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The Indian Penal Code
THE ADVOCATES ACT, 1961
The Code Of Criminal Procedure, 1973
Section 195 in The Indian Penal Code
Section 195 in The Code Of Criminal Procedure, 1973
Citedby 2 docs
Swamy vs State on 9 February, 2011
Swamy vs State on 12 January, 2012

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Gujarat High Court
Ajit D. Padiwal vs State Of Gujarat And 2 on 15 September, 2004
Equivalent citations: (2005) 1 GLR 743
Author: D Trivedi
Bench: D Trivedi, K Mehta

JUDGMENT

D.K. Trivedi, J.

1. Petition, which was filed in the year 1994, by practicing advocate on the basis of the news paper report against the issuance of non bailable warrant against the high dignitaries of Maharashtra State by the Judicial Magistrate at Dakor alleging that in Dakor Court in District Kheda that the warrants are being issued against anyone and every one just for asking and all that has to be done is to file complaint of whatsoever nature. The petitioner late Shri Ajit D.Padiwal, a practicing advocate has while filing this public interest litigation annexed the copies of news paper reports published in daily Times of India from Ahmedabad dated 9.12.1994 as well as the Gujarati News paper "Gujarat Samachar" from Ahmedabad dated 8.12.1994 and other news papers cuttings published from Ahmedabad, Vadodara and Rajkot, namely, daily Lok Satha dated 8.12.1994. Relying upon the said news items, the petitioner had approached for seeking relief by way of filing petition under Articles 226 and 14 of the Constitution of India by joining State of Gujarat and Registrar of High Court of Gujarat and the Bar Council of Gujarat and prayed for directions, which reads in paragraph 13 as under:-

"13.(A) Your Lordships be pleased to direct appropriate proceedings be initiated against the persons involved in the 'scandal of warrants' like initiating criminal prosecution and/or disciplinary proceedings under the Advocates Act, 1961 read with the Bar Council of Gujarat Rules and/or initiating contempt proceedings for the act of perjury, in the larger interest of the institution and the public at large, by issuing a writ of mandamus or any other appropriate writ, order or direction of this Honourable High Court.

(B) Yours Lordships be pleased to direct that appropriate enquiry be held by the concerned respondents/competent authorities with regard to the 'scandal of warrants' as per the news report at Annexure A colly. and further be pleased to direct the concerned respondents to place the persons under suspension/ to suspend the Sanad of all concerned advocates involved in the 'scandal of warrants' as per the news report at Annexure A colly., by issuing appropriate writ, order or direction of this Hon'ble High Court.

(C) Your Lordships be pleased to direct the concerned respondents to hold appropriate enquiry with regard to the 'scandal of warrants' as per the news report at Annexure A colly. and be pleased to direct the concerned respondents to submit the report in that regard to this Honourable High Court by issuing a writ of mandamus or any other appropriate writ, order or direction of this Honourable High Court.

(D) Your Lordships be pleased to forthwith direct the concerned respondents to place the concerned persons under suspension/to suspend the Sanad of the concerned advocates involved in the 'scandal of warrants' as per the news report at Annexure A colly. to the petition, pending the final disposal of this petition.

(E) Your Lordships be pleased to grant any such other and further reliefs as thought fit and proper, in the interest of justice."

2. This petition is affirmed by late Shri Padiwal on 12.12.1994 and this petition was treated as public interest litigation. As transpired from the docket sheet, the matter was ordered to be circulated for admission before the court on 13.12.1994 as per direction of the learned Chief Justice Shri B.N.Kirpal and Justice A.N.Divecha and the Division Bench consisting of Chief Justice and Justice Divecha had issued notice which was made returnable on 20.12.1994 by permitting direct service. Unfortunately this petition though notified earlier for consideration before the Division Bench had remained pending till it was notified before us for consideration.

3. As the petition is filed as public interest litigation and the original petitioner Shri Padiwal had expired, who was practicing advocate of this court, we thought it fit to proceed further with the hearing of this petition without appointing any practicing advocate to represent the petitioner by appointing the advocate as amicus curiae as according to us if any appointment is being made as amicus curiae there will be a further delay for consideration. However, while hearing this petition we have requested Mr. S.N.Shelat, the learned Advocate General of this High Court to assist us in the matter in disposing of this public interest litigation. We had also heard Mr. Arun Oza, learned G.P., for the State of Gujarat and Mr. Pardiwala, learned advocate, who appeared for the High Court while Mr. Girish Bhatt, learned advocate, had appeared and represented Bar Council of Gujarat. Mr. S.V.Raju, learned advocate, appeared in view of the order passed earlier by the Division Bench in an application filed by Manhar Galani for joining party in this proceedings, though his request for joining party was rejected by the Division Bench earlier. At the fag end of hearing of this petition Mr. K.B. Anandjiwala has moved this court by filing application being Civil Application No. 5683 of 2004 filed by Tarachand Manumal Lalwani of Dabhoi, who was the original complainant in a complaint filed against Manhar Galani and as per the said application Tarachand Lalwani has requested that he may be joined as one of the respondents in main Special Civil Application. Tarachand Lalwani had also alongwith the application annexed various documents, including the affidavit filed by Suman Tarachand Sindhi, wife of Tarachand, and the statement recorded by the police dated 25.2.2004 of Shri Bharatbhai Manilal Dave and the Special Criminal Application filed by Tarachand for seeking relief being Special Criminal Application No. 132/2004.

4. During hearing we have heard the counsel for the parties at length, who in turn has taken us through the bulky record of the petition and also taken us through the order passed by the Courts in respect of complaint filed by respective complainant against Manhar Galani and his family members as well as the orders passed by the Apex Court from time to time earlier in an Appeal filed by Manhar Galani being Criminal Appeal Nos. 12-11-1216 of 1999 by which the Supreme Court has set aside the judgment and order of the learned single Judge passed in various Criminal Misc. Applications filed by the accused including Special Criminal Applications as well as the order passed while disposing of this Special Civil Application No. 13258/94 and accordingly this public interest litigation filed by late Shri Padiwal is restored for consideration by which the court has to give directions as prayed for in the petition. The directions, which were sought, are pertaining to various Institutions, namely, judicial officers, who are functioning as Judicial Magistrates in the lower judiciary of Gujarat as well as the practicing advocates in various courts in Gujarat for which the petitioner has also joined Bar Council of Gujarat as the Bar Council of India also can take steps under the Advocates Act against the advocates, who are involved in such type of mal practice and the staff of the lower judiciary, who are also involved in such malpractice in helping such scrupulous persons in approaching the court by filing false complaint and on such complaint being filed, the Magistrate has issued non bailable warrants without verifying the complaint. We may also observe at this juncture that the incident, which has occurred in the year 1994, by which the Judicial Magistrate has issued non bailable warrant against the high dignitaries for which public interest litigation, which was filed, was unattended even after the Supreme Court has restored the said Public Interest Litigation when the Supreme Court has set aside the order of the learned single Judge while disposing of various Criminal Misc. Applications as well as Special Criminal Applications filed for quashing the complaint as well as for disposing of this public interest litigation as back as on 17.11.1999 and as this petition was unattended another incident of similar nature had arisen in the court of the learned Chief Metropolitan Magistrate at Meghaninagar at Ahmedabad. In short as transpired from the record of this case that the issue is related to functioning of the courts in Gujarat at the hands of the Magistrates and their staff, the practicing advocates and their clerks attached to the respective courts and the litigants. As reflected in the news paper for which the public interest litigation was filed on the basis that in Dakor Court situated in District Kheda where the Magistrate is issuing warrants against any one and every one just for asking and all that has to be done is to file a complaint of whatsoever nature and as found from the said news paper cuttings that the Magistrate at Dakor had issued warrants against high dignitaries of Maharashtra State by charging Rs. 6500/-per warrant and accordingly the warrants are being sold. It is further found from the original petition that Shri Padiwal, the petitioner, had deleted Registrar of this Court from party respondents. As observed from the reliefs sought for by the petitioner, the petitioner has approached for seeking direction to initiate appropriate proceedings against the persons involved in a scandal of warrants like initiating criminal prosecution and/or disciplinary proceedings and the advocates, who are involved in such scandal, the petitioner has prayed that necessary direction be issued to the Bar Council of Gujarat to take steps against such advocates under the Advocates Act, 1961 read with the Bar Council of Gujarat Rules and initiate contempt proceedings for the act of perjury in the larger interest of the Institution and the public at large.

5. As transpired from the record that when the petition was for consideration before the Division Bench on 20.12.1994, the learned G.P. appeared for State of Gujarat and Shri Girish Bhatt appeared for Bar Council of Gujarat and the Division Bench has recorded the statement of Shri Bhatt, who appeared for the Bar Council of Gujarat which reads as under:-

"Mr.G.D.Bhatt, learned advocate, appearing on behalf of Bar Council of Gujarat, states that an extra ordinary meeting of the Bar Council of Gujarat is called on 22nd December, 1994, at 4.50 p.m., to transact, inter-alia, the following business:

"To consider and take appropriate decision in respect of Special Civil Application No. 13258 of 1994 filed by Advocate Ajit D.Padiwal by way of Public Interest Litigation in connection with arrest warrants said to have been issued by the Learned Chief Judicial Magistrate (F.C.), Dakor, as narrated in the News Items annexed to the petition."

By recording the statement of Mr. Bhatt, the Division Bench has further observed which reads as under:-

"Considering the newspaper reports, and the seriousness of the allegations, the Director General of Police, Gujarat State, is directed to enquire about them and, if necessary, to entrust the enquiry to the competent Senior Officers of the C.I.D., Crime Branch. He is further directed to submit the report to this court, as early as possible.

S.O. to 16th January, 1995."

6. In view of the direction given by the Division Bench appointed a senior officer of the CID (Crime) Branch to submit report and accordingly the Court was to consider about the report submitted by the CID on the returnable date. We may mention here that as transpired from the report submitted from time to time in respect of the news item published in the news paper for which the public interest litigation was filed for scandal in issuing warrants by Dakor Court, it is reported that for initiating such steps by filing such bogus complaint against such high dignitaries was the mastermind of Manhar Galani with the help of one news paper reporter from Mumbai and as transpired that they approached the advocate at Dakor for filing such complaint by negotiating with the advocate for which the advocate is required to make all arrangement for finding out complainant for such complaint being filed against such high dignitaries for which Manhar Galani or the reporter has only to pay the fees to the advocate. So as found from the report that Mr. Manhar Galani with the help of the reporter from Mumbai had knowing fully well that a complaint is to be filed against the high dignitaries of Maharashtra State for which the advocate at Dakor has to make all arrangements to find out the complainant and they are only required to pay the fees to the advocate for that work and further that they were not interested in executing such warrants issued by the court against high dignitaries. Meaning thereby their idea was to bring to the notice of the public at large that the warrants are being obtained simply by filing false complaint by paying money through advocate. It is also brought to our notice during hearing from Mr. Raju, who appeared for Manhar Galani, that the police has recorded the statement, which was treated as complaint and the offence was registered on the complaint being filed by Shri Galani against various persons, who are involved in an offence against which a complaint was filed by them against Shri Galani and his family members. The said complaint was registered vide C.R.No.1/95 by which during investigation of the said complaint, the police had collected material to show that a false complaint has been filed against Manhar Galani in different courts in Gujarat with the help of advocate and other persons. And because of filing such complaint against Manhar Galani and his family members, they were harassed and even the police has arrested him and he had to remain in police custody and judicial custody for number of days. It is his case that a conspiracy was hatched by some of the group of persons against him and his family members and he was involved wrongly by filing false cases in different courts for which the cases are pending before different courts in State of Gujarat.

7. At this juncture we may observe that on the basis of the complaint filed by Manhar Galani before the Police vide C.R.No.1/95 against those persons, who are instrumental in filing bogus cases against Manhar Galani and his family, had approached this High Court by filing Criminal Misc. Applications as well as by filing Special Criminal Applications praying for quashing such complaint and while filing such complaint Manhar Galani was not shown as respondent in the said proceedings and this group of applications and Special Criminal Applications were disposed off by the learned single Judge of this Court by quashing the complaint as per judgment and order dated 14.8.1997 and while disposing of this group of Criminal Misc. Applications with Special Criminal Applications, the learned single Judge had also disposed off this public interest litigation being Special Civil Application No. 13258/94 and the learned single Judge in paragraph 21 of his judgment has observed which reads as under:- "21. So far as petition No. 13258 of 1994 is concerned, it was being contested by the party-in-person. Unfortunately during the pendency of the petition, the party-in-person i.e. the petitioner expired. However, since the matter is tied up along with aforesaid other matters, and the facts being also similar, this petition also shall meet with the fate of other petitions."

8. The order passed by the learned single Judge while disposing off all the applications as well as Special Criminal Applications including the present Special Civil Application, the Supreme Court had set aside the said order while entertaining the appeal filed by Manhar Galani being Criminal Appeal Nos. 1211-1216 of 1999. The Supreme Court has observed in respect of the public interest litigation in its order in paragraph 4, which reads as under:- "So far as the public interest petition is concerned, not only the counsel for both sides agreed that the same ought not to have been set aside but we also fail to understand how the High Court in exercise of its power under extraordinary jurisdiction can interfere with a collateral proceeding initiated by the High Court itself in an application filed in public interest. There can not be any dispute that the facts revealed a serious scandal in the functioning of some subordinate Courts in the State of Gujarat and, therefore, the High Court took cognizance of the matter and directed inquiry to be conducted, and on the basis of the said inquiry, it was open for the High Court to issue necessary directions and at that stage the impugned order has emanated. In our considered opinion, the order in the impugned judgment setting aside the aforesaid public interest petition is erroneous and we, therefore, set aside the said order and direct that the public interest petition should be considered by the High Court on merits on the basis of the reports submitted to the Court and appropriate directions be given whatever the Court thinks fit."

9. In light of the directions given by Apex court and the relief sought for by the petitioner in a public interest litigation, where the court had earlier directed the Special Officer of the CID to submit report and on the basis of the report submitted from time to time even during the hearing of this petition, this court is required to consider that what direction is necessary in respect of the cases pending against Manhar Galani in different courts in Gujarat as well as on the basis of independent offence registered on the complaint being filed by Manhar Galani registered vide C.R.No.1/95.

10. On examining the entire record of this case and the Criminal Misc. Applications filed by different accused, on the complaint being filed by Manhar Galani registered vide C.R.No.1/95, praying for relief of quashing said complaint and also praying for bail and the public interest litigation was tagged on with those applications and it is only because this public interest litigation was tagged on with other applications filed by other accused, the learned single Judge has disposed off all the Criminal Misc. Applications by quashing the complaint registered vide C.R.No.1/95 and also disposed of this public interest petition. As found from the record that this public interest litigation was pending for consideration and many Applications and Special Criminal Applications filed by the accused of C.R.No.1/95 were also placed before the Division Bench from time to time. All these Special Criminal Applications were placed before the Division Bench and as found from the order passed in Criminal Misc. Application No. 5722 of 1994 filed by Miteshchandra Manilal Khambholja and others, as per order dated 17.10.1995 by the Division Bench, considering the prayer made in the application, namely, the prayer for quashing and setting aside the registration of offence under C.R.No.I-211/94 and also for anticipatory bail, the office was directed to place the matter before the appropriate court and accordingly the matter was placed before the learned single Judge thereafter on 17.2.1997. We have also called for the papers of Special Criminal Application No. 436/95 filed by Tarachand and others by which the petitioner Tarachand and other accused of C.R.No.1/95 registered at CID (Crime) Vadodara had similarly prayed for quashing and setting aside the investigation of the said case and prayed for stay of further proceedings of the investigation by CID (Crime), Vadodara and they have also prayed for anticipatory bail. In the said application Tarachand had filed affidavit on 2.3.1995. In the said petition the learned single Judge has as per order dated 7.7.1997 issued rule ad by way of interim relief further proceedings are stayed and hearing of the Special Criminal Application was ordered to be heard alongwith Criminal Misc. Application No. 5722/94.

11. The Special Criminal Applications filed by Tarachand and others were notified before the learned single Judge for final hearing and the learned single Judge has allowed the said Applications for quashing the complaint by judgment and order dated 14.8.97 and by virtue of the order passed by the learned single Judge, the complaint being C.R.No.1/95 registered at C.I.D. (Crime), Vadodara was quashed. We may indicate that as observed earlier C.R.No.1/95 was registered by the police on the complaint being filed by Shri Manohar Galani. The learned single Judge has accordingly finally disposed off all the Applications, namely, Special Criminal Application No. 372/95, Special Criminal Application No. 436/95 and Special Criminal Application No. 527/95 and Criminal Misc. Application No. 751/95 and Criminal Misc. Application No. 933/95 etc. The learned single Judge has while disposing of all these applications/petitions also disposed off the present public interest litigation petition, which was filed by Mr. Padiwal being Special Civil Application No. 13258/94.

12. We have already observed that the accused of C.R.No.1/95 when they approached the High court, they have not joined Manhar Galani as party respondents and when the learned single Judge had occasion to deal with various Criminal Misc. Applications and Special Criminal Applications by common judgment disposed off those proceedings filed by the respective accused of C.R.No.1/95 including the present public interest litigation. It is only because Manhar Galani had approached the Apex Court and challenged the order passed by the learned single Judge of this Court in a group of applications dated 14.8.1997 and the said decision is already reported in JT 1999(9) SC 142 and we have already observed about the observation made by Apex Court dealing with this public interest litigation while restoring this petition by giving direction to dispose off the same in accordance with law.

13. In view of the judgment of the Apex Court, the Supreme Court has set aside the order of the learned single Judge in all the Special Criminal Applications filed by the concerned accused, who are the accused in respect of the offence registered under C.R.No.1/95 by C.I.D.(Crime) at Vadodara and the said offence was registered at the instance of the complaint filed by Shri Manohar Galani. It is very clear as observed by the Apex Court and even the counsel appearing on behalf of all the parties, including the accused of C.R.No.1/95 also agreed that disposal of public interest litigation was not proper by the learned single Judge and the Apex Court has accordingly by setting aside the order of the learned single Judge, the present public interest litigation was revived and restored. It is unfortunate that though the Supreme Court has set aside the order of the learned single Judge as back as on 17.11.99, this petition filed by late Shri Padiwal had remained pending till date. We may observe that by the public interest litigation filed by the petitioner in person, he in fact has sought direction to the various authorities in respect of issuance of warrants by the concerned court in State of Gujarat and the direction was also sought for against the advocates, who are involved in said scandal and even against court and their staff and the public who are involved by filing such false complaints against the persons in court of law by which the court had issued orders by even issuing warrants.

14. As found, the Dakor court had issued warrant against high dignitaries of the Home Ministry of Maharashtra State and also the Acting Chief Justice of Bombay High Court and others. Such warrants were issued by learned Judicial Magistrate functioning at Dakor in the year 1994 and as the petition was dismissed by the learned single Judge on 14.8.97 and the Supreme Court has set aside the judgment of the learned single Judge on 17.11.99 after about nearly 10 years another incident in the same manner is brought in light where by adopting such method of filing false complaint against the persons of high dignitary, namely, the President of India and the Chief Justice of India and others, the learned Metropolitan Magistrate at Meghaninagar had issued warrants and this fact has been brought to the notice of the Apex Court where it is noticed by the Apex Court in respect of the petition being public interest litigation filed before this court in 1994 and the Supreme Court has set aside the order of the learned single Judge by remitting the matter for consideration by the High court on merits and the same is pending till date and accordingly the Supreme Court was also anxious by giving direction that this pending petition deserves early disposal of the matter in accordance with law. After the Supreme court has allowed the Appeal filed by Mr. Manohar Galani against the accused who are involved in C.R.No.1/95, we are told that the case is still under investigation and some of the accused are arrested against whom the charge sheet is also submitted before the Special Court and the investigation is still in progress.

15. As observed earlier in this pending petition Manhar Galani had filed application for joining party respondent in this matter through advocate Shri Raju and as found from the order passed by the Division Bench on the said application, the request for joining party respondent was rejected. However, the registry was directed to show the name of Mr. Raju as and when the matter is notified for hearing and accordingly as the name of Mr. Raju has appeared on the board, Mr. Raju, learned senior advocate, has vehemently in support of his contention prayed that the complaint filed by different persons in different courts in Gujarat against his client Manhar Galani and his family members be quashed and set aside in view of the fact that as per the inquiry/investigation conducted by the CID (Crime), it is amply established that such proceedings initiated against Manhar Galani and his family members are for some oblique purpose and they are false. Equally Mr. Tarachand has also filed application for joining party through advocate Shri Anandjiwala by which the applicant Tarachand Lalwani had also annexed various documents and he has prayed that he may be joined as party respondent No. 4 as a proper or necessary party as he has filed complaint against Manhar Galani and others and in the said criminal case the court has taken cognizance and the criminal case is pending against Manhar Galani and others and as he was complainant in the said case he will appear before the court and prove the case against Manhar Galani and others. Mr. Anandjiwala has also while arguing this application taken us through the application and the documents attached thereto and contended that Tarachand was also arraigned as one of the accused in respect of the complaint filed by Manhar Galani before the Police and the offence was registered being C.R.No.1/95 at CID (Crime) Vadodara. A copy of the application filed by Tarachand was also served on Mr. Raju, who appeared for Manhar Galani and Mr. Arun Oza, learned G.P., who appeared for the State ad Mr. G.D.Bhatt, who appeared on behalf of Bar Council of Gujarat.

