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TMI Blog2016 (12) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... FOR THE RESPONDENT : MR CHINTAN DAVE APP ORAL JUDGMENT 1. The present petition is filed by the applicant for the purpose of quashing and setting aside the First Information Report being C.R. No.II 382/2008 lodged before Bhavnagar A Division Police Station, Bhavnagar. 2. The applicant by way of present petition has approached the Court on the premise that an allegation was levelled against him that the applicant has evaded tax while carrying out the business under the name and head of 'Shri Bhavani Ispat'. It was the case of prosecution that the said firm is said to have been engaged in the business of purchase and sale of iron scrap as well as iron rods from 26.09.2005. The firm was granted a registration certificate dated 26.09.2005 under the provisions of Gujarat Sales Tax Act, 1969 on the premise that some irregularities had been committed resulted into evasion of tax. Originally, the First Information Report came to be filed under the provisions of Section 85(2) of the VAT Act, 2003 but later on, the investigating agency has opened an inquiry and added Section 409 of Indian Penal Code, as an offence, having been committed by tendering an application dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appearing for the applicant, the matter was adjourned to sine die . The order dated 12.02.2015 reads as under; At the request of Mr. Nirad Buch, learned advocate appearing for the applicant, the matter is adjourned to sine die. The matter shall be listed only after appropriate application is filed by the applicant. 7. The matter thereafter further came up for consideration and lastly on 29.11.2016, though it was called out thrice in the 1st session, nobody remained present and thereafter at last hour the request was made by the applicant for adjournment. But in view of the fact that track record of this matter was such and the matter is of the year 2009, at the request of advocate Mr. Buch the same was kept on 30.11.2016. 8. Today, when the matter was called out, the learned senior counsel Shri N.D.Nanavati appearing on behalf of applicant has contended that the original order, based upon which the complaint came to be filed, is no longer survived and therefore, there remains nothing to be proceeded against the present applicant. 9. It has also been contended by the learned counsel for the applicant that no doubt the powers under Section 85(2) of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herent jurisdiction and further more one or the other ingredient is missing or other is not the subject matter to exercise inherent jurisdiction. 13. Learned Additional Public Prosecutor has further submitted that since a public revenue is at stake and since prima facie there appears to be some element of offence being committed and in a short period turn over is of huge nature, the prosecution must be given an opportunity to establish the case against the applicant and therefore, the learned A.P.P. has requested the Court not to entertain the petition. 14. It has also been contended that so far as Section 409 of Indian Penal Code is concerned, upon an inquiry, the ingredient of the said Section is prima facie found by the prosecution and therefore, the said offence is also inserted in the complaint in question and therefore, since this Section 409 is pertaining to criminal breach of trust by public servant or by banker, 'merchant' or agent, it is desirable in the interest of justice not to examine in detail the ingredients of Section 409 at this stage of proceedings. 15. It has also been pointed out that when the charge of Section 409 is levelled, the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. 18. Having heard learned counsel appearing for the respective parties and having gone through the material on record and having gone through the aforesaid circumstances in detail, prima facie Court is of the opinion that since the original order of remand was then dealt with by the authority, the case deserves to be adjudicated by an appropriate authority and in view of settled position of law, the Court is not deem it proper to throttle the complaint at this initial stage of the proceeding. It may be at a relevant point of time when the petition was brought before this Court. The order of remand was passed, but then the circumstances which are reflecting on record and the oral instruction passed on to the Court by learned APP which are not confronted by the learned counsel appearing for the applicant, the Court is of the opinion that this is not a fit case for exercising of power under Section 482 of the Code of Criminal Procedure. 19. The Court while coming to this conclusion has gone through the detail averments made in the complaint which are prima facie reflecting that some element of offence is established and in view of the authority entrusted under the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. (ii) Yet in another case i.e. in case of HMT Watches Limited Vs. M.A. Abida And Another, reported in (2015) 11 Supreme Court Cases 776 , while dealing with an issue relating to inherent powers of the High Court, the Apex Court has laid down a proposition tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm. 13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. (iii) In case of N.Soundaram Vs. P.K. Pounraj And Another , reported in (2014) 10 Supreme Court Cases 616 . The relevant extracts of the decision is reproduced hereinafter; Para 13- It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [see State of Haryana v. Bhajan Lal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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