
While conducting the trial the learned Judge has accepted that petitioner is the practicing lawyer and he was regularly appearing before the Sessions Court and observations made in paragraph 20 of the judgment are that because of the election rivalry, the present complaint is filed. The accused were acquitted and notice was issued and in operative order following order is passed.
Original informant-Shri Dineshbhai Borichangar, Assistant Government Pleader- Additional Public Prosecutor has filed complaint without any reasonable and judicial reasons. Therefore he is directed to pay Rs 10,000 to accused No. 5 and Rs. 5000/- to accused Nos. 1 to 4 each.
Mr. Saiyed, learned advocate for Mr. M.M. Tirmizi appearing on behalf of the respondent No. 6 has strongly opposed the present petition on the ground that in this case the High Court should not exercise power under Sections 482 of Code of Criminal Procedure and Articles 226 and 227 of the Constitution of India and this petition deserves to be dismissed. It is submitted that in view of issuance of Notice issued u/s 250 it will be not open to challenge the same before this Court.
4.1 Mr. RC Kodekar, learned APP for the respondent-State has submitted that there is no finding in the prosecution that prosecution was frivolous, false and vaxatious.
Heard the learned advocates appearing for both the side. Before proceeding with the matter primary observation made in the order dated 25.03.2005 are as under:
Heard ld. counsel appearing for the petitioner.
Rule returnable on 13.04.2005. Ld. APP Ms. NV Joshi appears and waives service of Rule for respondent No. 1 State.
In response to the submissions of ld. counsel appearing for the petitioner for grant of interim relief, it has been submitted by ld. APP Ms. Joshi that at Show Cause Notice stage, the Court should not grant stay of further proceedings and the petitioner is supposed to show cause and can ably point out that there was no scope for issuance of notice u/s 250 of CrPC, but having considered the copy of the deposition attached to the petition as well as certain observations made by the ld. Addl. Sessions Judge in the judgment, the Court is of the view that if the stay is not granted, that may lead to frustration and, therefore, this Court is inclined to granted stay.
Hence, by way of ad-interim relief, there shall be stay of further proceedings in reference to the judgment and order dated 28.02.2005 passed by ld. Addl. Sessions Judge, Fast Track Court No. 5, Veraval (Annex.C) in Sessions Case No. 66/2004 as well as notice to show case dated 01.03.2005 (Annex.D) till the returnable date.
As a result of hearing and perusal of the record certain aspects are not in dispute. The persons who were not named by the petitioner in the complaint were arrayed as accused by the police in the charge sheet. The prosecution has only identified the petitioner as the witness despite the fact that there are other eye-witnesses of the incident. All the panch witnesses have turned hostile and only Investigation Officer and P.S.O are examined. The evidence which is led by the prosecution was not adequate. The charge sheet shows names of other eye witnesses. The petitioner has filed the complaint being an individual, however the learned Judge has referred him as Additional Public Prosecutor.
6.1 The prosecution has not examined the necessary eye witnesses in the present case and it is required to be noted that the petitioner has never influenced the prosecution to lead evidence in a particular style so as to benefit the petitioner-complainant in the case and the petitioner-complainant has kept himself at a distance in this case from all concerned to ensure that accused should not feel that his position is affecting the position of the case.
6.2 It is further evident from the record that the petitioner identified respondent No. 6. Though the names of other accused were perfectly given by the petitioner, the persons who were not named by the petitioner in the complaint were arrested as accused by the police. Therefore, obviously the petitioner cannot falsely involve those persons. Therefore, naturally they were acquitted and it cannot be said that the petitioner is guilty of the offence.
6.3 Thus from the above facts it cannot be said that there was reasonable ground for directing the petitioner to pay compensation in the present case. It is also born out from the record that there was no reason for the learned Judge to come to the conclusion that the complaint was filed without any reasonable and judicial reasons.
6.4 Learned advocate for the respondent is not in a position to show the information as contemplated u/s 250 of the Code of Criminal Procedure. Therefore in my view the notice is required to be interfered by this Court and petition is allowed. Notice issued by the Registrar, Joint District Judge Court, Veraval at ANNEXURE D is quashed and set aside. Rule is made absolute to the aforesaid extent.