16. Mr. S.V.Raju, learned senior advocate, appearing for Manhar Galani has vehemently urged that as found from the report submitted by CID (Crime) and as the court has directed the CID (Crime) to submit report, this court has to consider such report of Senior Officer of the CID and according to him such reports submitted by the officer can be considered to be a person appointed by way of inquiry and that report is to be considered as report of the Commission. He further contended that all the record and proceedings filed against Manhar Galani in different courts are before this court and on the basis of the report submitted by the officer, all the complaints in different courts filed against Manhar Galani be quashed and set aside and all the criminal cases are accordingly required to be disposed off. On the other hand Mr. Anandjiwala representing one of the complainants Tarachand has vehemently urged that such report submitted by the CID (Crime) cannot be considered the final outcome as highlighted by him in his application where only the police has recorded statements. According to him complaint filed by Tarachand is genuine which shows that Manhar Galani and other co-accused are involved in a serious offence and his client Tarachand has proved his complaint before the court of law. A complaint filed by Tarachand against Manhar Galani is in the court of the learned Judicial Magistrate, First Class, Dabhoi and on the complaint being filed by Tarachand the Police has submitted charge-sheet against Manhar Galani and others and the criminal case is pending before the said court and it is only as per the direction of the Apex Court record of the said criminal case is brought to this court. He accordingly submitted that this court will not accept such report of the police by which the complaint filed by Tarachand against Manhar Galani and others deserves no order of quashing the said complaint. We may also observe here that it is the case of Manhar Galani in a complaint filed by him before the police registered vide C.R.No.1/95 at CID (Crime), Vadodara where it is his case that a false case has been registered against him and his family members. As per his complaint, false cases were filed against him and his family members in different courts in Gujarat and the record and proceedings of these 10 cases are also lying with this Court and in light of the report submitted by CID (Crime) the complaint filed by Tarachand deserves to be quashed alongwith other 10 cases filed against him and his family members in different courts in Gujarat.

17. Mr. Arun Oza, learned G.P., has vehemently urged that even earlier when the Division Bench had issued direction as back as in 1994 by appointing senior officer of the CID (Crime), the reports from time to time were submitted and the officer, who has submitted report, has also filed affidavit. According to Mr. Oza that all the cases were filed against Manhar Galani and others in different courts of Gujarat through advocates. As found from the reports of the Senior Officer, indicate that some of the judicial officers are also involved in the matter. According to Mr. Oza that as per the report of the CID false complaints are being filed against Manhar Galani and his family in different courts in Gujarat by creating fictitious persons and through fictitious persons complaints were filed before the Magistrate and on such complaint being filed, the Magistrate has taken cognizance of such complaint and passed order and as per the report of the officer that about 17 persons, who are involved in such type of racket and the police has arrested them, out of which the advocates, retired Magistrate and judicial staff attached to the court and high ranking police officers are involved in such racket. Mr. Oza has also in his submission brought to our notice that a single handed officer is inquiring into the matter and while investigation is in progress, he has also recorded the statements of various witnesses and accordingly prayed that necessary direction also required to be issued by this court by providing assistance of a person, who can assist the inquiry officer and he has also submitted that as found from the report even in respect of the pending cases for which the record and proceedings is lying in this court for which the investigating officer is also required some original documents for his investigation for which he has also prayed that necessary direction also be given to Registry of this Court.

18. It is the contention of Mr. G.D.Bhatt, learned senior advocate, who appeared for the Bar Council of Gujarat and he has also brought to our notice certain provisions of the Rules framed by the Bar Council of India under the Advocates Act, 1961. According to Mr. Bhatt even as per the scheme of the Act, the Bar council is examining any complaint received against the advocate and such complaint is being examined by the disciplinary committee appointed by the Bar Council. Mr. Bhatt has also taken us through the affidavit filed in this proceedings on behalf of the Bar Council and highlighted about the steps taken against the advocates under the provisions of the Advocates Act. Mr. Bhatt has also submitted that in view of the provisions of the Advocates Act as well as as per the Rules framed by Bar Council of India, any complaint against advocate received by the Bar Council if it is not concluded within a period of one year, the said complaint is being transferred for consideration to the Bar Council of India. In respect of the complaint received against 2 advocates, who are involved in Dakor warrant scandal, by which the court had issued warrants against the high dignitaries and the Bar Council had initiated action and the Bar Council has suspended their Sanads for ever. Mr. Bhatt has also brought to our notice the decision of the disciplinary committee of the Central Bar Council in respect of complaint filed against Mr. Khambholja and the Bar Council of India had cancelled the Sanads of advocate Khambholja accordingly. Against the decision of the disciplinary committee of the Central Bar Council of India against Mr. Khambholja, Mr. Khambholja has taken the matter by preferring appeal before the Supreme Court and the Appeal filed by Shri Khambholja was also dismissed by the Supreme Court and confirmed the order of the Disciplinary Committee suspending the Sanad permanently of Shri Khambholja. According to Mr. Bhatt any complaint being received by the Bar Council of Gujarat, the said complaint is being examined by the disciplinary committee and the action is being taken on the basis of the complaint against the advocate. Mr. Bhatt has also brought to our notice the latest position in respect of the complaint received against advocate by which as the said complaint could not be concluded within one year as prescribed under the Act and Rules, such complaints are being transferred for consideration before the Disciplinary Committee of the Bar Council of India and a detail is furnished about the proceedings pending against those advocates, which are being considered by the disciplinary committee of the Bar Council of India by which a notice of intimation is given to the advocates against whom the complaint is filed.

19. Mr. S.N.Shelat, learned Advocate General, has spared time considering the request made by us and who in turn has also highlighted about certain decisions of the Apex Court as well as the provisions made under the Cr.P.C. and suggested that while deciding this public interest litigation what directions the court can give to avoid further repetition of such type of incident of issuing warrants against the citizens. Mr. Shelat has also highlighted the provisions of Section 195 and Section 340 of the Cr.P.C. and also the effect of order by which the Senior Officer of the CID (Crime) was appointed to submit report and further that on the basis of the inquiry conducted by the officer a charge sheet was filed against the accused persons, who are involved in the offence registered vide C.R.No.1/95 and highlighted the provisions of Section 195 and Section 340 of the Cr.P.C., where the charge sheet is filed against the accused of C.R.No.1/95 on the complaint being filed by Manhar Galani and the record and proceedings of Criminal Cases filed by different persons against Manhar Galani and his family, which are lying before this court and the police has filed charge sheet before the Special Court, Vadodara.

20. As found from the reports submitted from time to time it is very clear that in respect of complaint registered vide C.R.No.1/95, the investigating officer has filed charge sheet against the accused persons in the court of the learned Special Judge, Vadodara and the investigation of the said case is still under progress. As per the investigation carried out by the officers of C.R.No.1/95, the said investigation was in respect of complaint filed by Manhar Galani against the accused persons, who had filed false complaints in different courts in Gujarat and the investigation revealed in the form of material suggest that a false complaint has been filed against Manhar Galani and his family members.

21. Mr. Pardiwala, learned advocate, in turn has assisted us by taking us through the relevant record including the steps taken by High Court on the administrative side to see that such incident is not repeated in future and also the High Court on administrative side taken departmental action against the Judicial Officers, who are involved and, namely, Shri Thakar, learned Judicial Magistrate, who was at the relevant time functioning as Judicial Magistrate at Dakor. He has also brought to our notice by producing papers to show that on the administrative side, the High Court has taken departmental action against Shri Thakar and in a departmental inquiry conducted against Shri Thakar he was found guilty and he was dismissed from service. The decision taken against Shri Thakar dismissing him from service was also challenged by Shri Thakar by filing writ petition before the High Court and the petition filed by Shri Thakar was dismissed by the learned single Judge on 23.1.2002 on judicial side.

22. When we are considering this petition after 10 years of fling petition in the year 1994 where public interest litigation was moved by a practicing advocate for seeking direction on the basis of shocking and disturbing incident reported in leading news papers with regard to the scandal of arret warrants issued by the Judicial Magistrate at Dakor for which the petitioner has prayed that immediate necessary steps be taken to book such culprits involved in such scandal as well as to take steps against the Judicial Officers, who are involved in such scandal. On going through the news paper cuttings attached with the petition, it is highlighted that few advocates at Dakor by filing bogus criminal case had obtained arrest warrants with a view to blackmail the person against whom arrest warrants are issued and also to harass the public figures by getting such arrest warrants issued against high dignitaries, namely, Home Minister of Maharashtra State and the Acting Chief Justice of Bombay High Court and leading Journalists and members of the Legislature. It is reported in the news papers that full-fledged racket is going on in obtaining arrest warrants inasmuch as bogus complaints are being filed by some practicing advocates in Dakor through some fictitious person as complainant. In such scandal there are involvement of police persons as well as involvement of staff of the court.

23. As the practicing advocates are involved in such scandal it is the case of the petitioner that respondent No. 3 - Bar Council of Gujarat up till now has ignored this incident or had remained silent spectator and has not taken any step whatsoever against those advocates, who are the master brain behind this scandal. It also revealed that the State of Gujarat also appears to be a silent spectator to the incident when the police persons are also involved in the scandal as reported in news paper in getting warrants duly served. As found from the petition, the State of Gujarat respondent No. 1 being a party, it is also required to give proper direction by this court immediately and also to initiate official proceedings against the police personnel who are getting such illegal gratification. While referring to the provisions of Article 215 of the Constitution of India, it is the case of the petitioner that persons involved in such scandal are also required to be dealt with strictly by this court in exercise of powers under Article 215 of the Constitution of India or by invoking provisions of Contempt of Courts Act for doing perjury. He has also referred to the provisions of Chapter X of the I.P.C. and the provisions of Section 177 of the I.P.C. for providing punishment to persons whoever furnished the false information who knows or reason to believe that the information furnished is false. He has also referred to the provisions of Sections 181 and 182 of the IPC. In the news paper report annexed to the petition, namely, Gujarat Samachar dated 8.12.94, the news reflected in respect of the non bailable warrants issued in Dakor and on the bold letter it is highlighted that it costs for getting one warrant Rs. 6000/-. This news is from Mumbai through reporter. In the said news report, there is a reference of reporter Shri Mahesh Mahatre, who reported that in the court of the learned Judicial Magistrate, First Class at Dakor by paying Rs. 6500/ he obtained warrants against Home Minister of Maharashtra Shri Padamsingh Dajirao Patil, Shri V.N. Gadgil and a sitting Judge of Mumbai High Court Shri M.L.Pendse and M.L.A. Shri Keshavrao Dhondge and Shri Arun Azad and Shri Sabir Shaikh and Madhav Gadkari, journalist. It is further found in the said report that the news item was published in daily "Mumbai Shakal" that Shri Mahesh Mahatre told that he received the information of the family of Galani residing at Ullasnagar against whom in different courts of Gujarat 8 false complaints are being filed and from that court, the court had issued non bailable warrants against Shri Galani and his family members. As there was some dispute in business transaction such false cases are filed against the family of Manohar Galani and Mahesh Mahatre had accordingly met some person, who are residing in Ullasnagar and Shri Mahesh Mahatre has shown his desire that he is also interested to obtain against one person such non bailable warrants and on enquiry he gathered the name of one Shri K.K., who is known for that purpose, who by filing such complaint in other States gives such non bailable warrants. Shri K.K. is residing in Ullasnagar. The report also further shows that there is one person named Ramani in Vadodara, who is also by filing such false complaints in court obtains the warrants. Shri Mahesh Mahatre had accordingly made visit to Vadodara and visited the office of Shri Ramani. However, he could not meet Mr. Ramani and associate of Ramani had explained to him about his travelling in Baroda District. On enquiry with the said person Mr. Mahesh Mahatre was told that his master is taking up such work for Rs. 25,000/- and not less a Paise and accordingly Mr. Mahesh Mahatre had visited some towns in Vadodara and Kheda Districts. However, as he was not successful, he reached in Dakor on 24th November. He approached the advocate. He settled the payment for filing complaint and for getting non bailable warrant. He was also told that for obtaining warrants he is charging Rs. 10,000/-and if Rs. 10,000/is considered to be high amount, then he can obtain the order of summons by paying Rs. 2000/-only. He accordingly approached Dakor court with the help of advocate and the order of warrant is obtained against the high dignitaries. It is, therefore, clear that so far as filing of false complaint by taking help of advocate from Dakor is concerned, it is Mr. Manohar Galani with the help of Shri Mahesh Mahatre, the press reporter, who in turn had filed false complaint against the high dignitaries. Therefore, as per the report published in the news paper for which public interest litigation was filed, it is Mr. Manohar Galani through Mahesh Mahatre, who is the press reporter, who has contacted the advocate at Vadodara and other places for filing false complaint to get the warrants against the accused and through advocate Shri Khambholja a criminal complaint being criminal case No. 1063/94 is filed through complainant Manjulaben Shankarbhai Parmar, residing at Dungda Bhagod, Taluka Thasra against the high dignitaries, namely, Home Minister of Maharashtra Shri Padamsingh Dajirao Patil, Shri V.N. Gadgil and a siting Judge of Mumbai High Court Shri M.L. Pendse and M.L.A. Shri Keshavrao Dhondge and Shri Arun Azad and Shri Sabir Shaikh and Madhav Gadkari, journalist, all are residing in Maharashtra. The complaint of Manjulaben was for the offences punishable under Sections 363, 506(2), 114 of the I.P.C. Etc.

24. As the record and proceedings of the said case is with us, we have perused the record of the case. This complaint of Manjulaben is a typed complaint. Date 24 is added with ink and with blue ink Manjula Parmar is written in Gujarati and the right hand thumb impression of Manjulaben is found. The complaint is dated 24.11.94. The learned Judicial Magistrate, Dakor has recorded the verification statement of Manjulaben Parmar and the verification suggest about what she has stated in her complaint and at the end of the verification there is right hand thumb impression of Manjulaben and in Gujarati it is written right hand thumb impression of Manjulaben, which was recorded before the Judicial Magistrate by which he has put his signature and below the said verification, the learned Judicial Magistrate has passed order which reads as under:-

"The complaint to register and admit. The bailable warrant against the accused for the offence under Sections 363, 506, 214 be issued for Rs. 1000/- on paying the process fees." Dt:24.11.94 and on the right hand side there is a signature of the Judicial Magistrate.

25. In Special Civil Application the Secretary of Bar Council - respondent No. 3 has filed additional further affidavit dated 29.8.2002 by highlighting about the further development, which has taken place after he had filed first affidavit on 13.1.95. As per this affidavit he has highlighted about the meeting of the Executive Committee of the Bar Council of Gujarat held on 18.12.94 and the Resolution was passed in its meeting on 22.12.94 and considering the material placed before the general body of the Bar council, it was resolved by the general body that there is reason to believe that advocate Shri Miteshchandra Manilal Khambholja of Dakor and Shri Deepak Miteshchandra Khambholja of Dakor were prima facie guilty of professional misconduct and prima facie a case for reference was made out and that the matter may be taken by way of suo motu complaint against the two advocates and their cases be referred to the Disciplinary Committee of Bar Council of India. Pursuance to the said resolution, the matter was suo motu referred to Disciplinary Committee No. 7 for detailed inquiry under Section 35 of the Advocates Act, 1961 and the said inquiry was not completed by the said Disciplinary Committee within one year and as per the provisions of Section 36 of the Advocates Act, the Disciplinary Case No. 10/94 stood transferred to the Bar Council of India. After the said case was transferred to Bar Council of India, the said case was re-numbered as Bar Council of India Transfer Case No. 18/96 and the Disciplinary Committee of the central Bar Council of India has as per judgment and order dated 30.6.99 struck off the names of the two advocates against whom the disciplinary inquiry was conducted from the State Roll, namely, the Disciplinary Committee has in term recorded finding that the charge Nos. 1 and 2 are proved and the names of Shri Miteshchandra Manilal Khambholja of Dakor and Shri Deepak Miteshchandra Khambholja of Dakor are removed from the Roll of the Advocates maintained by the Bar Council of Gujarat for ever and they would not be entitled to practice before any court, authority or person through out India and the cost of Rs. 20,000/- were imposed on the Advocates to be paid by them to the Bar Council of India within two months. As found that during inquiry the Disciplinary committee had also observed in its judgment that enough material is found on the record which indicate involvement of other advocates, who are involved and a suo motu action is also ordered to be held against those advocates. Names of those advocates were also referred to by the Disciplinary Committee of the Central Bar council and this order in paragraphs 51 and 52 of the order of the Disciplinary Committee is reflected in the affidavit of Shri Vyas, the Secretary of the Bar Council of Gujarat. The advocates, who are involved, against whom the suo motu inquiry is already initiated by the Bar Council of India, those advocates are advocates Shri Vinod Verma, Narendra Mehta, both are from Dakor, Shri Gopal Ramani advocate from Vadodara, Ashok N. Advani, advocate from Maharashtra residing in Ullasnagar, Mr. Purohit advocate from Borsad, Gujarat, Mr. Mirja advocate from Borsad, Gujarat and Ramesh Geol advocate from Dakor, Gujarat. The judgment and order of the Disciplinary Committee of the Bar Council of India dated 30.6.99 in B.C.I. Transfer Case No. 18/96 is a reported decision in Indian Bar Review, Volume XXVI (3 and 4) 1999 on page 175. Against the advocates Mr. M.M.Khambholja and Deepak M. Khambholja the suo motu complaints were initiated and as per the Scheme of Bar Council Act as the disciplinary committee could not complete the hearing of the said case, ultimately, the case was transferred to Central Bar Council of India to its Disciplinary Committee. Cases were also registered against seven advocates being BCI Transfer Case Nos. 146 to 151 of 1999 and BCI Transfer Case No. 160/99. Those suo motu cases, which were registered as back as in 1999, are pending before the concerned Disciplinary Committee of the Bar Council of India. We asked Mr. Girish Bhatt, learned advocate appearing for the Bar Council of Gujarat, to find out the status of those cases, which are pending since 1999. Mr. Bhatt had accordingly on inquiry with the Bar Council of India brought to our notice that the Disciplinary Committee of the Bar Council of India had recently issued registered Post A.D. notices to the advocates, against whom the suo motu inquiry is being conducted by the Disciplinary Committee of the Bar Council of India and the Assistant Registrar of the Disciplinary Committee, Bar Council of India, New Delhi had intimated under his notice dated 24.8.2004 the concerned advocates that the cases being BCI Transfer Case Nos. 146 to 151 of 1999 and BCI Transfer Case No. 160/99 are posted for framing issues, evidence of the parties and further proceedings on Saturday i.e. on 25.9.2004 at 11.0 A.M. and may be continued on Sunday on 26.9.2004 at the premises of the Bar Council of Gujarat, situated opposite High Court Building, Sola, Ahmedabad and copy of such notice is also received by the Secretary of the Bar Council of Gujarat on 31.8.2004 and he has also tendered such notices for our perusal. Therefore, it is very clear that in respect of the registration of cases against Mr. Khambholja and his son, both were practicing advocates at Dakor and the Disciplinary Committee of the Bar council of India had suspended the Sanads of both the advocates permanently and against other names of the advocates found during inquiry, suo motu proceedings is already initiated in 1999 and now the Disciplinary Committee of the Bar Council of India is contemplating to consider those cases in near future. One of the reliefs sought for by the petitioner in this public interest litigation is against advocates, who are involved by adopting such tactics by filing false complaints and obtaining orders from the court even against innocent persons by issuance of non bailable warrants and in view of the fact that now the suo motu inquiry is being conducted by the Bar Council of India against those advocates, nothing is to be done now. It is true that as highlighted by the Secretary of the Bar Council of Gujarat while forwarding the details about the Suo motu complaints registered against Shri Khambholja and his son, who are practicing advocates at Dakor and as per the Scheme of the Advocates Act, 1961 the Disciplinary Committee could not complete the said case within one year and the case automatically stood transferred to the Bar Council of India. As per the Scheme of the Advocates Act and the Rules framed thereunder any person can file complaint against the advocate and such complaint being filed is to be dealt with under the Act by the Bar Council and once the complaint is received the same is required to be registered against the accused advocate concerned. The function of the Bar council is to see that in the administration of justice, the advocates, who are also one of the limbs are also responsible not only to his client but equally first to the court. As observed earlier Manhar Galani with Shri Matre, Press Reporter from Mumbai, were responsible for initiating proceedings by way of filing complaint against high dignitaries of State of Maharashtra by approaching advocate Shri Khambholja, knowing full well that a false and concocted complaint is to be filed for which the advocate Khambholja has to make arrangement to find out any complainant and as the complaint is field against the high dignitaries before the Judicial Magistrate for taking order regarding issuance of warrants and the purpose of initiating such type of proceedings is only to highlight in public that such orders regarding warrants are available by paying money. It is further found from the police report that even the warrants issued against high dignitaries were not executed. It is the case of Manhar Galani that 10 different cases were filed in different courts against him as well as his family members with the help of the advocates. Manhar Galani also could have approached the Bar Council of Gujarat by filing complaint under the Advocates Act and if such complaint is filed under the Scheme of the Advocates Act, the Bar Council has to take action against the advocates against whom the complaint is filed.

26. In this public interest litigation the petitioner has prayed by directing the appropriate authority to initiate proceedings against the advocates, who are involved in the scandal of warrant, and they may be dealt with by initiating criminal prosecution and/or disciplinary proceedings under the Advocates Act, 1961 read with Bar Council of Gujarat Rules. Mr. Bhatt, learned advocate appearing for the Bar Council of Gujarat has brought to our notice certain provisions of the Advocates Act, 1961. Section 2 deals with the definitions. Clause (d) of Section 2 defines Bar Council. Bar Council means a Bar Council constituted under this Act and clause (e) of Section 2 is in respect of the definition of Bar Council of India. In Chapter II Section 3 contemplates State Bar Councils. Bar Council of Gujarat under the Advocates Act is a State Bar Council of Gujarat and Bar Council of India is defined under Section 4 of the Advocates Act. Section 6 deals with the functions of the State Bar Council and relevant clause in the present matter is sub-clause (c) of Section 6. Sub-clause (c) of Section 6 contemplates how to entertain and determine cases of misconduct against advocates on its roll. So against the advocates, who are registered in the Roll of the State Bar Council, under the Scheme of the Act, if they are involved in a misconduct, the State Bar council can entertain and determine the cases of misconduct against the advocates. Section 7 deals with the function of the Bar Council of India and even sub-clause (b) of Section 7 deals with the standards of professional conduct and etiquette for advocates and clause (c) of Section 7 lays down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council. Section 9 deals with the Disciplinary Committee by which a Bar Council shall constitute one or more Disciplinary Committees, each of which shall consist of three persons of whom two shall be person elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualification specified in the proviso to sub-section (2) of Section 3 and who are not members of the Council, and the senior most advocate amongst the members of a Disciplinary Committee shall be the Chairman. Chapter V is under the heading of conduct of Advocates. Section 35 provides for punishment of advocates for misconduct. Section 35 reads as under:- "35. Punishment of advocates for misconduct.(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee."

