1. The present Criminal Miscellaneous Application has been filed under Section 482 of the Code of Criminal Procedure for the prayer that the FIR bearing Crime Register No.02/2012 of Gujarat High Vigila nce Cell Police Station, Ahmedabad may be quashed and set aside and also prayed to stay the Departmental Inquiry No.5/2011 till the pendency of the proceedings under the Prevention of Corruption Act, 1988, on the grounds stated in the memo of Application.
2. Heard learned Advocate Mr. K.B.Mehta for the Applicant.
Learned Advocate Mr. Mehta has referred to the papers and submitted that normally a complaint is required to be filed and registered before the “Police Station”, which has been defined under Section 2(s) of the Code of Criminal Procedure. He pointedly referred to the definition of the “Police Station” that there should be a notification issued by the State Government and there is no such notification with regard to the alleged Police Station of Vigilance Cell, Gujarat High Court, and therefore, it is not an FIR, for which any cognizance can be taken. He has also submitted that till such notification is published or it is declared as a Police Station, such FIR could not be lodged or registered. Further, learned Advocate Mr. Mehta has submitted that the complainant is a Inspector Gopalsinh Barot and is aged about 61 years, and normally, the date of retirement of the Police Officer is 58, years, and therefore, he should not have filed any complaint.
3. Learned Advocate Mr. Mehta has also referred to the provisions of The Judges (Protection) Act, 1985 (Act No.59 of 1985) [hereinafter referred to as “the Act”] and has referred to Section 3 of the said Act which has been reproduced at page M. Learned Advocate Mr. Mehta has therefore stated that; it is provided in this Act - that no Court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Learned Advocate Mr. Mehta has therefore submitted that the allegations in the FIR are with regard to the judgment / order delivered when he was a Civil Judge (SD) in a case regarding which the allegations are made. He submitted that such provision is made to provide protection to the judicial officers for the act done in discharge of the duty.
4. Learned Advocate Mr. Mehta has relied upon the observations made by the Hon'ble Apex Court in a judgment reported in AIR 1994 SC 1031, K.P.Tiwari v. State of Madhya Pradesh. He has also referred to and relied upon the judgment reported in (1998) (3) GLR, 2648, R.C.Sood v. H.C.of Rajasthan and Ors. to emphasize that no complaint against a judicial officer should be entertained unless it is supported by affidavit. He has also referred to the observations made in case of P.C.Joshi v. State of U.P., 2001 (3) GLR, 2642 and submitted that the present FIR may be quashed and set aside. He has emphasized that the respect of the judiciary is not enhanced when the Judges at the lower level are criticized. He has therefore submitted that the present Petition may be allowed.
5. Though the submissions have been made, the first aspect which is required to be considered is whether the FIR, which is registered at “Gujarat High Court Vigilance Cell” that it is not a “Police Station” unless it is notified by any notification. It is required to be mentioned that the “Gujarat High Court Vigilance Cell” has been notified by the State Government as a “Police Station” by Notification dated 31.3.1994. Therefore, this submission cannot be accepted.
6. It is required to be mentioned that as stated in the complaint / FIR itself, the preliminary inquiry has been made and on the basis thereof when the Vigilance Cell has made a inquiry, a confidential communication has been addressed with the report, on the basis of which the FIR / complaint has been registered with regard to the alleged charges of corruption while deciding the case. The submission made by learned Advocate Mr. Mehta referring to the provisions of the Judges (Protection) Act, 1985 with much emphasis on Section 3, is required to be considered in context of the allegations made in the FIR. The statute or the Act has been enacted to provide protection to the judicial officer in discharge of duty and the act must be in discharge of duty and not dehors such duty. It is well accepted that the protection may not be available if the act is done not in discharge of duty but under the colour of duty and / or for any illegitimate purpose of the motive where it could attract alleged offence either under the Prevention of Corruption Act or the Indian Penal Code. Merely because the person is holding the post as a Judge does not entitle him or exempt him from any kind of liability for misdeed including the corruption in discharge of duty. By virtue of his post if the alleged offence is committed, it would frustrate the very purpose and object of the Act for which it is enacted to give protection to the judicial officers. But at the same time if such act is committed and after having some prima facie material collected by the Vigilance Cell, the FIR is registered on the basis of the instructions given by the High Court on administrative side, it cannot be said that such FIR is not maintainable or it is contrary to the provisions of the Act.
7. It is required to be mentioned that the faith and confidence of the people in the judiciary is required to be maintained, protected and the subordinate judiciary as the pillar of the judicial hierarchy should not to be viewed with any kind of cloud, and when the charges of corruption based on some prima facie material by the Vigilance Department of the High Court itself have been found, the interference with such complaint would be counter-productive and it would not be in the public interest.
8. The another submission which has been made by learned Advocate Mr. Mehta referring to the observations of the Hon'ble Apex Court, it is required to be mentioned that they have been given in a facts and circumstances of the case and the observations have been made referring to the departmental inquiry and the charges levelled against them. In the facts of the present case, the complaint has been registered only on 20th July, 2012 and even when the investigation may not have been made and it is at the threshold, inherent jurisdiction of the High Court under Section 482 of Cr.PC cannot be invoked. The Hon'ble Apex Court has made the observations referring to the scheme of the Code of Criminal Procedure that the High Court should not interfere in the investigation till the report under Section 173(2) of Cr.PC is submitted as it is at that stage when on the basis of the prima facie material it could be considered. The Hon'ble Apex Court in a judgment reported in AIR 2003 SCC 2612 – Union of India v. Prakash P. Hinduja and another has observed:
“19. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer-in-charge of police station in Court under S.173(2), Cr.P.C., this field being exclusively reserved for the investigating agency.”
Therefore, inherent powers under Section 482 of Cr.PC cannot be exercised by the Court. In a subsequent judgment reported in case of Pratibha v. Rameshwari Devi and Ors. - (2007) 12 SCC 369, the same view has been affirmed by the Hon'ble Apex Court.
9. The Hon'ble Apex Court in a judgment reported in AIR 1999 SC 1216 – Rajesh Bajaj v. State NCT of Delhi and Ors. has observed:
“9. ............... Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage ”
10. Further, the Hon'ble Apex Court in catena of judicial pronouncements has laid down the guidelines with regard to scope of exercise of discretion under Section 482 of Cr.PC with a word of caution that it has to be exercised with care and circumspection. The Hon'ble Apex Court in a judgment reported in AIR 2008 SC 2781 – Dr. Monica Kumar & Anr. v. State of Uttar Pradesh & Ors. has observed:
“30. We may reiterate and emphasise that the powers possessed by the High Court under Section 482, Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, moreso when the evidence has not been collected and produced before the Court and the issues involded, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.”
11. Therefore, in light of the aforesaid facts and circumstances and considering the allegations in the FIR, which are required to be considered as to whether the statements or the averments in the FIR constitute the offence prima facie or not, is required to be considered and is not required to be examined meticulously or the Court is not required to appreciate any evidence at the threshold.
12. It is in these circumstances, considering the aforesaid facts and circumstances as well as the guidelines laid down by the Hon'ble Apex Court with regard to the exercise of jurisdiction under Section 482 of Cr.PC, the present Criminal Miscellaneous Application deserves to be dismissed in limine and accordingly stands dismissed.
(Rajesh H. Shukla,J) Jayanti*