It is very clear, therefore, as per the Scheme of the Act the Bar Council can initiate disciplinary proceedings against the advocate against whom a complaint is received. Equally if the Bar council has also reason to believe that any advocate on its roll has been guilty of professional misconduct, the Bar Council shall refer the case for disposal of such complaint before the Disciplinary Committee. So under the Scheme of the Advocates Act, any person, can move the State Bar council against the advocate by filing complaint and Bar Council can also initiate suo motu proceedings if it is found that he has reason to believe that any advocate on its roll has been guilty of professional or other misconduct and to refer the said case before the Disciplinary Committee of the Bar Council.

27. In light of the contentions raised in the public interest petition, the court has issued warrants against the high dignitaries and as per the press report that such warrants are available by making payment of Rs. 6000/- and odd. Judiciary is also one of the important limbs functioning and looking to the needs of the people to get justice, the Civil and Criminal Courts are established in the State. So the civil and criminal cases are being tried in the courts; initially in the lower court. In court of law, people approach the court for justice and once the matter has reached to the court, the duty of the court is to decide the case in accordance with law. The Judicial Officer is the person, who has to decide the cases on considering the evidence led before him and in light of the settled legal position by applying the said case law and to decide the same in accordance with law. Advocate has also to play role in court in disposing of the matter. The advocate has also to maintain his ethic in conducting the case and the advocate is also responsible for any misconduct. The advocate is first officer of the court and it is his duty to see that during the court proceedings the matter be proceeded in accordance with law and ultimately the court has to give justice. The advocate's profession is considered to be a noble profession and persons who are attached with the said profession had duty cast on them, that the court matters, which are pending in the court of law, are disposed off in accordance with law and accordingly the advocate is also responsible to the court. As the advocates profession is a noble profession and the citizens, who had to approach the court, had to approach the concerned advocate and at that time the advocate has to ascertain the true facts from his client and to give proper advice and the cases are to be filed which are to be dealt with by the court in accordance with law. No advocate would try to file false case, when he came to know from his client that he wants to teach the opponent by taking him to the court proceedings by hook or crook. In such type of cases, it is the duty of the advocate to advise his client and he should not be a party by filing complaint in the court of law, though he know from the beginning that filing of such complaint is admittedly a false complaint/case. As per the ethics, advocate is also supposed to while accepting the case from his client take proper instructions from his client and he is required to defend his client by not adopting such mal practice.

28. As found from the news paper report attached with the petition, it indicates that advocates are also involved for which suo motu complaints were registered and as found that the advocate Shri Khambholja and his son practicing at Dakor court had adopted such tactic, knowing fully well that the complaint being filed is not true one and is false. Both the advocates Shri Khambholja and his son in a disciplinary proceedings through Bar Council of India, their Sanads were suspended for ever and the Bar Council of India has also initiated suo motu proceedings against the other advocates, who are found to be involved in such manner by which the disciplinary committee of the Bar Council of India is considering their cases.

29. Mr. Bhatt, learned advocate, appearing for the Bar Council has placed reliance upon the decision of the Supreme Court in the matter of Supreme Court Bar Association v. Union of India, reported in AIR 1998 SC 1895. In the said decision the Supreme Court has also considered the earlier decision in the matter of Union Carbide Corporation v. Union of India, AIR 1992 SC 248. The Supreme Court has accordingly in paragraphs 37 and 51 observed which reads as under:- "37. The suspension of an Advocate from practise and his removal from he State roll of advocates are both punishments specifically provided for under the Advocates Act, 1961, for proven "professional misconduct" of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of Contempt of Court. There is no cause of professional misconduct, properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of 'professional misconduct' is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder."

"51. In Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 : (AIR 1992 SC 248) a Constitution Bench of this Court dealt with the ambit and scope of the powers of this Court under Article 142 of the Constitution. The Bench considered the observations of the majority in Prem Chand Garg v. Excise Commr., U.P., 1963 Supp (1) SCC 885 : (AIR 1963 SC 996) as well as the observations made in A.R.Antulay v. R.S.Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531) and observed (at pp.278-79 of AIR) :

It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the Apex Court under Article 142(1) is unsound and erroneous. In both Garg's as well as Antulay's case the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 in so far as quashing of criminal proceedings are concerned is not exhausted by Sections 320 or 321 or 482 Cr.P.C. or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso-facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers limited in some appropriate way - is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney-General, referring to Garg's case, said that limitation on the powers under Article 142 arising from "inconsistency with express statutory provisions of substantive law" must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a cause or matter, the apex court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public-policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise."

The Supreme Court has also considered Rules 3 and 4 of Chapter I Part VII and Rules 5, 6, 7 and 8 with regard to the manner of service of notice and summoning of the witnesses and appearance of the parties before the disciplinary committee. In paragraph 69 the Supreme court has accordingly observed, which reads as under:- "69. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May, 1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Council of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body."

30. The complete Advocates Act is provided by which the Bar Council of India and the State Bar Council also deals with the complaint against the advocate and the disciplinary committee of the Bar council decides such complaint by which even the Sanad issued by the Bar Council in favour of the advocate is suspended for a long period and/or permanently. As observed earlier, the role of advocate in administration of justice is considered to be an important role and the advocate is equally responsible to the court first in any matter, which is to be dealt with by the court. Mr. Bhatt has also cited another decision in the matter of Bar Council of India v. High Court of Kerala, reported in AIR 2004 SC 2227. On going through the said judgment we are tempted to some of the observations which the Supreme Court has made in the said case and accordingly in paragraph 35 the Supreme Court has observed, which reads as under:- "35. Although in a case of professional misconduct, this Court cannot punish an advocate in exercise of its jurisdiction under Article 129 of the Constitution of India which can be imposed on a finding of professional misconduct recorded in the manner prescribed under the Advocates Act and the rules framed thereunder but as has been noticed in the Supreme Court Bar Association (supra); professional misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt case."

In paragraph 45 the Supreme Court has observed as under:-

"45. Bar Council of India is not a citizen entitling it to raise the question of validity of the Rules on the touchstone of Article 19(1)(g) of the Constitution. It has no such fundamental right. No person aggrieved who is a citizen of India is before us. The contention of Mr. Reddy that R.11 of the Rules is violative of Article 19(1)(g) of Constitution of India is, thus, misplaced. We cannot permit the Bar Council to raise the said contention."

31. In light of the contentions raised by Mr. Bhatt on behalf of Bar Council and when it is the case of Manhar Galani that false and concocted cases were filed against him as well as his family members in different courts of Gujarat through advocates, it was not proper on the part of Manhar Galani or Shri Matre, who have approached the advocate Khambholja at Dakor by filing false and concocted criminal case against the high dignitaries of Maharashtra State by which the Magistrate has passed order regarding issuance of warrants. The action of Manhar Galani and Shri Matre by taking such method - in our view is not proper and in our view Manhar Galani could have approached by filing complaint against the advocates before the Bar Council of Gujarat as the complaints are filed against him and his family members in Gujarat and surely the Bar Council could have taken cognizance of such complaint received against advocates.

32. It is also to be noted that in a public interest litigation filed by Shri Padiwal he has annexed the news paper cuttings by which it was highlighted that by issuing warrants by Magistrate at Dakor against high dignitaries, including the Home Minister of Maharashtra State and Acting Chief Justice of Bombay High Court, the warrants are purchased by making payment. In the news paper report it is also found the manner in which Shri Matre had approached the advocates in Gujarat and ultimately through advocate Khambholja from Dakor such false complaint is being filed against such high dignitaries for which it is the advocate, who has to manage to find out the complainant for which a complaint is to be presented before the Magistrate and Manhar Galani and Matre is only required to pay money for the same to Shri Khambholja as Manhar Galani and his family members had suffered and was harassed by filing such false and frivolous complaints in different courts in Gujarat and the manner in which he and his family members were harassed by dragging to the various courts in Gujarat and because of such false complaint being filed against Manhar Galani and his family members, he was arrested and detained in jail. As found from the news paper cuttings that Shri Matre had visited Gujarat in some of the Taluka places in Vadodara and Kheda Districts and approached advocates to obtain warrant on a fictitious complaint being filed in court of law and ultimately a criminal case in Dakor is filed through advocate Khambholja and by filing such fictitious complaint warrants against high dignitaries were obtained from the Judicial Magistrate at Dakor. As observed earlier and as per the reply affidavit filed on behalf of Bar Council of Gujarat, the Bar Council has initiated disciplinary proceedings against advocate Khambholja and ultimately the disciplinary committee of the Bar Council of India had cancelled the licence/Sanad of both the advocates permanently and the said decision of the disciplinary committee of the Bar Council of India is also confirmed by the Apex Court as the Appeal filed by Khambholja and other before the Apex Court was dismissed.

33. The action taken by the Bar Council of India against the remaining advocates, who are involved, we were told that the disciplinary committee of the Bar council of India has now fixed the hearing of those cases on 25/26 September, 2004.

34. As found from the report submitted by Senior Officer of CID that even as found from the investigation/inquiry there are some more advocates are involved in adopting such practice and it is equally necessary for us that the Bar Council shall initiate steps against those advocates, who are found involved in such practice by filing false complaints against Manhar Galani and his family members as by now Manhar Galani has not filed any complaint against such advocates before the Bar Council of Gujarat.

35. As transpired from the submissions made by Mr. Bhatt, who in turn has placed reliance upon the Rules framed by Bar Council of India, Para VII deals with the disciplinary proceedings and review and Chapter I deals with the complaint against advocate and procedure to be followed by the disciplinary committee of the State Bar Council and Bar Council of India. Rule 30A provides that the disciplinary committee of the Bar Council of India shall exercise powers exercised by the Civil Court or court of Appeal under the C.P.C. Therefore, it is very clear that the matters were to be dealt with under the Advocates Act by the Bar Council and the Committee has power to exercise powers exercised by the Civil Court. In Chapter II framed under Section 49(1)(c) of the Act read with the proviso thereto, dealt with standards of professional conduct and etiquette and the said Chapter in Section 1 deals with the duty to the court. Some of the Rules under this heading requires consideration. Rule 16 reads as under:- "An advocate appears for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."

Rule 17 reads as under:-

"An Advocate shall not, directly or indirectly commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act."

Rule 18 reads as under:-

"An Advocate shall not, at any time, be a party to fomenting of litigation."

Rule 19 reads as under:-

"An advocate shall not act on the instructions of any person other than his client or his authorized agent."

36. Advocates profession is a noble profession and it is the duty of the advocate to maintain ethics while practicing as advocate. The role of an advocate is also very important role in judiciary and it can be said to be one side of the coin. The advocate is the first officer of the court and then he is the advocate of his client. As transpired from the report submitted by officers of CID (Crime), we noticed that some of the advocates are involved while initiating proceedings in court of law against Manhar Galani and his family members and before initiation of such proceedings they knew that they are initiating proceedings by filing criminal case against Manhar Galani and his family members, which is a false and concocted one and by filing such complaint before the court they knew that they have filed complaint against the accused persons against whom the court has to take steps in accordance with law. We may also observe that by filing such false and frivolous proceedings in court of law, there is a tremendous increase of work in courts. Every day new cases are being filed and it is not possible for the court to deal with the old cases. By filing such false cases in court of law through advocate, it is necessary that the Bar Council of State as well as Bar Council of India will be vigilant in taking steps against advocates if it is brought to their notice under the provisions of the Advocates Act.

37. When we are considering this petition as a public interest litigation filed as back as in 1994 and inspite of order passed by the Apex Court restoring this Special Civil Application on an Appeal filed by Manhar Galani as back as in 1999 and as found from the record that Bar Council of India has initiated suo motu action against two advocates from Dakor and the disciplinary committee of the Bar Council of India had suspended permanently the Sanads/licences of two advocate, who are practising advocates at Dakor and further suo motu proceedings were also initiated against other seven advocates as back as in 1999. Inspite of disciplinary proceedings initiated against advocates as back as in 1999 there was no progress made by the Bar Council of India in respect of those disciplinary cases and it is brought to our notice during hearing that the disciplinary committee of Bar Council of India has issued notice calling upon those advocates for hearing, which is scheduled to be held on 25/26 September, 2004. We have to observe that though the suo motu proceedings were initiated as back as in 1999 there was inaction on the part of the Bar Council of India by not completing the hearing of those cases immediately thereafter and the same are pending for consideration upto 2004. The Bar Council of India is not party in this proceedings and accordingly we observe and hope that the suo motu proceedings initiated against those advocates as back as in 1999 be completed as early as possible and the disciplinary committee of the Bar Council shall examine each case as expeditiously as possible and decide the same in accordance with law.

38. It is in this petition we have to consider the submission made by Mr. Raju that in view of the report submitted by the officer of the CID (Crime) and once all the record and proceedings of 10 cases is before this court, this court has to give direction on the basis of the report submitted and as revealed from the report that all the cases which were filed against Manhar Galani and his family members are false and concocted, this court is required to pass order of dismissing all the criminal cases and all the criminal cases be quashed and set aside. According to Mr. Raju that when the court has directed the officer of the CID (Crime) to submit report in respect of the news paper items published in a petition filed by Shri Padiwal as public interest litigation and when on the basis of the direction given by the court a report which was submitted by the officer on recording statements of the witnesses as well as collecting material which shows that these complaints filed in different courts in Gujarat against Manhar Galani and his family members are concocted, for which police had filed charge sheet in a complaint filed by Manhar Galani vide C.R.No.1/95 and once the charge sheet is filed, all the complaints filed in different courts against Manhar Galani and his family members be quashed and set aside as per the report of an independent officer of the CID appointed by this court.

39. As observed earlier, that Manohar Galani had during the pendency of this petition moved the High Court in this petition for joining him as party respondent and the application filed by Manohar Galani was dealt with by the Division Bench, which we have already referred to where the Division Bench had rejected the request for joining party respondent in this petition as per order dated 16.7.2003. However, the Division Bench has also observed in its order that the court has issued notice to Manohar Galani on 2.9.2002 to appear and support his representation dated 11.7.2002. The name of the learned counsel to be shown on the board as appearing for Manohar Galani in this petition whenever the petition is listed on board. The application for joining party filed by Manohar Galani being Civil Application No. 8781 of 2002 is already disposed off by the Division Bench. As observed by us, in the above term, the relief for joining party respondent in this petition was rejected. Mr. Raju has further informed us that the said order of the Division Bench was challenged before the Apex Court and the Apex court has also issued notice in a petition filed by Manohar Galani. However, he informed us that till the said matter is pending before the Apex Court for considering the notice issued to the parties. Till we concluded the hearing of the arguments, the matter in which the Supreme Court has issued the notice is still not disposed off and accordingly it is not possible for us to accept the submission of Mr. Raju that his client be joined as respondent in this proceedings.

40. As we have already proceeded with the hearing of this public interest petition, which is pending even after 1999 when the Supreme Court has restored for hearing of this Special Civil Application, we think it fit to proceed with the hearing and accordingly as observed earlier, we have heard at length Mr. Raju. Equally we have heard Mr. Anandjiwala, learned advocate, who had also filed a similar application for joining party respondent in this pending public interest litigation.

41. It is also brought to our notice by Mr. Raju that Shri Manohar Galani had as back as in 1994 moved the High Court of Bombay by way of filing criminal writ petition by highlighting that because of the involvement of one Shri Kishore K.Keshwani in Gujarat, the bogus complaints were filed against him and his family members. He has also annexed in the said petition the criminal complaint filed against Manohar Galani and his family members at Dakor, Makarpura, Baroda and Bajwa in Gujarat. All the complaints were filed at the behest of Mr. Keshwani. In the said petition, the petitioner Manohar Galani had prayed for seeking direction that the court may direct to CBI or any other investigating agency to investigate with regard to the allegations regarding smuggling activities, arms trading and illegal chitfund operations and other illegal activities carried out by Mr. Kishore K.Keshwani, Mr. Kamal Sunderdas Bhatija, Mr. Thakur Bahrani, Mr. Dunichand Veromal Makhija, Mr. Sudershan Satramdas Motwani, Mr. Bharat Daulatram Bhojwani and others as well as in respect of the various bogus criminal cases filed against Manohar Galani and his family members in Gujarat and other States, which have been engineered by Mr. Keshwani, Bharat Daulatram Bhojwani, Kamal Sunderdas Bhatija and others. Ultimately on inquiry from Mr. Raju about the said petition filed by Manohar Galani, we are told that the court had issued rule earlier without giving any relief. However, subsequently the said petition was dismissed for default by the Division Bench, which fact has come to know recently by Mr. Galani. However, according to Mr. Raju that in view of the order passed in this public interest litigation filed by late Shri Padiwal, Mr. Galani has given his complaint before the officers of CID (Crime) and the said complaint is registered vide C.R.No.1/95 and the same is being investigated and the police has filed charge sheet against the accused.

42. Mr. Raju had accordingly vehemently urged that as found from the reports submitted from time to time by the officer, who is an independent officer, who in turn has collected material to show that all the complaints being filed against Manohar Galani and his family are false and for filing such complaints some of the advocates, so called complainant and other persons from the court staff and the police were involved and are very much interested, that those cases filed by the complainant through advocate against Manohar Galani and his family is nothing but to harass them. Mr. Raju has also contended before us that objective test of this public interest litigation by which the court has only to see that filing of such complaint in such manner against the innocent persons is to be deprecated and harassing of such innocent persons by adopting such method with the help of some client and advocate, those persons are responsible in achieving and obtaining such order are to be dealt with strictly. Even if the advocates are involved in such scandal they are also to be dealt with in accordance with law as well as under the Advocates Act.

43. Mr. Raju has contented that it is an admitted fact that whatever criminal complaint filed against the high dignitaries of Maharashtra State at the instance of Manohar Galani through reporter Shri Mahesh Mahatre is in fact a false case and even the warrants issued by that court are not meant to have effective service on those dignitaries. Such complaint was filed to bring this fact that a false case has been registered against Shri Manohar Galani and his family in different courts in Gujarat.

44. Mr. Raju has accordingly submitted that so far as criminal case filed through advocate Khambholja and his son through complainant Manjulaben Parmar for the offences under Sections 363, 504(2) etc. of the I.P.C. i.e. Criminal Case No. 1063/94 is deserves to be quashed and set aside.

45. We have also called for the record and proceedings from the court of the learned Chief Judicial Magistrate, Nadiad i.e. Criminal Case No. 1063/94 filed by complainant Manjulaben Parmar against high dignitaries of Maharashtra filed in the court of the learned JMFC, Dakor. After transferring the said criminal case in the court of the learned Chief Judicial Magistrate, the number of the case is renumbered as Criminal Misc. Application No. 336/94. Record of the said case was transmitted by the learned Chief Judicial Magistrate, Kheda at Nadiad under letter dated 12.8.2004 to the Registry of this court. As found from the said record and proceedings of Criminal Case No. 1063/94 from the court of the learned JMFC, Dakor alongwith Criminal Misc. Application No. 336/94 with Rojnama with the order passed by the learned Judicial Magistrate, Dakor dated 24.11.94 the complainant's case was registered and issued bailable warrants against accused for the offence under Sections 363, 506 and 114 of the I.P.C. by making returnable date of the said warrant on 20.12.94 and bailable warrant against the accused for sum of Rs. 1000/- was issued on paying process fees. Manjulaben Parmar, aged 34 years, dealing with business in fruit resides at Dungda Bhagod at Dakor Taluka Thasra. The complaint filed by her is typed one and she has put her thumb impression of right hand on the said complaint. She was examined by the learned Magistrate on the very day and such verification of the complaint is written with blue ink and again at the end of the verification on the left hand side there is a right hand thumb impression of Manjulaben and the said verification was recorded before the learned Magistrate and the learned Magistrate has put his signature with the designation and below the same he had passed the above order and signed the same by putting his designation and the date.

46. As found from the record and proceedings forwarded by the learned Incharge District Judge, Kheda dated 12.8.2004 with the order passed by the learned Magistrate on the said criminal case, the same is taken in suo motu revision by the learned Sessions Judge, Nadiad. The learned Sessions Judge, Nadiad has accordingly while initiating suo motu action registered Criminal Revision Application No. 197/94 and as per order dated 7.12.94, the learned Sessions Judge has observed with regard to Criminal Case No. 1063/94 of the court of the learned JMFC that it was called for, for examination for the purpose of satisfying as to the correctness, legality and propriety of the order passed by the learned Magistrate on 24.11.94 below the said complaint by issuing bailable warrants against the accused and the learned Sessions Judge has in term observed that the matter is to be taken in revision in suo motu. The learned Sessions Judge has accordingly proceeded to examine the order passed by the learned Judicial Magistrate on the complaint being filed by Manjulaben Parmar. On going through the said order with the record and proceedings of that case, it is found that the learned Magistrate has failed to exercise his judicial duty and, therefore, the order passed is neither correct nor legal nor proper and accordingly the final order was passed, which reads as under:-

"The Revision Application is allowed. The order passed by the learned Judicial Magistrate, First Class, Dakor, on 24.11.94, below the complaint Exh.1 in Criminal Case No. 1063 of 1994 registering the complaint and issuing bailable warrants against the accused is set aside.

The Trial Court is directed to call for the warrants back, if at all issued, by the speediest means available and the complaint is remanded to the trial Court for proceeding with according to law."

47. On going through the said order passed by the learned Sessions Judge in Suo Motu Revision Application dated 7.12.1994 it is found that in term the learned Sessions Judge has on examining the record and proceedings of the criminal case observed that the Judicial Magistrate is empowered to issue process but it cannot be said that he is empowered to issue the same blindly without properly applying his mind to the fact that the allegations made how far stands to the test of judicial scrutiny. The learned Sessions Judge has also observed that this is more required in the present days where tendency of filing vexatious and frivolous allegations is increased for one or the other purpose. On going through the complaint, the learned Sessions Judge has in term found that even reading the complaint and the allegations and even the verification, it appears that the concerned Magistrate has failed to exercise his above mentioned judicial duty, and, therefore, the order passed is neither correct nor legal nor proper and, therefore, the same is required to be set aside.

48. We have perused the record and proceedings received from the court of the learned Chief Judicial Magistrate, Nadiad. As found, the learned Sessions Judge has already taken the order of the learned Magistrate in Suo Motu Revision and the learned Sessions Judge has on examining the order of the learned Magistrate set aside the said order of issuing process as well as issuing bailable warrants against the accused. It is unfortunate that even while giving status of the said case it is shown that the said case is still pending and the Registrar of the court of the Chief Judicial Magistrate, Nadiad had issued notice to the complainant Manjulaben and accordingly complainant was informed that the complainant in person or through her advocate shall remain present before the court on 11/2/2002 at 10.30 failing which the court shall pass any order in your complaint dated 24.11.94. So though the learned Sessions Judge has set aside the order of the learned Magistrate dated 24.11.94, till the court below is taking steps further by issuing notice to the complainant. In fact the criminal case filed by Manjulaben against high dignitaries for issuing process and for issuance of bailable warrants is set aside as back as on 7.12.94 and when the learned Sessions Judge has while taking the order of the learned Magistrate in Suo motu revision called for the record and proceedings from the trial court and on examining the record and proceedings with the order, has come to the conclusion that the concerned Magistrate has failed to exercise his judicial duty and the said order deserves to be set aside. The record and proceedings is accordingly sent back to the trial court only for the purpose as directed by the learned Sessions Judge that if the warrants are issued, the said warrants be called back by the speediest means available. It seems that the order passed by the learned Sessions Judge is interpreted by the learned Magistrate as if the complaint filed is remanded to the trial court for proceeding with according to law. With this background, even the order passed by the learned Magistrate in Criminal Case No. 1063/94 is quashed and set aside by the learned Sessions Judge as back as on 7.12.94. As found, even as per the report of the CID (Crime) submitted in this proceedings and even as per the submission made by Mr. Raju that the said complaint is filed by taking help of reporter Mahesh Mahatre from Maharashtra and Shri Mahesh Mahatre had while approaching the concerned advocate, who in turn has arranged for the complaint to be filed against the high dignitaries of the Maharashtra by which criminal case was instituted which was registered being Criminal Case No. 1063/94. It is accordingly very clear that even the said criminal case filed is concocted case. However, the said Criminal Case was filed at the instance of Manohar Galani and Mahesh Mahatre to highlight about such false criminal complaint being filed against Shri Manohar Galani and his family in different courts of Gujarat and even bailable warrants were issued against those high dignitaries, which was also not meant for execution. We have observed that in We have observed that in respect of the order passed by the learned Sessions Judge in Suo Motu Revision no steps were take by the learned trial Court immediately to call back the warrants issued which was sent for execution through police agency in Mumbai, State of Maharashtra and till date on perusing the record such original warrants are also not found in the record. Accordingly, considering this background, the Criminal Case No. 1063/94 transferred to the court of the learned Chief Judicial Magistrate, Nadiad filed by Manjulaben Parmar against high dignitaries is already quashed and set aside and accordingly the said case is not to be treated as pending case before the concerned Magistrate and the Court of the learned Chief Judicial Magistrate to make proper entry in the Register. It is equally necessary that at the time when we are required to give direction to the concerned courts in Gujarat, we shall deal with hereafter by which all courts in Gujarat is required to take proper steps in respect of the cases registered in their courts by which the Magistrate is required to examine such cases by passing appropriate orders even by sending the complaint under the provisions of Section 156(3) of the Cr.P.C. or the Magistrate himself can proceed under Section 202 etc. of the Cr.P.C.

49. At this juncture it is necessary for us to examine the different cases. As observed earlier, 10 different cases were filed by different complainants against Mr. Manohar Galani and his family members and others at different courts in Gujarat. In Criminal Case No. 1099/93 the complaint is filed by Gemsinh Shankarsinh Thakore in the court of the learned JMFC, Dakor against Shri Manohar Galani and Pushpa Galani sister of Manohar Galani for the offences under Sections 420 and 114 of the I.P.C. The complaint is dated 22.12.93. In the said complaint as per the order passed by the learned Magistrate, both the accused were arrested and released on bail. We have seen the record and proceedings and the said criminal case is pending. It is the case of the complainant that the accused person on the pretext to invest the amounts in share and due to close relation with the accused at least prior to about one year and nine months came at the residence of the complainant at Sevalia and taken a sum of Rs. 31,000/-, which they have used and spend and thereby it is the case of the complainant that the accused had committed offence of cheating, namely, for the offences under Section 420 read with Section 114 of the IPC and it is found that the complainant was examined on 22.12.93 and the Magistrate has passed order of issuing process under Sections 420 and 114 of the IPC and as the accused are residing in other State, the learned Magistrate has issued bailable warrants against each of the accused for a sum of Rs. 1000/-. The said criminal case was filed through advocate Shri Bharat Purohit and Shri Purohit has filed Vakalatnama in the said case which is at Exh.2. We tried to peruse the Rojnama of the said case as the hand writing on the said Rojnama is not legible. It is equally necessary that in this public interest litigation some more direction is also necessary to the trial court about the accuracy of recording of the Rojnama with neat and clean hand writing, which is legible and also to be maintained and written on the day itself when the matter was placed before the court. Rojnama is the document which is considered to be a mirror of the entire proceedings to reflect how the case had proceeded when the matter was notified before the court and what proceedings were initiated by the court, which is to be reflected in the Rojnama and it also gives the information about the next date when the court has on the previous day adjourned the matter. In a criminal matter once it is instituted on private complaint and when the Magistrate has taken cognizance by issuing process, the Magistrate concerned before taking cognizance is equally required to go through the said complaint and find out whether any offence is indicated for which he is required to decide as to what order in the said complaint is deserves to be passed. As found from the Rojnama of the said case criminal complaint was filed on 22.12.93 and even in the Rojnama which was written was not accurate. We have seen the Rojnama upto 5.12.94. On that day in the last column of the Rojnama two dates were mentioned as the adjourned date. First is 19.2.95 and the second is 10.2.95. As seen from the Rojnama dated 12.7.2001 it is recorded that the original record and proceedings is come back and the court has passed order for issuance of notice to the parties and the returnable date was shown as 21.9.2001. Thereafter, on all the adjourned dates upto 10.12.2002 there is a printed rubber stamp applied by filling blank in the rubber stamp by putting some illegible writing and the same is signed by the learned Magistrate. Such practice deserves to be deprecated. The Magistrate before whom the case is notified he must see that the Rojnama is written down on the very day which reflect about the progress made by him in the said case and by putting next adjourned date. We know that the court is heavily burdened as the lower court has to take many matter on every day. But according to us that the Magistrate or the Civil Judge is required to function as a judicial officer and though he had many matters to be dealt with on the day when the matters were notified, but at the same time it is equally necessary for him to apply his mind in each matter and pass appropriate orders which is legible and equally it is to be reflected in the Rojnama on the very day in the same manner. Though we know that the Magistrate has to deal with many matters, which were notified before him, but at the same time that is not the reason for which the Magistrate or his staff is required to act in a fashion which is not proper. While maintaining the Rojnama, the concerned Magistrate/court shall in legible hand writing by himself or by dictating to his concerned clerk, who is also equally required to see that he may take down the order of the court, to be reflected in the Rojnama in a legible hand writing and by putting date. Once the complaint is filed it is equally the duty of the learned Magistrate to go through the same and he has to apply his mind whether the complaint is to be sent for investigation under Section 156(3) of the Cr.P.C. or to proceed further under Section 202 of the Cr.P.C. When he has decided to proceed with the complaint under Section 202 of the Cr.P.C. the verification of the statement of the complainant/witness is to be recorded by the Magistrate and the same is also to be reflected in a legible hand writing. We are told by the counsel appearing in the matter that now a days it is the practice due to heavy burden attached to each trial court that the verification of the complaint is being done normally by the clerk attached to the court and it is only after the verification is recorded, the papers are placed before the concerned Magistrate for his signature. In our view this practice is not healthy practice. The Magistrate is the person, who is required to apply his mind even on the complaint being filed and when he has to record the verification statement of the complainant or the witness it should be recorded by him in the manner which we have indicated that it should be in legible hand writing and the Magistrate is to accordingly thereafter pass order in accordance with law that too in legible hand writing. As after the order is passed, the papers of the said case will go to the department for execution of the order.

50. As found from the papers of this Special Civil Application at page 210 an affidavit of Shri Chauhan, Deputy Superintendent of Police, CID (Crime) dated 6.12.99 is filed. The said affidavit is filed by Shri Chauhan in Criminal Misc. Application No. 7056/99, which was filed by Tarachand Lalvani and others in respect of the offences registered at CID (Crime), Vadodara vide C.R.No.1/95, which was filed by Shri Manohar Galani and the accused in the said case Tarachand and others had approached this court by filing the said Criminal Misc.Application and the said Criminal Misc. Application was allowed by the learned single Judge and the complaint filed against said Tarachand Lalvani and others was quashed and set aside, which ultimately the Supreme Court has set aside the said order of the learned single Judge. In the affidavit of Shri Chauhan, the Investigating Officer, has in term highlighted about the material gathered by the Investigating Officer and has furnished the details that they have gathered sufficient material to show that warrants were issued against Manohar Galani and the family members on the basis of the complaint filed by fictitious and bogus persons in connivance with Tarachand and others and they were instrumental in securing non bailable warrants from the various courts in the State of Gujarat. He has highlighted the 10 cases including Criminal Case No. 1099/93.

51. As found from the record of the Special Civil Application that in view of the order passed by the Division Bench on 20.12.94 the Director General of Police was directed to inquire in respect of the seriousness of the allegations as found in the news paper report by directing him to inquire with the competent senior officer of the CID (Crime) Branch with the direction to submit report to this court as early as possible and the matter was adjourned to 16.1.95. Pursuant to the direction of this court, inquiry was entrusted to Mr. S.G. Chaudhary, Police Inspector, CID (Crime), Vadodara City and he has reported vide his letter dated 13.1.95 addressed to the Registrar of this court. Subject matter was in respect of the investigation of Dakor Police Station C.R.No.211/94 for the offences under Sections 465, 468, etc. of the IPC. As per his first report that Mr. Manohar Galani and Mahesh Mahatre from Mumbai contacted Mr. Deepak Khambholja, Mitesh Khambholja and Vinod Verma, advocates, who are practicing at Dakor court. The advocates had prepared a false complaint and the said complaint was filed by complainant Manjulaben Shankarbhai Parmar, residing at Dakor. On presenting the complaint before the court, bailable warrants for Rs. 1000/- have been obtained against the accused of the said complaint i.e. against 7 persons, who are staying at Mumbai. After the warrants were obtained against 7 persons from Mumbai, the news was published in the local news papers at Mumbai as well as in Gujarat. On the basis of such publication, the public interest litigation was filed by Mr. Padiwal. In respect of the said complaint, the investigating officer Shri Chaudhary has taken investigation and contacted Amrutben Shanabhai Waghri, who is residing in village Agarwa Tahsil Thasra, who is doing business of fruit at Dakor. Said Amrutben has filed case of maintenance of her daughter Kokila and divorce in the court at Dakor in 1992 through advocate Shri N.J.Mehta, practicing in Dakor. That case for maintenance and divorce was disposed off. The said Amrutben was introduced by advocate Mr. Mehta with advocate Deepak Khambholja and Vinod Verma. She was informed by the advocate that she has to put her thumb impression in a matter for her daughter for maintenance and divorce. For that purpose, Amrutben was brought at Dakor court. The advocates Shri Khambholja and Vinod Verma had contacted the concerned clerk of the court, that lady has to file complaint. While filing complaint, the name of Amrutben was changed and the complainant's name was shown to be the name of Manjulaben Parmar, who is residing at Dungda Bhagod in Dakor. As per the report of the investigating officer that, that lady Amrutben was never wanted to lodge the complaint. However, in the complaint her thumb impression was taken in the name of Manjulaben. The investigation revealed that lady Amrutben was illiterate and she was not aware about the contents of the complaint and her thumb impression was obtained on the said complaint with the understanding that her advocate Mehta is conducting the case of her daughter and she is required to put her thumb impression on the assurance given to her. The concerned clerk of the court after reading the complaint had written verification of the complainant by mentioning the fact recorded in the complaint and the complaint was handed over to advocate Shri Deepak Khambholja to present the said complaint before the learned Magistrate. Mr. Thakar was at the relevant time working as a Judicial Magistrate, First Class at Dakor. Mr. Thakar without any inquiry and ascertaining from the complainant, orally ordered to issue summons and returned the complaint to advocate Shri Deepak Khambholja and in turn Mr. Deepak Khambholja informed the clerk that the court had issued order to issue summons. On the said complaint being filed by advocate Shri Deepak Khambholja for the execution of the order, the said complaint is to be processed in the department and the copies of the complaint, which were required to be issued to the opponents, were not attached in the said complaint. One Mr. Prajapati, the clerk working in that court after court time, had went to the office of Mr. Deepak Khambholja to collect the copies. We have gone through the said report. It transpires that Mr. Prajapati when he went to the office of Khambholja there were two persons sitting in his office and Mr. Prajapati has stated that, that man was Mr. Galani. Mr. Prajapati demanded the copies of the complaint from Deepak Khambholja for issuance of summons. At that time Mr. Galani told Mr. Deepak Khambholja that they have decided for issuance of warrants and he had paid for obtaining order of warrants not for obtaining order of summons. This discussion has taken place when Mr. Prajapati was present. During this discussion, Mr. Mitesh Khambholja, father of Deepak Khambholja, also came in his office. Mr. Deepak Khambholja told his father regarding issuance of warrants. Mr. Mitesh Khambholja had contacted Mr. Thakar, the learned Magistrate on telephone at his residence and informed him about issuance of warrants in the case and the advocate had told Mr. Galani and other person sitting in his office that they should meet him on the next day at 11 A.M. in the court and the Magistrate had agreed to issue the warrants. Mr. Chaudhary has accordingly in his report highlighted about the complaint being filed by Amrutben, who has put her thumb impression in the complaint, though in fact the complaint was filed by Manjulaben Parmar and the manner in which after recording the verification on the said complaint by Shri Prajapati, the concerned clerk, the papers of complaint were handed over to advocate Shri Khambholja who in turn has presented the said complaint before the Magistrate Shri Thakar and the oral order was passed for issuance of summons and the papers were returned to Mr. Khambholja. In fact, no orders were passed on the complaint, though the verification of complainant Manjulaben was recorded by the concerned clerk Shri Prajapati and even no copies of the complaint were attached for execution of the order of the learned Magistrate by the office. It is only when Mr. Prajapati has contacted after office hours at the office of Mr. Deepak Khambholja for demanding copies, at that time Mr. Galani and one person were sitting there and Mr. Mitesh Khambholja had contacted the learned Magistrate on telephone at his residence as the payment was made by Mr. Galani not in respect of obtaining order of summons but for warrants and after contacting the Magistrate Shri Thakar at his residence Mr. Mitesh Khambholja informed Mr. Galani and other person that they should approach on the next day at 11 A.M. in the court as the Magistrate has agreed to issue warrants against the opponents. It is further found that on the next day i.e. on 25.11.94 the advocate Mr. Mitesh Khambholja came to the court at 11 '0' clock, took the complaint from clerk Shri Prajapati and went to the Magistrate and the Magistrate has ordered for issuing bailable warrants for Rs. 1000/and it is further found that Mr. Prajapati, clerk, has as per oral instructions of the Magistrate got the warrants typed from another clerk and got the signature of the Magistrate and handed over to Mr. Mitesh Khambholja for service of warrants by which Mr. Mitesh Khambholja has also signed in token of receipt of warrants. After receiving the said warrants the advocate Mr. Mitesh Khambholja handed over these warrants to Mr. Galani and Mr. Mahesh Mahatre to be served through Bombay Police and they left for Mumbai. The report further indicates that a xerox copy of the warrants were prepared and the xerox copies of the warrants were given to Police Inspector attached to Azad Maidan Police Station by instructing him that these warrants are not to be executed by serving to the opponents as they have obtained these warrants in order to prove that bogus warrants can be obtained from court at Gujarat.

52. Thus, in respect of the news paper report attached with the petition by which the court has directed the Director General of Police to appoint competent officer for inquiry and Mr. Chaudhary a senior Inspector, was appointed to inquire into this aspect. The report further shows that on the basis of the news paper report one Shri Harishkumar Ishwarlal Sewak residing at Dakor has submitted an Application on 12.12.94 to Dakor Police Station, which was taken as a complaint of Mr. Sewak and the offence was registered at Dakor Police Station on 15.12.94 and the offence was registered vide C.R.No.211/94 for the offense under Sections 120B, 181, 182,205 etc. of the IPC and accordingly though the complaint being C.R.No.211/94 was registered at Dakor Police Station, as per the order passed by the Director General of Police, the said complaint at Dakor was ordered to be handed over to CID (Crime) in view of the fact that Director General has appointed inquiry officer as per the order passed by the High Court and Shri Chaudhary was also appointed as an investigating officer of that complaint. So the independent complaint being C.R.No.211/94 is also at the hands of Mr. Chaudhary for investigation. He has recorded the statement of Amrutben, who in turn has stated that for maintenance of her daughter and divorce, a case was filed through advocate Shri Narendra Mehta alongwith advocate Deepak Khambholja and she has stated that on 24.11.94 these advocates have approached her when she was selling fruit and she was told that the Magistrate has called her as her thumb impression has not been taken. She has also highlighted that these advocates came in autorickshaw as well as on scooter and she was taken in the court premises by Deepak Khambholja and Vinod Verma and she gave her thumb impression on typed paper at 3 places and she was produced before the Magistrate and she was made to stand away from the Magistrate. The Magistrate has conversation with the advocates. However, no inquiry was made to her as well as about the complaint and she was permitted to go. Amrutben was taken by the advocates in the evening on 24.11.94 when she was selling fruit at the court on the pretext that her thumb impression is required in the matter filed by her. It is further found that Amrutben has also sworn affidavit on stamp paper of Rs. 10/- on 6.1.95 before the executive Magistrate, Thasra in which she has stated that the advocate has took her to the court and thumb impression was taken on the complaint being filed by Manjulaben Parmar.

53. Mr. Chaudhary has also recorded the statement of Manohar Galani by which he has stated about the cases registered against him by which the court has issued warrants on the complaint from the courts of Dakor, Padra, Ahmedabad City, Jamkhambalia, Bajwa, Makarpura etc. and all these cases are false. In respect of the complaint filed, the police has arrested him as well as his father, sister, brother in law and brother and they have obtained bail from the court. Mr. Galani has in his statement highlighted that he had not committed any offence. However, due to monetary dispute with one Mr. Kishore Keshwani, known as K.K. in order to harass him and in order to get writing in respect of his residential house, false cases have been filed with the help of advocates, police officers, staff of the court and he and his family members were arrested by obtaining false warrants. Shri Galani has suffered substantial economic loss and they have to go in jail and bogus false cases have been filed in different courts and accordingly Mr. Galani has contacted Mr. Mahesh Mahatre, press reporter of "Mumbai Sakal" and both of them came to Baroda on 24.11.94 and tried to contact Mr. Ramani, advocate. He was not available. While contacting assistant of Mr. Ramani he told that for obtaining false warrants Rs. 25,000/- is required. As this amount of Rs. 25,000/appeared to be high, they came to Dakor and contacted Mr. Khambholja, advocate. They discussed for getting false warrants. Mr. Khambholja told him that he will have to spend Rs. 10,000/- and ultimately it was settled with Deepak Khambholja for Rs. 6500/- and Deepak Khambholja has asked them to contact him in the evening and in turn the complaint of Manjulaben was filed and he has also stated about the order passed by the learned Magistrate by which the concerned clerk of that court had visited the office of advocate Shri Khambholja after office hours and informed him about the order passed by Magistrate of issuance of summons on complaint by which some discussion had taken place by him with advocate Khambholja and Khambholja has contacted on telephone in the evening at the residence of the Magistrate and advocate Shri Khambholja has informed him that the Magistrate has agreed to pass an order of issuing warrants. Manohar Galani has in turn stated about the entire episode by which they have approached the advocate Shri Khambholja at Dakor and how the advocate has managed by filing complaint in court and obtaining orders from the court. Shri Chaudhary has also recorded the statements of advocates Mitesh Khambholja, Deepak Khambholja and Vinod Verma. This fact is also reflected in his report.

54. By the time when he submitted first report dated 13.1.95, he has recorded statements of 11 persons and according to him that prima facie advocate Deepak Khambholja, Mitesh Khambholja, Vinod Verma and Narendra Mehta had conspired and prepared false complaint and prepared false record and the illiterate lady was fraudulently brought to the court by which she had to give her thumb impressions by keeping her in dark and the same were filed and all the accused had abated each other in getting false warrants.

55. Mr. Manohar Galani has filed affidavit in reply in this proceedings sometime in November 2002. This affidavit is filed pursuant to the notice issued to him on 2.9.2002. As we have already discussed that he has also filed application in this proceedings for joining party in the main petition as respondent, which application was rejected by the Division Bench and he was not permitted to be joined as respondent in this public interest litigation. Mr. Galani in his affidavit has highlighted the entire episode and annexed various documents, including the report of the office of the CID by highlighting the list of 10 cases filed in different courts in Gujarat against him and his family members by giving details about the case numbers, the court in which the cases were filed and for the offences for which the said cases were registered. As found from his affidavit that Criminal Case No. 337/94 for the offense under Sections 323, 504 etc. of the I.P.C. was filed against him and other family members in the court of the learned JMFC, Padra as well as Inquiry Case No. 3/94 for the offences under Sections 363, 406 etc. of IPC was filed against Manohar Galani and Dev Galani in the court of the learned JMFC, Jamkhambalia and Criminal Case No. 102/94 for the offence under Sections 406, 420 and 114 of IPC was filed against him and his family members in the court of the learned JMFC, Borsad. All these cases have been dismissed by the concerned learned Magistrate for non prosecution. In his affidavit submission is made that in order to expose the scandal of false complaint being filed and on the basis of which non bailable warrants were issued and in some cases he has obtained help of a local press reporter from Mumbai Shri Mahesh Mahatre and who has exposed the entire scandal by engaging advocate and the advocate has arranged to obtain judicial warrants to be issued by the Magistrate Shri Thakar, learned JMFC at Dakor against 7 dignitaries of Maharashtra for the offences under Sections 363, 354 ,506 and 114 of IPC.

56. In his affidavit he has highlighted about the cases registered against him and his family in different courts. We have also gone through the said affidavit. In the said affidavit, the deponent Shri Galani has prayed for certain reliefs, which reads as under:

"A. Withdraw the further investigation of the above case from CID Baroda alongwith all the case papers, crime reports, documents and statements and entrust the same to the Sr. Officer of CBI, not below the rank of Suptd. of Police, with a direction to carry out thorough investigation of C.R.No.1/1995 and submit appropriate police report to the concerned Court.

B. Fix suitable time limit for the completion of further investigation of I.C.R. No. 1/1995 and direct the CBI to complete the invest of the above case within the said period and submit the police report to the concerned court.

C. Quash the proceedings of false Criminal Cases bearing Nos. 1099/93, pending before JMFC, Dakor Court, C.C. No. M.Case No. 11/94 pending before JMFC, Dabhoi Court, C.C.No.6/94, pending before JMFC, Bajwa Court No. 4, C.C.No.3/94 pending before JMFC, Municipal Court, Baroda, C.C.No.704/94 pending before JMFC, Dabhoi Court, C.C.No.288/94, pending before 18th Court of Ld. Metropolitan Magistrate, Mirzapur, Ahmedabad and Summary Suit No. 67/94 pending before 3rd Joint Civil Judge, Vadodara."

57. We may mention here that after the said affidavit is filed in November 2002, further reports have been submitted by the police, which is part of this petition and we will deal with the said reports at the appropriate stage. So far as complaint of Manohar Galani registered at CID (Crime), Vadodara vide C.R.No.1/95 is concerned, Shri Manohar Galani has in term as per prayer made, which we have referred to earlier, requested that the investigation of the said case be entrusted to CBI of the rank of Superintendent of Police by withdrawing the investigation of the case from the officers from CID (Crime), Vadodara. On the offence being registered on the complaint being filed by Mr. Manohar Galani i.e. C.R.No.1/95 and during investigation the investigating officer has proceeded with the investigation of the said case and collected material that some of the persons are involved as accused. Some of the accused of C.R.No.1/95 had accordingly filed Applications before this Court for quashing the complaint and also for quashing the investigation and the said Misc. Criminal Applications were finally disposed off by the learned single Judge of this court and the said petitions/applications filed by the respective accused were allowed and the complaint and the investigation both were quashed and set aside. These are Applications being Criminal Misc. Application Nos. 5722/94, 751/95, 933/95, 1368/95, 1367/95 with Special Criminal Application Nos. 372/95, 436/95 and 527/95. Alongwith this Criminal Misc. Applications and Special Criminal Applications, this public interest litigation being Special Civil Application No. 13258/94 were heard by the learned single Judge and as per the decision in the matter of Miteshchandra Manilal v. State of Gujarat, reported in 1997(3) GLR 2501, has allowed all the applications filed by the respective accused and according to the learned single Judge in paragraph 20, the learned single Judge has observed, which reads as under:- "20. In the case, in form of these petitions, it is clearly the position that by filing different complaints, pursuant to an alleged conspiracy, by different persons impersonating as persons other than who they are, processes were got issued and the different alleged offences in the said two complaints have thus been committed. It is obvious that the different alleged offences are the result of one and the same transaction or in course of the same transaction. As per the aforesaid different judicial pronouncements, there might either be, overlapping or it will be so interconnected or interwoven that they cannot be separated. Obviously, therefore, neither the police station at Dakor nor the C.I.D. Crime, Baroda could have taken cognisance of the complaint, as done by them, because that action will be hit by Section 195 Cr.P.C. read with Section 340 thereof."

58. On the complaint being filed by Manhar Galani registered vide C.R.No.1/95 before the CID (Crime), Vadodara against the accused persons, who are involved in fling false and frivolous complaints in different courts of Gujarat through advocates filed against Manhar Galani and his family members, those accused had initiated proceedings before this court for seeking relief of quashing the complaint etc. and all these applications filed by those accused were allowed by the learned single Judge as per judgment and order dated 14.8.1997. The learned single Judge has also disposed off this public interest litigation and ultimately the decision of the learned single Judge was quashed and set aside by the Apex court. Inspite of that, no further investigation was carried out further by the CID (Crime). From 14.8.1997 till the Supreme Court has passed the order setting aside the High Court's decision passed on 17.11.1999 unfortunately there was no progress in respect of the investigation of the complaint being C.R.No.1/95 and accordingly during hearing by way of affidavit filed on behalf of officers and reports were submitted from time to time, which we have taken on record. It is also to be noted that while initiating proceedings for quashing by the respondents accused of C.R.No.1/95, they have not joined Manhar Galani as party respondent and it is only when Manhar Galani had come to know about the decision of the High court by which the High Court has quashed the complaint filed by him against those accused persons, Manhar Galani has filed appeal before the Apex Court and the Supreme Court has accordingly allowed the Appeal filed by Manhar Galani and the decision of quashing the complaint by the High Court was quashed and set aside. As found from the affidavit filed by Manhar Galani in November 2002, it is highlighted that against the order passed by the learned single Judge on 14.8.1997 he had filed Special Leave Petition being S.L.P. (Criminal) No. 3623-3628/97 before the Supreme Court of India with permission to file the Special Leave Petition as he was not party to the proceedings before the High Court and accordingly Shri Manohar Galani has highlighted and produced certain documents, including the report of the Officer of the C.I.D. (Crime) and accordingly prayer was made for handing over the case to C.B.I.

59. After the decision rendered by Apex Court while quashing and setting aside the judgment and order of High Court quashing the complaint being C.R.No.1/95 and as found from the further inquiry conducted by the office of the CID that the police had filed charge sheet against some of the accused before the Special Court, Vadodara. It is further found from the report that some of the accused are still absconding and further that the investigation is still in progress. As found from the record and the affidavit filed by Manhar Galani that during the pendency of the appeal filed by Galani before the Apex Court as the record and proceedings of those cases in different courts were lying in respective courts, the Supreme Court had as per order dated 27.4.1998 passed the following order:-

"Desti service is permitted in respect of unserved respondents. The Registrar of the Gujarat High Court is directed to ensure that the records of following cases be kept in the safe custody of the Registry.

Sr.No. Case No. Court where pending.

1. Criminal Case No. 1099/93 Dakor

2. Criminal Case No. 102/94 Borsad

3. Criminal Case No. 11/94 Dabhoi

4. Criminal Case No. 704/94 Dabhoi

5. Criminal Case No. 337/94 Padra

6. Criminal Case No. 3/94 Jamkhambalia

7. Criminal Case No. 288/94 Court No. 18,

Metropolitan

Magistrate's

Court, Ahmedabad.

8. Criminal Case No. 3/94 JMFC, Municipal

Court, Vadodara

9. Enquiry Case No. 6/94 JMFC, Court No. 4,

Bajwa, Vadodara.

10. Summary Special Civil 3rd Jt. Civil

Suit No. 67/94. Judge, (SD), Vadodara.

60. By virtue of the order of the Apex court, all the record and proceedings of 10 cases are with the safe custody of this court. By virtue of the further investigation being carried out after the Supreme Court has set aside the order of the learned single Judge, the CID (Crime) has in its report furnished details about the investigation and material collected by him in those cases. We have perused the reports of the officers and those reports indicate about the investigation revealed for a particular case. We have already indicated that Criminal Misc. Application No. 102/94, Criminal Misc. Application No. 337/94 and Inquiry Case No. 3/94 were dismissed by the learned Magistrate for non prosecution. However, the report indicate that the respective criminal cases were filed either through the complainant or through the advocate. The investigation revealed that even those cases, which were filed against Mr. Manohar Galani, are false cases. The Supreme Court has in term as back as on 17.11.99 set aside the order of the learned single Judge and accordingly this public interest litigation is restored to file and as observed by the Supreme court by which the Supreme court has directed us that this public interest litigation should be considered by High Court on merits on the basis of the reports submitted to the court. Accordingly it is incumbent upon us to consider the reports submitted by the Officers of the CID (Crime) in this proceedings. By the time the officers of the CID (Crime) had submitted reports dated 13.1.95, 31.1.95, 14.2.95, 28.2.95, 21.3.95 and 27.3.95. In a pending SLP before the Apex Court filed by Mr. Manohar Galani an affidavit is filed by Mr. Goswami, who was the investigating officer about the investigation being carried out. Before the Apex Court in an Appeal filed by Mr. Galani an affidavit is filed by Addl. Director General of Police one Mr. P.C.Pande on 11.11.98.

61. As the complaint of Mr. Galani being C.R.No.1/95 was restored as per order of the Apex Court, the report in these proceedings is filed in respect of the inquiry conducted by Detective Police Inspector, CID (Crime) dated 25.2.2004 and the last report about further investigation being carried out is dated 3.8.2004. As directed by the Apex Court that this Court has also while deciding this public interest litigation to consider the reports of the CID submitted in this proceedings. We have already dealt with the first report submitted by Mr. Chaudhary dated 13.1.1995 and accordingly we have also perused the second report dated 31.1.95. The said report is Exh."C" to this petition at page 101. As found from the said report, as per the order of the court, the inquiry was to be conducted in respect of bogus warrants issued as found in the news paper reports and the police has recorded the statement of Manohar Galani, who was the person, who suffered at the instance of some of the persons by filing false complaints and so far as warrants in Dakor case are concerned, as found from the statement of Manohar Galani that it is he who, with the help of Mahesh Mahatre, the reporter from Mumbai, had approached Mr. Khambholja, the advocate practicing at Dakor and a complaint as arranged by the advocate was filed and the order was obtained on the said complaint by which the warrants were issued against those dignitaries. Accordingly police had called Mr. Manohar Galani and a detailed complaint was recorded and a separate offence was registered against Mr. Kishore Keshwani and 17 other accused persons in respect of the cases filed in different courts against Manohar Galani and his family members. All these complaints filed in different courts in Gujarat against Manohar Galani and his family members were with a view to cause harassment to him and to extort cash and certain pieces of evidence which Mr. Galani was said to be in possession. In respect of the case registered vide C.R.No.211/94 at Dakor Police Station, the investigating officer has sent the original documents for examination to the finger print expert and at the time when the officer has submitted report, the report from the finger print expert was awaited. Efforts were made to find out Smt. Manjulaben, who has filed complaint as per the addresses given in the complaint. The inquiry revealed that no person of that name ever existed. The Investigating Officer has also collected the evidence to suggest that Mr. Manohar Galani and Mahesh Mahatre had stayed at Dakor during the night and the warrants issued by the court were collected by them. The Police could not contact Mr. Mahsh Mahatre till the time that report was submitted. The report further shows that the Investigating Officer has moved the High Court for seeking necessary direction to issue to various courts in Gujarat where the cases are pending. The report further shows that the investigation revealed that many more accused are involved and it will take long time to probe with the said investigation and submitted that further report of the progress will be submitted in due course.

62. Next report submitted by the officer dated 14.2.95 is at Exh."D". In the said report the progress of the investigation was highlighted in respect of offence registered at Dakor Police Station vide C.R.No.211/94 and the investigating officer has recorded the statement of Mahesh Mahatre, a press reporter of Mumbai, who in turn has given detailed statement. Mahesh Mahatre has corroborated the version given by Mr. Manohar Galani. The Investigating Officer has also recorded the statements of the police officers attached to Azad Maidan Police Station, Mumbai. The investigating officer has also recovered the photo copies of the warrants, which were given by Mahesh Mahatre and Manohar Galani. The police while recording the statements of the said officers at Mumbai, also confirmed that Mahesh Mahatre while handing over the warrants had made it clear that these warrants were not intend to be executed and the warrants, which were obtained, is to expose the scandal. The advocates, who are responsible in filing the complaint of Manjulaben before the court of the learned JMFC, Dakor, were arrested by the police on 8.2.95. The report also further shows that after the arrest of those advocates, the police has sought for remand of advocate Shri Deepak Khambholja and advocate Vinod Verma for one day and the report from the finger print expert, who examined the complaint filed by Manjulaben, was obtained. The report also further indicates about the registration of the offence on the complaint being filed by Manohar Galani registered vide C.R.No.1/95. The report further indicates that the investigation is in progress.

63. The further report of the police officer is dated 28.2.95, which is at Exh."E". On perusing the same, the said report is in brief by highlighting about the progress made in the investigation. As per the report of the officer, in most of the complaints filed against Mr. Galani and his family members, addresses of the complainants given in the complaint are completely false and bogus. None of the complainant ever existed at the addresses given by them in the complaint and the main executors of the criminal conspiracy are absconding and as per the information of the officer, those conspirators are hiding themselves in Ullasnagar in Maharashtra. The vehicle which was used was bearing Vehicle No.GJ-6-T-9536, which was used by the P.S.I. Shri G.S.Patel of Ahmedabad for carrying Mr. Galani and his family members from Ullasnagar to Padra and then to Ahmedabad and it shows that the said vehicle is owned by one of the conspirators in the crime. We may indicate at this juncture that so far as G.S.Patel, Police Sub Inspector, is concerned, who was also involved in the offence, was arrested subsequently in this year in the month of about April 2004. The report further shows that the investigation is in progress.

64. The further report dated 21.3.95 is at Exh."F", which we have perused, by which the investigating officer has highlighted the further report on the investigation being carried out and the details about the investigation in respect of case registered at Dakor Police Station being C.R.No.211/94. In the said report, the reference is made in respect of the statement recorded by investigating officer of Amrutben and Mr. Mahesh Mahatre and the statement of Amrutben confirmed that advocates Deepak Khambholja and Narendra Mehta, had approached her and she had to give her thumb impression on certain papers while filing complaint in the pretext that the same is pertaining to her daughter and divorce case. The further investigation being carried out in respect of offence registered vide C.R.No.1/95 is also highlighted by which officer has recorded statements of the witnesses. The report also indicates about the criminal case, which was filed by Tarachand Lalvani in the court of the learned JMFC, Dabhoi being Criminal Case No. 11/94 against Mr. Manohar Galani and others for the various offences under the I.P.C. and the said complaint of Tarachand was sent for investigation under Section 156(3) of the Cr.P.C. in favour of Dabhoi Railway Police. The Officer has also recorded the statement of wife of Tarachand i.e. Smt. Sumanben, the statements of Shri Raju and Sunder, the brothers of the complainant, and the statement of the Secretary of the Panchayat of village Kothara and the statement of the Sarpanch of the village Kothara were recorded. As found from the statement of Smt. Suman, she has categorically asserted that no such incident of dacoity had taken place as alleged by Tarachand. In her statement, name of one Mr. Bharat Bhojwani is disclosed and the said Bharat Bhojwani had helped her husband Tarachand for the marriage of his sister and to oblige Shri Bharat Bhojwani, Tarachand has signed bogus complaint. Smt. Suman has in term stated that no person from Ullasnagar had visited their residence at Dabhoi on 14.1.94. She has highlighted about their financial condition and the manner in which they are living and her husband has never possessed an golden chain. It is further found from her statement that they never lived in village Kothara, which is the address found in the complaint filed by her husband. The statements of the Sarpanch and Secretary of village Kothara also indicate the same thing. Smt. Suman has also denied the fact mentioned in the complaint by her husband against Mr. Manohar Galani and his family members for the offence under Section 138 of the Negotiable Instruments Act and further that her husband Tarachand is taken away by Shri Bharat Bhojwani to an unknown place and she is staying with her parents. The report further indicates about the criminal case filed against Manohar Galani and family members by one Shri Tehlram Kishinmal Ramani being Criminal Case No. 337/94 in the court of learned JMFC, Padra for the offences under Sections 323, 504 etc. of the I.P.C. The investigation revealed that Shri Tehlram has admitted that at the instance of Shri Bharat Bhojwani he was taken to Padra court and he was made to sign on the said bogus complaint to get non bailable warrant against Galani and his family. The said Shri Tehlram has also filed affidavit by which he has given detailed account. The statements were also recorded of the employees of complainant Shri Tehlram and their statements also corroborate the say of complainant Shri Tehlram. The report also indicates about the detailed investigation in respect of Criminal Case No. 102/94 filed by Harish Kumar, in the court of the learned JMFC, Borsad against Manohar Galani and his family members for the offences under Sections 420, 406 etc. of the IPC and the investigation revealed that the said complaint filed is found to be bogus and fake. The statements of the advocates, namely, Shri Purohit and Shri Mirza were recorded. From the statements of these advocates it is found that they have admitted that to oblige few advocates practicing in Dakor, namely, Shri Ramesh Goel, complaint is filed and while filing this complaint Shri Bharat Bhojwani had brought a person with him by which the said person was to become complainant in the said case. In respect of the inquiry case No. 6/94 filed in the court of the learned JMFC, Court No. 4, Bajwa, Vadodara for the offences punishable under Sections 420, 406 etc. of the I.P.C. by Chandu Dayaldas, investigation revealed that no person named Chandu Dayaldas ever stayed at the address given in the complaint. The report further suggests that the said Chandu Dayaldas is shown to be one of the eye witnesses in a case filed against Manohar Galani in the court at Padra and Dabhoi. Shri Bharat Bhojwani is absconding as found from the report. The Officer has also recorded the statement of advocate, who has filed complaint and as found from the statement, that Bharat Bhojwani had come to him with a person with a typed complaint, which he was asked to lodge in the court and accordingly he had filed the complaint. The advocate was not knowing the complainant or his whereabouts. The investigation further revealed in respect of Criminal Case No. 3/94 filed in the court of learned JMFC, Municipal Court, Vadodara against Mr. Manohar Galani by complainant Shri Ashok Inderman Vatiyani of Makarpura for the offences under Sections 406, 420 etc. of the I.P.C. that no such person could be found at the address given in the complaint. Criminal Case No. 1099/93 is filed in the court of learned JMFC, Dakor against Mr. Galani and his family members for the offence punishable under Sections 420 and 114 of IPC. As per the report, the complainant could not be traced at the address given in the said complaint. In respect of the report pertaining to Inquiry Case No. 3/94 filed in the court of learned JMFC, Jamkhambalia for the offences under Sections 363, 406 etc. of the I.P.C. through the complainant Smt. Bhagwaniben Sajandas, the inquiry revealed that the complainant is not traceable at the address given and the address given is also incomplete. As per the report, the officer has also proceeded to trace her. However, as per the report, the complaint filed by her being Inquiry Case No. 3/94 is dismissed by the learned Magistrate due to default of the complainant. The Criminal Case No. 288/94 filed at Mirzapur Court No. 18, Ahmedabad and Summary Special Suit No. 67/94 filed at 3rd Civil Judge (SD), Vadodara, the complainant/plaintiff in the said cases are not traceable as per the address furnished in the complaint as well as in the plaint as the addresses given are incomplete. The investigation officer has recorded various statements of other witnesses, including the statement of Shri Patel, P.S.I., which shows that Shri Bharat Bhojwani took him in March 1994 in Matador Van from Ahmedabad to Ullasnagar for the arrest of Galani family and at the residence of Galani alongwith them Shri Kishore Keswani, Kamal Bhathija, Dunichand Makhija, Sudershan Motwani and Bharat Bhojwani had accompanied. The report further shows that Mr. Galani and his family members were arrested and brought from Ullasnagar to Padra and as found from the case papers of Padra Court, the date shown has been over written and corrected by someone, who is not working in the court. The report further indicates that a similar type of complaint was filed against Smt. Leena Mehta of Vadodara working as a Professor in M.S. University, Vadodara, by which she and her family members were also in the similar way harassed by filing false criminal case in the court at Ullasnagar at the instance of advocate Shri Ashok Advani and the said complaint was filed at the instance of builder, whom Leena had a dispute regarding payment and Mr. Gopal Ramani was the advocate of the said builder.

65. A detailed report dated 27.3.95 is submitted by P.G.J.Nampoothiri, Addl. D.G. of Police (Crime), Ahmedabad even by referring to gist of relevant documents. This report is at Exh."G" to the petition, which we have gone through while hearing the counsel appearing in the matter and the reference of the said report is made in the petition filed before the Apex Court in a proceeding filed by Mr. Manohar Galani i.e. in the affidavit of Shri Chaudhary, Police Inspector dated 9.1.98. This affidavit was filed by Mr. Chaudhary in reply to the petition filed by respondent No. 3 by which he has highlighted about the order passed by this court dated 20.12.94 in this petition and the report submitted by him as well as the report submitted by Addl. Director General of Police dated 27.3.95. As found from the said affidavit, according to deponent Shri Chaudhary that at that time during investigation he has recorded the statements of more than 17 witnesses and on the basis of such statements, he has prepared the report and further that all the reports that have been submitted by him were scrutinised by Addl.D.G. of Police, CID (Crime) Shri Nampoothiri.

66. In the affidavit filed by Mr. Manohar Galani in this proceedings, as observed earlier, he has annexed the documents, namely, the order passed by the High court on 20.12.94 and the copy of the report submitted on various dates by the CID and the copies of the criminal cases filed in different courts against him and his family members. As found, as per the index attached to the affidavit of Shri Galani from pages 46 onwards to 255.

67. At this juncture it is necessary for us to note that Mr. P.C.Pande, CID (Crime), has filed his affidavit in the proceedings filed by Mr. Manohar Galani before the Apex Court being Special Leave Petition (Criminal) Nos. 3623-3628 of 1997. The said affidavit was filed by him pursuant to the order passed by the Apex court on 17.8.98 in respect of highlighting the steps taken to serve notice to Shri Kanubhai Somabhai residing at Thakkar Bapanagar, Ahmedabad, who is respondent No. 1 in SLP (Criminal) No. 3627/97 and the said Kanubhai Somabhai had moved this High Court by filing Special Criminal Application No. 527/95. The learned single Judge of this Court has on considering all the petitions and the applications filed by different accused of C.R.No.1/95 allowed the same and the order passed by the learned single Judge in group of petitions was challenged by Manohar Galani before the Apex Court. In compliance with the direction given by the Apex Court, it is found that the address given by Shri Kanubhai Somabhai in the Special Criminal Application is very vague. According to deponent Shri Pande, the locality, namely Thakkar Bapanagar is a large locality and it is not possible to locate any person and hence service of process of respondent No. 1 could not be effected. Shri Pande has further highlighted about the fact as emerging through the report of CID (Crime), who has conducted the investigation in respect of offences registered vide C.R.No.1/95, that it revealed that complainant Kanubhai Somabhai was a fictitious person. The said petition was filed by Shri Kanubhai Somabhai in the High Court through advocate Shri V.S.Shah and as per the statement of advocate Shri Shah, it reveals that he does not recognize Shri Kanubhai Somabhai as the said case was referred to him by advocate Chandravadan B.Joshi, advocate from Dabhoi and as per the instruction of his briefing advocate, he has filed petition of Kanubhai Somabhai in the High Court. The statement of Chandravadan Joshi, advocate, is also recorded and it is revealed that even advocate Shri Joshi is not knowing Kanubhai Somabhai, but according to him that when he was at Metropolitan Court at Ahmedabad one Shri Bharat Dolatram Sindhi (Bhojwani) had met him in the court and he had introduced one person as Kanubhai Somabhai and requested him to file case in his behalf in 18th Court at Mirzapur, Ahmedabad and again the said Shri Bhojwani had approached him for filing of petition in High Court and thereupon advocate Shri Chandravadan Joshi from Dabhoi, District Vadodara, took Shri Bharat Bhojwani to advocate Shri Shah, Gujarat High Court, for filing petition and at that time Bharat Bhojwani was accompanied by one person, who was introduced as Kanubhai Somabhai. On interrogation at the relevant time Bhojwani denied that he know anybody by name Shri Kanubhai Somabhai and he had also denied that he went to High Court with advocate Shri Joshi for filing Misc. Criminal Application. Shri Bhojwani has also admitted during investigation that he is also one of the respondents in the matter before the Supreme Court.

68. Considering these facts, it is very clear that different cases were filed by different persons in different courts in Gujarat against Mr. Manohar Galani and as per the order passed by this court in this petition, the Director General of Police was directed to inquire and submit report by appointing an officer to submit report and pursuant to the inquiry conducted as per the order passed by this court, Shri Manohar Galani, whose complaint was recorded and as per the said complaint, offences was registered being C.R.No.1/95 and as revealed from the investigation of that case that there are many accused involved in filing such false cases in different courts of Gujarat against Mr. Manohar Galani and his family. When the petitions and applications were filed before this court praying for quashing the complaint and further investigation of the said cases, admittedly they have not joined the complainant Shri Manohar Galani and the order passed by the learned single Judge quashing the complaint and investigation is challenged by Manohar Galani before the Apex Court and in the said Special Leave Petition all the petitioners, who had moved this court for quashing the complaint as well as for quashing the investigation, were party respondents and one of the respondent Shri Kanubhai Somabhai has also filed Special Criminal Application No. 527/95. The question arose when the said respondent-opponent was unserved and the Apex Court has directed to take steps by the police authority and as highlighted in the affidavit of Shri Pande on the basis of the investigation being carried out by the officers in respect of C.R.No.1/95, it revealed that the complainant Kanubhai Somabhai was a fictitious person. We have already referred to about the order passed by the Apex Court. The Special Leave Petition filed by Manohar Galani was in term allowed and the order of quashing the complaint and investigation passed by the learned single Judge was set aside.

69. We have considered the report submitted by Mr. Dinesh B. Barvalia, Detective Police Inspector, CID, Crime, Surat (Rural) Unit, who is the investigating officer of the case. This report is dated 25.2.2004, which is running into 21 pages. In the said report, the officer has given details about the investigation being carried out pursuant to the order passed by the High Court and the investigation in respect of offences registered at the the instance of Manohar Galani being offence registered vide C.R.No.1/95. As found from the said report, the investigation of the present case was handed over to him on 30.7.2003. In all about 175 witnesses were examined and he had travelled for more than about 35000 Kms. by road and by train in various places in Gujarat and Maharashtra in respect of the investigation of the case and whatever investigation being carried out he has given full details in respect of the cases registered against Mr. Manohar Galani in different courts in Gujarat. According to the investigating officer that the material gathered during investigation reveal that all the 10 cases filed in different courts against Mr. Manohar Galani and his family are totally false. According to him in the complaint filed by Mr. Manohar Galani vide C.R.No.1/95 against 19 persons in which only 7 accused have been arrested between 30.1.2004 to 8.2.2004 as the steps are being taken by him by taking raids conducted by him in Gujarat and Maharashtra. Out of the 7 arrested accused, 4 accused are policemen and police officers in Gujarat Police. The main accused are still absconding and as per his information they are residing in Ullasnagar and Mumbai and to apprehend them he has also issued letters to the Commissioner of Police, Mumbai, Thane, Maharashtra as well as the Police Authority at Pune requesting them to assist him in the arrest of the absconding accused. Charge in respect of arrested accused persons have already been submitted before the Special Court at Vadodara and as an investigating officer, he has also approached the learned Chief Judicial Magistrate, Vadodara for issuance of warrants under Section 70 of the Cr.P.C. on 16.12.2003. However, as found from the report that as per the oral direction of the learned CJM, the application which he has filed was not pressed and, thereafter, another application dated 11.2.2004 under Section 70 of the Cr.P.C. has been moved and the same has been rejected by the learned CJM on 17.2.2004. The Application under Section 82 of the Cr.P.C. has been filed before the learned CJM and the same is pending for hearing. Details about his investigation in respect of each 10 cases have been highlighted in his report, which we have gone through the same. At the end the Investigating Officer has submitted that the investigation of the case has reached at a very decisive stage. The material collected by him is very voluminous. The accused are absconding and they are evading their arrest and charge sheet is required to be filed within 90 days of the arrest and he has prayed that a team of police personnel may be constituted to further course of investigation and for filing charge sheet in court as it is difficult for one investigating officer to investigate a case of this magnitude. As the Magistrate is also involved, he has prayed that permission to interrogate the Magistrate be granted as well as permission to interrogate officers of the court may also be granted as application in this regard are pending for consideration before the Registry of this Court.

70. The last report submitted by Mr. Dinesh B. Barvalia, Detective Police Inspector, CID, Crime, Surat (Rural) Unit, dated 3.8.2004 is also a detailed report by which he has highlighted the investigation being carried out as directed by this court and about the different cases registered against Mr. Manohar Galani in different courts in Gujarat and the investigation being carried out in respect of complaint filed by Mr. Manohar Galani. As per his report, he has highlighted about the accused who are involved in the offence by which different 10 complaints were filed in different courts of Gujarat against Manohar Galani and his family. The report indicate about involvement of 5 advocates, namely, Ashok Advani, advocate practicing in Maharashtra, Gopal A.Ramani, advocate practicing in Baroda, Gujarat, Rajesh Gohel from Dakor, Gujarat, Vallabhbhai C.Patel practicing in Sinor, Gujarat and Khalid Hussain Ibrahim Kadia from Dabhoi, Gujarat. Out of 5 advocates, Shri Ashok Advani and Gopal A Ramani both are absconding and some of the advocates, who were arrested, were released on bail. We have already observed earlier while considering the affidavit filed on behalf of Bar Council of Gujarat that against those advocates, Gujarat Bar Council has initiated disciplinary proceedings and Sanads (Licences) of Mr. Khambholja and his son, both who were practicing in Dakor Court, were permanently cancelled by the disciplinary committee of the Bar Council of Gujarat and against other advocates, who are found to be involved, the disciplinary proceedings were initiated by the Bar Council of India itself in the year 1999 and now it is contemplated that the Disciplinary Committee of the Bar Council of India is considering those cases on 26.9.2004. The report has also highlighted about the involvement of some of the police officers and their names are also highlighted. Some of the police officers were also absconding as per the report and one police officer, who is involved, namely Mr. Munia, Circle Police Inspector is dead. Some of the police persons were also arrested and they are in custody. About 14 persons, who are involved in committing offences as per the investigation being carried out, some of them are from Maharashtra and some of them are from Gujarat. The report indicates that out of the list furnished by the officer, some of the accused are absconding and the accused, who is absconding from Mumbai, namely, Kishore Keshwani is the main conspirator in the crime. Accordingly out of 14 civilians, who are involved in the offence, most of the accused are absconding and some of the accused, who are arrested, were in custody and one of the accused Shri Subhas D. Bhojwani was arrested and released on bail. The report indicates that even the Magistrate and the court staff were involved and one of the Magistrates is already retired. As per the report that including the retired Magistrate, there are about 4 persons, who are working in the court. A detailed report is submitted in respect of the investigation being carried out by the officer by recording statements of various persons and the officer has prayed for certain suitable directions to be given in respect of recording of the statement of one of the learned Magistrate, namely, the recording of statement of Mr. B.N.Modi as the original record of Criminal Case No. 337/99 from Padra Court is lying with this court and Mr. Modi has declined to give statement until and unless he verifies the original record.

71. We have already discussed earlier that on the administrative side the High Court has already made arrangement by calling Shri Modi for perusal of the record in the High Court premises in presence of Law Officer and he was also directed to after perusing the record give statement to the investigating officer and this fact is also informed to the investigating officer by the Registry of this Court.

72. Against the judicial Officer at Dakor Shri H.P.Thakar, who in turn has issued warrants in the complaint filed by Manjulaben against high dignitaries of Maharashtra at the instance of Manohar Galani and Mahesh Mahatre with the help of Shri Khambholja and other advocates, disciplinary proceedings were initiated and against the said Judicial Officer Shri Thakar after giving an opportunity of hearing to him order of dismissing him from service was passed and we have already observed that the said officer was immediately suspended after the episode of Dakor was brought in light. As directed by us, the order passed in the disciplinary proceedings against Shri Thakar on administrative side being D.I.No.5/95 dated 18.6.2001 is also produced and the same is also taken part of this petition to facilitate while considering the documents, though it has nothing to do with the record of the main petition filed by Mr. Padiwal. Mr. Pardiwala has also during his submission brought to our notice that Shri Thakar has challenged the order passed on administrative side of the High Court by which he was dismissed from service by filing Special Civil Application before this court and the learned single Judge has also on considering the contentions raised in the said petition filed by Mr. Thaker and on examining the order, has dismissed the petition by holding that the Court would not find any merit in the contentions raised by the counsel appearing for the petitioner and petition is devoid of any merit and the petition was accordingly dismissed by discharging the rule with no order as to costs. Mr. Pardiwala has also produced the copy of the judgment rendered by the learned single Judge in petition filed by Mr. Thakar.

73. Against the clerk attached to the Court at Dakor, the departmental inquiry was conducted, namely, R.M.Prajapati, who was working as Senior Clerk in the court of the learned JMFC, Dakor and during inquiry, the inquiry officer has held that the delinquent Shri Prajapati was found guilty of act of negligence, carelessness and dereliction of discharging his Government duties and he has committed breach of Rule -3 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. On the basis of the report submitted by the inquiry officer against the delinquent Shri Prajapati in respect of Departmental Enquiry No. 2/2002, the disciplinary authority, namely, the District and Sessions Judge, Kheda has in light of the contentions raised by the delinquent observed in his order that the witnesses could not be examined and the registered notices issued to the witnesses was found unserved as the addressees have left and so far as the charge regarding acceptance of illegal gratification by the delinquent is concerned, it is not proved and even the witnesses Mr. Mahesh Mahatre and Galani could not be examined for want of their presence and accordingly the disciplinary proceedings initiated against said Prajapati by which the disciplinary authority has exonerated him on the circumstances stated in his order. Against Shri Prajapati another Departmental Inquiry No. 3/2002 was also held. That was also in pursuance to the complaint being filed before the court of the learned JMFC, Dakor, wherein warrants were issued against the opponents to the said case. The Inquiry Officer has accordingly held that Mr. Prajapati is guilty of the charge leveled against him and a notice was issued to the delinquent Prajapati as per the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971 by which Shri Prajapati was called upon to show cause why penalty of dismissal should not be imposed upon him and the disciplinary authority has after considering the reply received from the delinquent Shri Prajapati held delinquent guilty for the charges levelled against him and punishment of withholding of one increment for three years with future effect, from the next increment falling due was imposed.

74. In light of the report submitted by the officers of the CID (Crime) from time to time and the final report, which has been submitted during the hearing of this petition, which we have already discussed and observed about the material collected during the inquiry and further as per the report submitted, the investigating agency of C.R.No.1/95 registered at the instance of the complainant Manohar Galani against the 17 persons, the investigation revealed that the accused are involved and further the report indicate that as the investigation is in progress there are many more persons are involved in the case. The Officer, who has submitted report, has expressed that he is the only officer to whom the investigation was entrusted and he has collected during investigation material and also recorded statements of the witnesses by visiting not only in Gujarat but other parts of India, namely, Maharashtra and Madhya Pradesh. Some of the advocates, who are involved in the offences, as per the report suggest that they are absconding and not available to the prosecution. Some of the high ranking police officers involved were also not available to the police. However, Mr. Arun Oza, learned G.P., appearing in the matter, has also brought to our notice that the high ranking officers had also surrendered and they are also in Jail.

75. Looking to the prayers in this petition, this Court has to consider the reports submitted by the officers of the CID (Crime) and as found warrants were sold in the court by submitting an amount of Rs. 6000/- or Rs. 6500/- and on the basis of such report published, annexed with the petition, at the initial stage the court has directed the Director General of Police of Gujarat State for appointment of an Officer from CID to investigate and submit report. The petitioner has also in the petition, as observed earlier, prayed for many directions in this regard against the advocates, who are involved in the matter, who are adopting such practice and also against concerned court and their staff who have also indulged in this fashion in procuring the warrants in a fictitious complaint. Accordingly first of all we must see how best the directions can be given to all concerned, including the Judicial Magistrates functioning in different courts, the judicial staff attached to the courts through whom the orders, which were passed, are to be executed, advocates, who are also one of the limbs in respect of the cases, which are filed in court of law and if the advocates are involved in such scandal, not only that they are required to be held responsible under the Advocates Act, but also if it is found that they are responsible, then such advocates also deserve prosecution.

76. We have heard at length on the aspect of what precaution one is required to take to avoid such repetition of incident. Admittedly the incident which has occurred in 1994 for which this petition is filed as a public interest litigation and this court has also directed the police authority to submit report to find out who are the persons responsible in such scandal. Unfortunately this petition was disposed off alongwith other Criminal Misc. Applications and Special Criminal Applications filed by some of the accused, who are involved as accused in offences registered vide C.R.No.1/95 on the complaint being filed by Manohar Galani and by allowing the petitions/applications filed by those accused, the learned single Judge has also disposed of this petition by holding that the petitioner in person had already expired, which we have already referred to earlier. After the Criminal Misc. Applications and Special Criminal Applications, which were filed by some of the accused of C.R.No.1/95, were allowed and quashed the complaint and also quashed the investigation, no investigation was proceeded thereafter. The Supreme Court has as back as in 1999 set aside the order of the learned single Judge of this court and even restored this Special Civil Application to be considered by the High Court as directed by the Apex Court. It seems that even prior to 1999, the Officers of the CID (Crime) had submitted 6 reports between 13.1.95 to 27.3.95. After 1999 when the Supreme Court has set aside the order of the learned single Judge, investigation revealed that thereafter the first report, which is furnished by the officer is dated 25.2.2004 and by virtue of the investigation being carried out, the officers had taken steps in respect of further investigation of the case registered vide C.R.No.1/95 and some of the accused were arrested and after the arrest is made, the officer had also filed charge sheet against the arrested accused before the Special Court, Vadodara. The last report submitted by the officer of the CID (Crime) is dated 3.8.2004. Therefore, it is very clear that after 1999 when the Apex Court has allowed the Special Leave Petition filed by Manohar Galani and the order of the learned single Judge was set aside, including the present Special Civil Application is also ordered to be restored for which this court is required to consider the Special Civil Application as public interest petition and during the pendency of this petition from 1999 till this petition is notified before us, the similar incident has occurred recently in the court of the learned Metropolitan Magistrate at Meghaninagar, Ahmedabad, Gujarat. Considering this background, we have to consider that as per the judicial set up, the courts in Gujarat is set up, and the concerned Court is required to decide the Civil and Criminal cases and the Court has to consider about their jurisdiction while adjudicating the matter. In each District, there is a court of the learned District and Sessions Judge. So District and Sessions Judge, who is the judicial officer, who in turn is required to supervise all the courts in his District and the District Judge is also empowered to control and to find out the working of the courts below and to take surprise checking. The pendency of the matters are concerned, the District Judge is the person who can gather this fact regularly from the reports submitted by the trial court and in turn such report about pending cases is also to be submitted to the High Court on the administrative side. We know that so far as working in each court is increased. The Civil Judge and the Magistrate, who were practicing advocates and were also Law Graduates, were selected as they have to clear the examination. As this incident has occurred in a criminal matter, the Judicial Magistrate, who is the first person, who had to apply his mind at the initial stage when any complaint is brought before him. The Civil Judge and Judicial Magistrate has also to perform while discharging their duties as per the Rules framed under the Civil Manual and Criminal Manual to check that a false or frivolous complaint is not filed. Immediately after the incident in the court of the learned Metropolitan Magistrate at Meghaninagar, Ahmedabad, the Chief Metropolitan Magistrate Court had issued direction by way of circular to all the Metropolitan Magistrates on 3.3.2004. Mr. Pardiwala, learned advocate, has submitted that even on the administrative side, the High Court has immediately on 26.2.2004 issued confidential letter to all the District and Sessions Judges and the Chief Metropolitan Magistrate, Ahmedabad by highlighting about false and frivolous and vexatious complaints filed against the innocent persons abusing the process of law to satisfy the malicious urge or personal vengeance and accordingly in that letter the view was expressed that the learned Magistrate before taking cognizance of the offence and the officers therefore even while issuing the summons in the first instance, instead of playing role of mere post office, must carefully screen and scrutinise the complaint and the Magistrate himself to find out whether in fact it contains any germ or ingredient of the offence by which the process is required to be issued prima facie and inspite of the reported judgments, in many courts, false complaints are being filed against innocent persons and no serious efforts are taken to prevent filing of such false complaints and the High Court under its letter has circulated the reported decision of the Supreme Court as well as of this High Court and directed them to record verification of the complainant/witness in their own hand writing in the open court with a specific instruction that any negligence on the part of any Judicial Officer with this regard will be viewed seriously and appropriate action will be taken immediately against the erring Judicial Officer and such information is to be called for from the concerned Judicial Magistrate/Metropolitan Magistrate and to forward this information in a prescribed form to the High Court. This prescribed form Proforma "P" is also forwarded alongwith the said letter and by issuing such direction on administrative side, the details will be available to the High Court. This is the step taken by the High Court on administrative side immediately when this incident of issuing bogus warrants against high dignitaries like President of India, Chief Justice of Supreme Court and others were brought to light. Another Circular is also issued on the administrative side of the High Court on 3.2.2004 being Circular No.A.0719/2004. The said Circular was in respect of the recent incident of issuance of warrants in the Court of the Metropolitan Magistrate, Ahmedabad in a private complaint inter alia against his Excellency President of India, the Hon'ble Chief Justice of India and another Hon'ble Judge of the Supreme Court of India and the said incident was reported in the news paper and the Supreme Court has taken a serious view in the matter as the reporting of this incident in the news paper is likely to affect the judicial system in the State and may shake confidence of the people in judiciary. With a view to ensuring that the stream of justice remains completely pure so as to ensure continuation of faith and confidence of the people in the judicial system and the process of courts of Justice, the Chief Justice has directed the Principal Officers of the City Courts at Ahmedabad and the District and Sessions Judges in general and the District Judges of heavy stations like Ahmedabad (Rural), Vadodara, Surat, Rajkot, Jamnagar, Bhavnagar and Junagadh in particular be asked to remain vigilant with respect to their courts and other courts in their Districts and cause frequent inspections so that such evil practices do not take place at the hands of unscrupulous persons and people are not harassed unjustifiably through the medium of courts and its processes and all the Principal Officers of the City Courts at Ahmedabad and District and Session Judges were directed to take suitable action in compliance with the directions and to submit report to the High Court immediately.

77. Mr. Pardiwala has also produced before us the Circular dated 3.3.2004, by which the learned Chief Metropolitan Magistrate, Ahmedabad had issued certain instructions to all the Metropolitan Magistrates in the court of the Metropolitan Magistrate, Ahmedabad. This Circular is in respect of filing private complaints. If any complaint is filed by way of private complaint, the complainant's identity card be taken with the complaint. If the complaint is filed, there must be initial in the complaint of concerned clerk and Assistant Superintendent and each Assistant Superintendent to verify the same as verification is made in a plaint. Certificate of immovable properties in original should be executed in bail applications and surety's identity card or it's true copy should be attached therewith. One and the same surety should not be allowed to be produced repeatedly and a certificate to that effect should be produced by an advocate. A Register of sureties be prepared and the entries about the same be made in detail therein. In all there are 11 different directions given by way of Circular to the concerned Magistrates.

78. The High Court is also having its vigilance cell and through this vigilance cell on administrative side, the High Court deals any complaint is being received against the judicial officer in the State. The vigilance cell consists of a person known as "Vigilance Officer" and such officer is in the cadre of District and Sessions Judge. Under the Vigilance Officer a person works known as Deputy Vigilance Officer, who is appointed from the cadre of police department and the Deputy Vigilance Officer, who is appointed, is not below the rank of Inspector of Police. The High Court has established Vigilance Cell as back as in 1986 and through this vigilance cell on administrative side of the High Court it is examining any complaint received against the Magistrate. If any complaint is received against any judicial officer or a subordinate staff of the court, where the complaint is of demanding bribe, the vigilance cell under the supervision of the vigilance officer carried out the raid to trap the person against whom the complaint is received of demanding bribe, in the similar way, the raids being carried out by the officers of the Prevention of Corruption Department.

79. It is necessary for us to refer at this stage that when this petition was filed by late Shri Padiwal, it was treated as public interest litigation attached by news paper cuttings by highlighting the incident of issuance of arrest warrant against the high dignitaries of Maharashtra alleging that the warrants are being sold by parting Rs. 6500/- and the petition was filed before the Registry on 12.12.1994 and as found from the order passed by the Magistrate on the complaint being filed by Manjulaben on 24.11.1994, the High Court on administrative side had instructed Shri Ahuja, Law Officer, to inquire and examine the record of the said criminal case and directed to record statement of complainant and to take specimen of the thumb impression of the complainant and to verify whether the complainant had gone to court to file such complaint. As directed by the High Court, Law Officer had gone to Dakor immediately on 7.12.1994. A detailed report was submitted by him on 12.12.1994. This report is also taken on record as produced by Mr. Pardiwala, which is at page 327. On perusing the said report it is found that Shri Ahuja had verified the original record of Criminal Case No. 1063/94 while visiting the court at Dakor in which the address of the complainant was not given and accordingly Ahuja with the help of local persons from the locality known as Dungra Bhagor had made inquiry about the complainant Manjulaben. The inquiry revealed that no such lady named Manjulaben is residing in the address given. Accordingly Ahuja recorded the statement of Shambhubhai Kodabhai to that effect. Shri Ahuja has accordingly confirmed that as per the address mentioned in the complaint, complainant Manjulaben is not residing in the said area and accordingly he had made further inquiry while visiting the office of the Municipal Borough at Dakor to make inquiry about the complainant. Narendrabhai, the Secretary of the Municipal Borough, Dakor, was contacted who has on verification told him that no such lady named Manjulaben is residing in Dungra Bhagor at Dakor. Shri Narendrabhai, Secretary of Dakor Municipal Borough, had also issued certificate to that effect on verification from the electoral roll. The Certificate is dated 7.12.1994. Shri Ahuja has also recorded the statement of Shankerbhai Purshottambhai Vasava, who resides at Nani Bhagor, Dakor on 7.12.1994, by which he has stated that he is selling fruits outside the Ranchhodrai Temple and he has also stated that no lady named Manjula is doing business of selling fruit near Ranchhodrai Temple, as in the complaint Manjulaben has shown to be attached with business of selling fruits near Ranchhodrai Temple. Shankerbhai has further stated that one lady named Manjulaben Shankerbhai is residing in Nani Bhagor, but her surname is Vasava and not Parmar. Therefore, Ahuja has accordingly in company of that witness visited Nano Bhagor for inquiry and that lady was not the complainant Manjulaben. The Law Officer has accordingly in his report submitted that there is no lady named Manjulaben residing in the area known as Dungra Bhagor, Dakor. Shri Ahuja has also recorded the statement of Mr. H.P. Thakar, Civil Judge (JD), Dakor, who was suspended on 8.12.94 and the statement of Shri Rameshbhai M. Prajapati, Sr.Clerk and he has taken specimen of the strokes of the Typewriter at Thassra Court. He has also recorded the statement of D.M. Khambholja, Vinod Verma and M.M.Khambholja, advocates. The report indicate that in view of the statement of advocate Shri M.M. Khambholja, he has admitted his signature in the Vakalatnama and further he has stated that the complaint might have been filed by his son or his junior and there was no talk in respect of this complaint with his son and he came to know about the issuance of bailable warrants at about 12.30 P.M. on 25.11.94 and he handed over the cover containing the bailable warrants to the persons, who were accompanying the complainant, but that person was not known to him. Mr. M.M. Khambholja has denied having any talk on telephone with the Magistrate in respect of the process to be issued in the complaint.

80. On the administrative side, High Court had also issued letters on 19.1.95 to the District Judges of Vadodara, Kheda, Jamnagar and the Chief Metropolitan Magistrate, Ahmedabad informing them that while investigating the matter of issuance of bogus warrants by Dakor court, it has come to the notice of the High Court that in some of the courts also similar process has been issued against Mr. Manohar Galani and his family members and in pursuance to the order passed by the High Court for investigation to be carried out by CID (Crime) Branch, Vadodara Unit, the request was made by the officers of the CID for some original documents from the record for investigation and the xerox copy of the documents were furnished to the officers. We have already referred to earlier in respect of the departmental inquiry initiated against Mr. Thakar as well as Mr. Prajapati, senior clerk, attached to the court and the outcome of the said inquiry. We have already dealt with in respect of the order of the learned Magistrate passed for issuance of warrants against the high dignitaries of Maharashtra and the said order was taken in suo motu revision by the learned Sessions Judge, Nadiad on 7.12.94 by calling the record and proceedings from the trial court and the said suo motu revision application being Suo Motu Revision Application No. 197/94 was allowed by the learned Sessions Judge and set aside the order passed by the learned Magistrate below complaint Exh.1. After the said order was passed, the learned Sessions Judge on 7.12.94 has passed order under Section 408 of the Cr.P.C. transferring the Criminal Case being Criminal Case No. 1063/94 from the court of the learned Judicial Magistrate, Dakor to the court of Chief Judicial Magistrate, Nadiad and accordingly the Chief Judicial Magistrate, Nadiad had addressed a letter to the Commissioner of Police, Mumbai for immediately returning of the bailable warrants. So far as status of that Criminal Case is concerned, according to the Chief Judicial Magistrate, Nadiad that since the complainant could not be served and there is no appearance in the matter, the matter is still pending. We have already dealt with earlier that once the learned Sessions Judge has while taking the order of the learned Magistrate in suo motu revision, allowed the Revision Application on 7.12.94, it is only thereafter that the record and proceedings is send back to the trial court for execution of the order for calling back the warrants issued to the respondents in that case and we have already quashed the said criminal complaint.

81. Record and proceedings of 10 cases filed against Manohar Galani and his family is lying here as per order passed by the Apex Court and in the matter of dacoity case filed by Mr. Tarachand against Manohar Galani and others, in which after the case was investigated by the police as per the order passed under Section 156(3) of the Cr.P.C., the police has filed charge-sheet against Manohar Galani and the said case is pending because of the fact that the record and proceedings is lying here. Equally all other cases are concerned, out of which 3 cases are already dismissed for default and record of those cases are lying before this court and on the complaint being filed by Manohar Galani vide C.R.No.1/95, in which the investigation is still under progress and the police had also filed charge sheet against some of the accused, who are arrested, before the Special Court, Vadodara. In respect of the investigation of complaint being C.R.No.1/95, it is also the case that during investigation that even the complaint filed by Tarachand against Manohar Galani and others in respect of dacoity case, the investigation revealed that there was no such incident ever occurred and even that case is also concocted and false and even filing of this case is concerned against Manohar Galani, a conspiracy was hatched and in the said conspiracy, the advocates are also involved and through advocate by filing a criminal case the order is obtained from the court and even after obtaining the order with the help of the staff of the court, the documents were forged and ultimately it revealed that even the complaint filed by Tarachand against Manohar Galani and his family is concocted one. It is the case of the prosecution and even as per report submitted by the officers that Tarachand -original complainant is absconding.

82. In this public interest litigation Mr. Anandjiwala is representing Shri Tarachand and he has filed an application for joining party respondent in this matter by annexing various documents in support of his case, which were have already referred to earlier. According to Mr. Anandjiwala that it is not correct to say that his client Tarachand is absconding and he requested us that if protection is granted to him, he will see that Tarachand is produced before this court. It is hardly required to be considered by this court and further investigation in the said case is in progress and as Mr. Tarachand has filed application for joining party in this proceedings, we have heard Mr. Anandjiwala in this petition.

83. It is also necessary for us to observe that the outcome of the investigation carried out by investigating officer of the complaint of Manohar Galani, registered vide C.R.No.1/95, the investigating officer has gathered many documents to suggest that all the cases that have been filed in different courts by different parties against Manohar Galani are false and concocted one and those persons, who are responsible, they are accused in complaint being C.R.No.1/95 and the police has already submitted chargesheet against some of the accused before the court of the learned Special Judge, Vadodara. By filing charge sheet by collecting material against the accused persons to suggest that the accused have committed offences under the I.P.C. as well as also some of the officers, who are public servants, who had also misused their position being a public servant and they are responsible for committing the offences under the Prevention of Corruption Act. It is necessary for us to refer to certain decisions, which are relevant for our purpose while considering the submission made before us by the counsel appearing in the matter. As Mr. Raju, the learned advocate, appearing for Manohar Galani has vehemently urged that as directed by the Supreme Court while examining the public interest litigation, this court is required to see the reports submitted from time to time by the officers of the CID and according to him that the officer was appointed by this court at the initial stage while passing order in the petition by directing the Director General of Police to appoint an officer of the CID (Crime) and to submit report in respect of the news paper report published by which this public interest litigation is filed.

84. Mr. Arun Oza, the learned G.P., has also according to him that the investigation of C.R.No.1/95 is being carried out by the independent officer, who in turn has recorded the statement of witnesses and collected material in the form of statements and documents by which he has already filed charge sheet before the Special court against some of the arrested accused and he has submitted reports in this proceedings in respect of the inquiry conducted by him as per the order of the court. Mr. Oza has accordingly contended that as directed by Apex Court when the record and proceedings of the said case being the case filed against Mr. Manohar Galani is before this court, this court is equally required to quash the said complaint in view of the report submitted by the investigating officer, as it is clear that even at the initial stage when Tarachand has approached the court and filed complaint, a conspiracy was hatched from the beginning even to forge the documents, which is collected during the investigation being carried out in respect of the offence registered vide C.R.No.1/95. So if this is the outcome of investigation of C.R.No.1/95 then this court certainly is required to quash the said criminal case and further that Tarachand is the complainant and once the police has filed charge sheet after the investigation of the said complaint, criminal case which is pending in the court at Dabhoi deserves to be set aside.

85. During hearing several decisions were cited before us. In the decision of the Apex Court in the matter of Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat, reported in AIR 1991 SC 2176, the Supreme Court has in the same case considered the earlier decision of the Supreme Court as well as of the High Court. In the said case the petitioner was Shri N.L.Patel, who was working as Chief Judicial Magistrate at Nadiad in October 1988. As found from the said decision Shri Patel, Chief Judicial Magistrate, has consumed alcohol and the incident has occurred on 25.9.1989. The Police Officer in Nadiad had exhibited berserk behaviour of police undermining the dignity and independence of judiciary. One S.R.Sharma, Inspector of Police, with 25 years of service, posted at the Police Station, Nadiad had assaulted and handcuffed Shri N.L.Patel, Chief Judicial Magistrate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in same condition to the Hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in State of Gujarat. Shri Sharma got the Chief Judicial Magistrate photographed in handcuffs with rope tied around his body along with the constables which were published in the newspapers all over the country. This led to tremors in the Bench and the Bar throughout the whole country. Judicial Officers, Judges and Magistrates all over the country were in a state of shock and they felt insecure and humiliated and instead of rule of law there was police Raj in Gujarat. Various Bar Councils and All India Judges Association had approached the Apex court by sending telegrams and petitions under Article 32 of the Constitution of India for saving the dignity and honour of the judiciary and the Supreme court has taken cognizance of the matter and issued notices to the State of Gujarat and other police officers. As found from the said decision that since there was serious disputes between the parties with regard to the entire incident, the Supreme Court has appointed Justice R.M. Sahai, as he then was, Puisne Judge of the Allahabad High Court to inquire into the incident and to submit report to the court.

86. Mr. Raju, learned advocate, has while relying upon this decision contended before us that in this public interest litigation filed by late Shri Padiwal, the Division Bench has directed the Director General of Police to appoint a senior officer of the CID (Crime) Branch to inquire and submit report and accordingly the report is submitted by the said officer from time to time and as directed by the Apex Court that while deciding this public interest litigation petition, the court should look into the allegations and decide the same. According to Mr. Raju that in all the 10 cases filed in different courts of Gujarat against Manohar Galani and his family, record and proceedings are, as per the order passed by the Apex court, brought to this court and the record and proceedings are also very much available and according to him that in view of the reports submitted by the officer, who was appointed, the same is to be considered as a report of the Commission and in light of the decision of the Apex Court, Apex Court has in turn on considering the report of the Commission quashed the complaint filed against N.L.Patel under the Prohibition Act. In the matter of N.L.Patel, the Supreme Court has appointed the Commissioner, who was a Puisne Judge of the Allahabad High Court and the Supreme Court has also while considering the report submitted by Hon'ble Justice Sahai, has in term observed in paragraph 41, which reads as under:- "We agree with the finding recorded by the Commission that there was no justification for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehumanizing behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if he had not been handcuffed or tied with ropes, he could have snatched Sharma's revolver and killed him. We are amazed at the reasons given by Sharma justifying the handcuffs and ropes on the body of N.L.Patel. Patel was unarmed, he was at the Police Station in a room, there were at least seven police officials present in the room who were fully armed, yet, there was apprehension about Patel's escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and preposterous. S.R.Sharma acted in utter disregard of this Court's direction in Prem Shanker Shukla's case (AIR 1980 SC 1535). His explanation that he was not aware of the decision of this Court is a mere pretence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorporating the guidelines laid down by this Court in Prem Shanker Shukla's case with regard to the handcuffing of prisoner."

87. The Supreme Court has also in the said decision considered the way in which the Hon'ble Justice Sahai has inquired into the matter as a one man commission appointed by the Apex Court. The details about the inquiry conducted by Hon'ble Justice Sahai by which he has recorded the statements of the witnesses and also gave an opportunity to cross examine those witnesses examined before him. In the entire enquiry conducted by Hon'ble Mr. Justice Sahai, appointed by Apex Court, he has in fact inquired into the matter in the way while recording evidence and all the parties to the said inquiry had been given an opportunity to cross examine the witnesses examined before him. The Supreme Court has in term accordingly in the said case quashed the criminal case filed against Mr. N.L.Patel, who was facing the criminal case for breach of the Prohibition Act. In light of the report submitted by one man commission, as appointed by the Apex Court, even the inquiry was conducted in respect of the incident by appointing a person, who is a senior most Judge of the Allahabad High Court at that time and the inquiry, which he has conducted, clearly shows that the opportunity was given to the parties, wherein the evidence was led before him in judicious manner. The Supreme court has accordingly considered the report submitted by Hon'ble Justice Sahai as one man commission appointed by the Apex Court. It is true that it is only the Apex Court has while considering the petitions filed by the various individuals and associations appointed an inquiry into the matter by appointing one man commission of appointing Hon'ble Justice Sahai, as he then was.

88. In the present case it is true that immediately on considering the petition filed by Mr. Padiwal, the court had as per order dated 20.12.94 directed the Director General of Police to inquire about the report published in the news papers and the seriousness of the allegations and the Director General of Police was directed to entrust the inquiry to a competent senior officer of the CID (Crime) Branch and whatever inquiry conducted, he has to submit report to this court.

89. In light of the decision of the Apex Court, which we just referred to, the Apex court has quashed the complaint filed against N.L.Patel under the Prohibition Act by considering the report of Justice Sahai, as he then was for which it is very clear that during inquiry conducted by Justice Sahai, as he then was, he has conducted the inquiry in a judicious way by giving opportunity to all the parties concerned. In the present case, we have already examined the reports submitted from time to time by the officers of the CID (Crime). It is also to be noted that as per the investigation being carried out by the officer in respect of the offences registered at the instance of the complaint filed by Manohar Galani registered vide C.R.No.1/95, the investigation revealed that all the 10 cases, which were filed in different courts in Gujarat against Manohar Galani, the same are bogus and in all these cases, which were filed, there are many persons involved who had committed offences and for which the investigating officer has also filed charge-sheet before the court of the learned Special Judge, Vadodara.

90. Accordingly while considering the Criminal Procedure Code and the charge sheet, which has been filed in C.R.No.1/95, some of the offense have been committed which will affect the administration of justice and in light of the various decisions on this point, in the charge sheet, which has been filed by the police, the court can not take cognizance in the matter provided that the respective cases filed in different courts for which material, which has been collected, which will form part of the charge-sheet, to suggest that the respective cases filed in different courts in Gujarat are nothing but all the cases are concocted and false and by filing such false cases in different courts, the advocates, the Magistrates, the staff of the court and even the police personnel are also involved. This is only found in respect of the complaint filed by Tarachand against Manohar Galani and others, wherein a serious case of robbery is filed. All the criminal cases are pending in different courts, out of which 3 cases are already dismissed for default. The reason is that the complainant, who has filed the complaint, has not appeared before the court. But the criminal complaint, which has been filed by Mr. Tarachand before the court of the learned J.M.F.C. against Manohar Galani and others, the said complaint was sent by the Magistrate for investigation as per order by sending the complaint under Section 156(3) of the Cr.P.C. The investigation revealed that as found as per the charge-sheet filed by the police in respect of the offence registered vide C.R.No.1/95 that even after the order was passed by the learned Magistrate, somebody had also forged document and forged the court yadi, which was issued in favour of the investigation and the yadi was also changed by forging the said document and ultimately in respect of the investigation of that case is concerned, the same was investigated by the officer, who in turn has after investigation of the said complaint submitted report in the form of filing charge sheet against Manohar Galani. That is a very serious offence.

91. We have also perused the application filed by Mr. Tarachand for joining party in this pending petition filed by Shri Padiwal with documents attached thereto. As found from the averments made in his application, he has alleged against the investigating officer in the manner in which he has recorded the statement of his wife and others. As found from the documents attached to the application, an attempt is made to show the manner in which the statements were recorded by the investigating officer of his wife and it is the submission of Mr. Anandjiwala that this report cannot be equated with the report of an independent judicial officer, who had submitted report as if the report under the Commission of Inquiry Act.

92. We will refer to Section 195 of the Cr.P.C. which deals with the prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. As per the said provisions, no court shall take cognizance of any offence punishable under Section 172 to 188 of I.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

93. The learned single Judge while dealing with the Applications filed by some of the accused of C.R.No.1/95, by which offence was registered for the offence under Sections 489 etc. of the I.P.C. and as per the FIR, it indicate that same is related to judicial process initiated in the form of different complaints in the court of Judicial Magistrate, First Class, Dakor and it is alleged in the FIR that for getting the process issued in different complaints, various forged documents are used and the court has been misled to issue process on the basis of these documents. Section 195(b) reads as under:-

"195(1) No court shall take cognizance- (a)(i) ****** (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii) except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."

94. The only contention, which was raised by the accused to the said petitions/applications, is that there is a bar of Section 195 of the Cr.P.C. and in light of the bar of Section 195, the court has held that neither the police station at Dakor nor the CID (Crime) could have taken the cognizance of the complaint and the same will hit under Section 195 read with Section 340 of the Cr.P.C. The Supreme Court has in term set aside the said decision of the learned single Judge and the Supreme Court has in term observed that the investigation be proceeded with in accordance with law.

95. In light of what we found from the record and contentions raised before us, it is very clear that a complaint filed before the court of the learned JMFC, Dakor through advocate Shri Khambholja is admittedly at the instance of Manhar Galani and Shri Matre and both of them had admitted that they have approached Mr. Khambholja practicing advocate at Dakor where the advocate has to file complaint by making arrangement of calling for complainant and a complaint was to be filed against the high dignitaries of the State of Maharashtra for which Manhar Galani had agreed to pay Rs. 6500/- by way of fees and to obtain warrants against those high dignitaries and the purpose for obtaining such order from the Magistrate was not for execution of such warrants against high dignitaries. In our view, the reports submitted from time to time by the officer of the CID (Crime) indicate in the manner in which the inquiry was conducted as directed by this court and on the complaint being filed by Manhar Galani registered vide C.R.No.1/95, the investigation revealed that false and concocted cases have been filed against Manhar Galani and his family members with the help of complainant's advocate in different courts in Gujarat.

96. Section 195 of the Cr.P.C. contained in Chapter XIV of the Code which relates about the conditions requisite for initiation of proceedings. Section 195 deals with the prosecution for three different groups of offences i.e. contempt of lawful authority of public servants, certain offences against public justice and certain offences relating to documents given in evidence. The second and third groups are connected in that, both of them affect the administration of justice. Under Clauses (i) and (ii) of Section 195(1)(b) the complaint of the civil, revenue or criminal court concerned is necessary for any criminal court to take cognizance of certain offences against public justice or certain offences relating to documents given in evidence, as observed in the matter of K.Ramaswami Iyengar v. K.V. Panduranga Mudaliar, reported in AIR 1938 Mad. 173,174. In the said decision, where the court has observed, which reads as under:- "This salutary rule of law is founded on common sense. The dignity and prestige of courts of law must be upheld by their presiding officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a court's honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial claim of tribunals and to allow a court's prestige to be the sport of personal passions."

97. It is also necessary for us to refer to the decision of the Apex Court in the case of State of Karnataka v. Hema Reddy, reported in AIR 1981 SC 1417. In the said decision at page 1424 it is observed, which reads as under:-

"The underlying purpose of enacting Section 195(1) (b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings."

98. In light of this, it is very clear that for the purpose of Section 195 Clause (1)(b)(i) a complaint by the Court is a pre-condition for taking cognizance of such offence by any criminal court.

99. The Supreme Court in a decision in the matter of M.S. Ahlawat v. State of Haryana, reported in (2000)1 SCC 278 has observed which reads as under:-

"Section 340 CrPC prescribes the procedure as to how a complaint may be preferred under Section 195 CrPC................. It is in respect of such offences the court has jurisdiction to proceed under Section 340 CrPC and a complaint outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."

The Apex court has further observed :-

"It is made clear that there is no inherent power to make a complaint apart from the provisions of Section 195 CrPC"

100. The Supreme court has also while examining the powers under Article 142 in the matter of Supreme Court Bar Association v. Union of India, reported in 1998 (4) SCC 409 observed which reads as under:-

"Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. The very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ignoring out the creases" in a cause or matter before it. Indeed the Supreme Court is not a court of restricted jurisdiction of only dispute -settling. The Supreme court has always been a law-maker and its role travels beyond merely dispute-settling. It is a 'problem-solver in the nebulous areas' but the substantive statutory provisions dealing with the subject -matter of a given case cannot be altogether ignored by the Supreme Court, while making a order under Article 142."

101. The charge refers to offences under Sections 465, 466, 468, 471 and 474 as well as Sections 182,193,195,196,199, 200,205, 209 and 211 of IPC. The substance of the charge is about conspiracy to initiate false and frivolous criminal proceedings before the different courts in the State of Gujarat against the complainant Manhar Galani and his associates and thereby obtaining warrants or effecting arrest through investigating agency and keeping such persons in jail to knockout the amount. It is further alleged by the prosecution that by such false and frivolous complaints the accused had fabricated false record and evidence and used the same in court proceedings as genuine and true one and thereby misused the power of keeping the complainant and his witnesses in custody. The contents of the charge sheet thus, clearly indicate that there was conspiracy to commit these offences by resorting to initiation of false, frivolous complaints in different courts and for achieving that object fabricated record was prepared and false witnesses were created to initiate proceedings and thereby detained the complainant and his associates in jail and further to compel them to compound the dispute. The above referred offences in the charge sheet thus clearly attract the bar of Section 195 of the Code of Criminal Procedure. The procedure under Section 340 of the Cr.P.C. has to be followed and unless and until there is a complaint of concerned court before which these offences are alleged to have been committed, decides to record a finding to that effect and also the opinion is formed that it is expedient in the interest of justice to make an inquiry against such persons in relation to the offence committed by them, the filing of a complaint before the appropriate court against such persons is not legally tenable.

102. It is necessary for us to refer to the decision in the matter of N. Natarajan v. B.K.Subha Rao, reported in AIR 2003 SC 541 as well as the decision in the matter of M. Narayandas v. State of Karnataka, reported in 2004 SCC (Cri.) 118, which reads as under:-

"In respect of offences adverted to in Section 195, Cr.P.C. there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that Court. Section 340, Cr.P.C. is invoked to get over the bar imposed under Section 195, Cr.P.C." "Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed."

103 It is also necessary for us to refer to the decision of the Apex Court in the matter of Subhash Chandra v. State of U.P., reported in (2000)9 SCC 356 while dealing with the direction of the Hon'ble High Court that "the complaint shall be drafted and lodged against the petitioner in accordance with Section 340 Cr.P.C. and other formalities of law under Section 340 Cr.P.C. read with Section 195 Cr.P.C. shall be complied with", clearly observed that "the stage at which such directions have been issued is, in our opinion, premature." Apex Court further observed : "The petitioner had only filed a complaint under Section 156(3) CrPC, before the Court of Special Sessions Judge, (DAA), Farrukhabad which is still to be investigated and found out by that Court whether the complaint lodged before that Court was false and had been made with the necessary intention or knowledge to induce the Court to exercise its lawful power so as to cause injury to respondent 3-6. Once those ingredients are established and the charge is found to have been proved, then alone the court can take cognizance of that offence and proceed in the manner directed by the High Court by the impugned judgment."

Thus, while setting aside the direction issued by the Hon'ble High Court, the Apex Court has observed :

".......... with the observation that the Special Sessions Judge (DAA), Farrukhabad shall proceed to dispose of the complaint under Section 156(3) CrPC in accordance with law and if it is found that the complaint was false and has been filed with the knowledge and intention set out in Section 182 IPC, the court will proceed further in the manner indicated by the High Court."

104. In light of the observations of the Apex Court, the concerned court has to record a finding that the proceedings initiated before the Court were false and frivolous based on forged and fabricated evidence and it was expedient in the interest of justice that the proceedings should be initiated after following procedure under Sections 340 and 195 of Cr.P.C.

105. Section 195(3) of the Cr.P.C. which reads as under:-

"For the purpose of this Section, a Court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the Principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate."

106. In light of the above provisions, it would be required to be considered which court can initiate proceedings by following procedure under Section 340 read with Section 195 of Cr.P.C.

107. A decision of the Apex Court was cited before us in the matter of Kuldip Singh v. State of Punjab, reported in AIR 1956 SC 391 and it is necessary for us to make reference of paragraph 41 of the said judgment, which reads as under:-

"The next question is whether the High Court could itself have made the complaint in this particular case because if it could have done so then we would not have used our extra ordinary powers of appeal under Article 136 to set right what would in those circumstances have been a mere procedural irregularity. But as our opinion is that the High Court had no jurisdiction to act under S. 476 in this case, we are bound to interfere.

As we have shown, Section 195 contains an express prohibition against taking cognizance of the kind of complaint we have here unless the ban is lifted either by the original court or the court to which it is subordinate within the meaning of Section 195(3). Those are the only courts invested with jurisdiction to lift the ban and make the complaint.

Had this been a case in which the High Court was the superior Court within the meaning of Section 195(3), the matter would have been different, but as the High Court was neither the original Court nor the Court to which the original Court was subordinate, according to the special definition in Section 195(3), it had no jurisdiction to make the complaint of its own authority. Therefore, all that the High Court could, and should, have done was to send the case to the District Judge for disposal according to law. We will, therefore, now do what the High Court should have done."

108. It is, therefore, very clear that the Apex Court had while setting aside the order of the High Court of Punjab remitted the application for making of a complaint to the District Judge to proceed in accordance with law.

109. In light of the charge sheet filed against the accused persons arising from C.R.No.1/95, wherein the accused are also alleged to have committed offences other than the offences enumerated under Section 195 and for which the investigating agency has filed charge-sheet and whether it would be open and within the power of the concerned court to take cognizance so far as other offences are concerned, which are not included under Section 195 of the Cr.P.C. and for which no complaint of that concerned court is necessary.

110. Mr. Pardiwala has also cited the decision of the Apex Court in the matter of Basir-Ul-Haq v. State of Bengal, reported in AIR 1953 SC 293, where the Supreme Court has observed, which reads as under:-

"Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not induced within the ambit of that section but the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the Court or of the public servant is required.

Offences falling under Sections 182 and 297 of Penal Code - Accused can be prosecuted for offence under Section 297 without sanction under Section 195, Criminal P.C.

Offences falling under Sections 182 and 500, Penal Code - The ingredients of the offence under Section 182 cannot be said to be the ingredients for the offence under Section 500. Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation. Offence under Section 500 can be tried without sanction under Section 195, Criminal P.C."

111. As per the above decision it is clear that if the offences are distinct having been committed in the same transaction then for a distinct offence which is not included under Section 195 Cr.P.C., the court has powers and jurisdiction to take cognizance. In the said judgment in paragraph 14 has observed, which reads as under:- "In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it."

112. The above judgment was also considered subsequently by the Apex Court in the matter of Dr. S.Dutt v. State of U.P., reported in AIR 1966 SC 523 and in paragraphs 15 and 16 the Supreme Court has observed, which reads as under

"We are, therefore, satisfied that Dr. Dutt's conduct does not come within S. 471. On the other hand, it falls within S. 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Sections 465/471. The former is punishable with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine.

In this connection we may again recall the words of this Court which were put in the forefront by Mr. Chari that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under S. 195 of the Code of Criminal Procedure. If the offence was under S. 196, Indian Penal Code, a complaint in writing by the Court concerned was required. Before a complaint is made the Court has to consider whether it is expedient in the interests of justice to order a prosecution. In the lesser offence no such complaint by the Court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a device is not to be commended. In our opinion, the offence in the present case did not fall within Section 465/471, I.P.C. and the prosecution launched against Dr. Dutt cannot be allowed to go on."

113. The subsequent decision of the Apex Court in the matter of State of Karnataka v. Hema Reddy, reported in AIR 1981 SC 1417, in which the Supreme Court in paragraph 8 has observed, which reads as under:-

"We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

114. Thereafter, the Supreme Court has again considered in the matter of State of U.P. v. Suresh Chandra Srivastava, reported in AIR 1984 SC 1108 and in paragraph 6 the Supreme Court has observed, which reads as under:-

"In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120B IPC are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code."

115. The Supreme Court has also examined the provisions of Section 233 of the old Cr.P.C. and Section 218 of the new Code in the case of Banwarilal v. Union of India, reported in AIR 1963 SC 1620 and in paragraph 14 the Apex Court has observed which reads as under:- "The question is, what is meant by every distinct offence? 'Distinct' means 'not identical'. It stresses characteristics that distinguish while the word 'separate' would stress the 'two things not being the same'. Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not."

116. In light of the above various decisions of the Apex Court, which we have referred to, the position of law can be deduced as under:-

(i) Where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences formed an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code.

(ii) If the other offences which are not included under Section 195 are all together distinct offences and are in no way inter-related with each other then perhaps the court may be justified in taking cognizance so far as those offences are concerned and can proceed with a trial.

(iii) The provisions of Section 195 cannot be evaded by the device of charging a person with an offence to which that Section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the IPC, though in truth and substance the offence fall in the category of sections mentioned in Section 195 Cr.P.C.

(iv) Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing or by putting a wrong label on it.

117. In light of the above decisions, which we have referred to and keeping in mind the position of law as explained, the Special Judge, before whom the charge sheet has been filed by the Investigating Officer of C.R.No.1/95, wherein it is also transpired that the charge-sheet is also filed against some of the accused for the offence punishable under the Prevention of Corruption Act, 1988, it is equally necessary for the learned Special Judge to apply his mind and to record finding as to whether it would be possible for him to take cognizance under the Prevention of Corruption Act, 1988 against the accused, who are public servants. As found from the charge-sheet, it may reveal that the offences under the Prevention of Corruption Act are purported to have been committed by the concerned public servants independently of the alleged conspiracy and the public servants prime facie may not be connected with the alleged conspiracy of fabricating false record and evidence and initiating criminal proceedings which according to the prosecution are bogus and false. The learned Special Judge is accordingly required to apply his mind after proper verification of the charge sheet and the material filed by investigating agency alongwith the charge-sheet.

118. In light of this provisions and when the investigating agency had already filed charge sheet before the Special Court, it is also necessary that the Special Judge shall examine the same to take cognizance against the accused persons, who are involved in an offence under the Prevention of Corruption Act. Accordingly while disposing of this petition, it is necessary for us to give directions, which pertains to the lower judiciary as well as to the Bar Council and the Special Court where the charge-sheet is filed by the investigating agency in respect of offence registered vide C.R.No.1/95. In our view, the following directions which we are required to give, while allowing the petition:

A. In our view the first direction, which we are required to give is to the court, namely, to the learned Special Judge, Vadodara, before whom the investigating officer has filed charge-sheet in respect of investigation carried out vide C.R.No.1/95 against some of the accused, who are arrested. Inspite of filing charge-sheet, the Court has not proceeded further except by extending the remand period from time to time. Accordingly it will be in the interest of justice to direct the Special Judge, Vadodara to immediately consider the papers of charge-sheet and consider about the material found in the charge-sheet and to apply his mind about the question of bar of Section 195 of the Cr.P.C. and consider whether it will be within his power and jurisdiction to pass orders and if he is unable to take cognizance under the I.P.C. as the same are covered under the bar of Section 195 of the Cr.P.C., the court may consider in respect of offence under the Prevention of Corruption Act against those accused against whom the charge was framed, who are public servants and whether the charge for the offence under the Prevention of Corruption Act can be framed against those accused persons, who are public servants. The learned Special Judge shall accordingly immediately decide and pass order within 4 weeks. If the learned Special Judge decides that it is not permissible for him to take cognizance in so far as offences under the IPC are concerned, in view of specific bar of Section 195 of the Cr.P.C., he shall immediately forward the copy of the papers of the charge sheet to the respective courts where these offences have been committed. After the order is passed by the learned Special Judge, Vadodara, as aforesaid, and the papers of charge sheet is forwarded to the concerned court, in which the cases were filed, the concerned Magistrate, as soon as it receives the charge sheet papers from the learned Special Judge, shall immediately proceed to consider whether it would be expedient in the interest of justice that inquiry should be made to the offence with which the accused has been charged in the charge-sheet i.e. for the offence referred in Clause (b) of Section 195 of the Cr.P.C. by giving priority to this case and see that the same is complied in accordance with law within 4 weeks of the papers of the charge sheet received by the respective courts.

B. In view of the above direction given by this court, it is also necessary that the concerned court shall report about the steps being taken by them in the matter to the Registry of this court and in turn such report received from the concerned court will be placed before us. In light of the fact that the charge sheet is filed by the police in respect of the offences registered vide C.R.No.1/95 and the investigation papers of that case reveal that it pertains to different criminal cases registered at different courts in Gujarat filed against Manohar Galani and others, it will be necessary to direct the investigating agency that the material collected in respect of each criminal case, which has been filed in different courts against Manohar Galani, be separated and the said material from the charge-sheet is to be forwarded to the concerned court to facilitate the concerned court to decide the matter. The record and proceedings of different 10 cases filed in different courts against Manohar Galani and his family members are preserved under custody of this court and the details of the said 10 cases are as under:-

(i) Criminal Case No. 1099/93 filed in the court of JMFC, Dakor, District Kheda.

(ii) Criminal Case No. 337/99 filed in the court of JMFC, Padra, District Vadodara.

(iii) M. Case No. 11/94 filed in the court of JMFC, Dabhoi, District Vadodara.

(iv) Enquiry Case No. 3/94 and Criminal Case No. 368/94 filed in the court of JMFC, Jamkhambalia, District Jamnagar.

(v) Enquiry Case No. 6/94 filed in the court of JMFC, Bajwa, Court No. 4.

(vi) Enquiry Case No. 3/94 filed in the court of JMFC, Municipal Court, Makarpura, Baroda.

(vii) Criminal Case No. 102/99 filed in the court of JMFC, Borsad. (viii) Criminal Case No. 704/99 filed in the court of JMFC, Dabhoi, District Vadodara.

(ix) Summary Suit No. 67/94 filed in the court of 3rd Joint Civil Judge, Vadodara.

(x) Criminal Case No. 288/99 filed in the 18th Court of Metropolitan Magistrate, Mirzapur, Ahmedabad.

The record and proceedings of those aforesaid cases are ordered to be transmitted back to the respective courts and the registry of this court is accordingly directed that while transmitting all those cases to the respectively courts in Gujarat, the xerox copy of each document of each case is to be taken out and preserved separately and see that the record and proceedings reaches to the respective court safely and the respective court be also informed that all the record and proceedings of respective courts are required to be preserved in safe custody and to see that the said record is not mishandled or tampered with.

C. Criminal Case No. 337/99 filed in the court of JMFC, Padra, District Vadodara, was already dismissed for non prosecution. Enquiry Case No. 3/94 and Criminal Case No. 368/94 filed in the court of the JMFC, Jamkhambalia, District Jamnagar and in the court of JMFC, Borsad respectively were dismissed for absence of the complainant and Criminal Case No. 102/99 filed in the court of the JMFC, Borsad, was dismissed as the complainant was absent. Even in respect of those 3 cases though all the 3 cases were dismissed, concerned court shall consider the charge-sheet papers and pass appropriate orders as indicated earlier and case papers are also to be preserved in safe custody.

D. Any person has a right to approach the court and ventilate the grievance. If any complainant approaches the advocate, it is the duty of the advocate to ascertain all facts from him and also identity of that person and after ascertaining all these facts about the identity, he shall move the court by filing complaint. If any proper complaint is filed, it should be presented with the registry of court and a responsible person from the court is to take the said complaint and put his initial on the same and register the same in the register. After examining the said complaint, the original papers were never to be returned back to the advocate or the party and the same is to be placed before the concerned court and the concerned Magistrate shall examine the same and after application of mind, shall pass appropriate orders on the same. Meaning thereby that he should not mechanically pass the order on such complaint.

E. The order must be also specific and legible and singed by him by putting date. The Rojnama is to be prepared immediately on the presenting of the complaint and the same is to be maintained by the Magistrate though he can take help of his clerk, but it should be completed on the same day with legible hand writing and all the documents, including the rojnama, are required to be preserved properly so no document is torn out. After the order is passed when it goes for execution, the concerned officer, who has to act for execution of the order, shall immediately in compliance with the execution of the order shall issue Yadi or any order and that also if it is not typed, then in legible hand writing. The address of the complainant and the respondent should be insisted before even taking steps for placing the matter before the concerned court. No papers of summons or orders is to be handed over to the party for service and it should be given to a proper police person for execution. No record of the case is permitted to be taken out from the court premises or from the office premises and it is the responsibility of a person, who can see that the court record is preserved properly.

F. District and Sessions Judge of each District shall take surprise visit to the concerned court under him and inspect the court and the work of the court and also in respect of court records.

G. The verification of the statement of the complainant should be recorded by the Magistrate though he can take help of his clerk, who while recording such statement, it should be in legible writing. It is a fit case in which we are required to give direction to the State Government to see that necessary facilities of computer/typewriter and stationery be provided to the concerned court and the Registry of this court is accordingly directed to see that all proper steps are being taken to see that in all courts in Gujarat necessary computer/typewriter machine be provided with proper strength of staff so the concerned court may carry out the work systematically and smoothly.

H. No court shall pass any order in its chamber and accordingly all the judicial work he should carry out in the open court.

I. The concerned Magistrate or Judge shall see that at the end of the day the cases, which were proceeded before him, had been reflected in the rojnama on the very day and the Magistrate or Judge shall sign the same before he leaves the court premises.

J. The Magistrate while recording the verification shall ensure about the identification of the person, i.e. he is the same person. As now almost all citizens even in small villages have got the identity card issued by the Government authorities, so at the time when the private complaint is filed through advocate, it is proper to insist that the complainant shall produce either identity card/ration card/even the certificate issued by the recognized authority, namely, Secretary of Panchayat, Corporation, Police Patel, etc.

K. The Magistrate shall see that when the cases are registered and notified before him, he shall take up the matter on that day and try to avoid for adjourning the matter, if the case is of an old one.

L. In view of the circular issued by the High Court recently all the courts in Gujarat has to furnish information and to carry out the directions given in the said circular. Even in respect of the order passed by the concerned court, wherein summons/yadi etc. are to be issued, those courts are also to see that it is kept and preserved with systematic manner so that those papers also are available at the time when the matter is listed before the court and it is to be placed before the court so the concerned court can see how the execution of the order was being carried out.

M. So far as Bar Council is concerned, it governs under the Advocates Act. Once any complaint is received, the same is to be examined and if it is found for referring the said complaint before the Disciplinary Committee, it should see that the inquiry is completed in accordance with law within the time limit prescribed and the decision on the same is to be taken in accordance with law immediately. It is brought to our notice that in the present case some of the advocates are involved and against whom even the cases are registered in the year 1999 and it is unfortunate that till 2004 no progress is made in those cases. Accordingly it will be in the fitness of things to direct the Bar Council of Gujarat that such cases, where the disciplinary action is taken against the advocates under the Advocates Act and where the cases are referred to before the disciplinary committee of Bar Council, the same is to be disposed off as early as possible in accordance with a law.

N. While disposing of this petition, it is equally necessary that as per the report submitted, it is found that the advocates are involved in which the prosecution is launched. The Bar Council will see that against those advocates, the action be taken even by referring their cases to the disciplinary committee of the Bar Council of India.

O. In respect of the request made by the investigating officer in respect of facing difficulties by him in respect of the investigation of the judicial officers involved in the present case, we have also observed that on the administrative side the concerned Magistrate has already been informed to take inspection of the record of the case and it is only after taking inspection of the said documents, the said officer has to give statement and the intimation is already given to the concerned Magistrate. However, ultimately, on administrative side the matter is already taken and the Magistrate is already informed to take inspection of the record, which is lying in this court.

P. The request is made by the investigating officer as highlighted by Mr. Arun Oza, learned G.P., that all the original record of 10 cases are lying in this court and some of the documents, need to be send for examination before the Hand Writing Expert in the office of the hand writing expert at Gandhinagar. As found from the affidavit filed by Mr. Dinesh B. Barvalia, the Detective Police Inspector, CID Crime, Surat Rural Unit dated 24.8.2004, he has highlighted that he is facing certain practical difficulties. Though the registry of this court has furnished the certified copies of each documents in December 2003, however, some of the documents of the record are required to be referred to before the hand writing expert and those documents be send for examination before hand writing expert. To safe guard the interest of all, it will be in the fitness of things to give necessary directions to the registry of this court that the original documents from cases, which the investigating officer wishes to refer before the hand writing expert, be send and while sending the same for hand writing expert, the registry first will take out the xerox copy of such document which is to be preserved with other documents and separately by registry of this court and the original document pertaining to each case is to be send in a sealed cover and the responsible officer from the registry with the officers of the investigating agency be deputed for handing over the same to the responsible officer of the office of the hand writing expert and equally the office of the hand writing expert shall preserve the said documents in the same manner and after examination of the said documents the office of the hand writing expert shall inform the registry of this court as well as to the investigating officer or by deputing a responsible officer from his office to the registry of this court and hand over the said sealed cover containing the documents to the registry and on receiving the said original documents, the registry shall see that these documents are replaced in its own place in the record. We also express that the office of the hand writing expert shall see that the documents, which were send for examination, be examined as early as possible, within 15 days and the same be returned to the Registry of this court accordingly and after said documents are received from the hand writing expert and after replacing these documents in the original record, the registry shall see that the record and proceedings of the respective court be sent to the respective court by special messenger even by deputing from this court or by calling the responsible person from the concerned court.

Q. In respect of the difficulties, as shown by the investigating officer, about recording statement of a learned Magistrate, on administrative side the concerned Magistrate is already informed through the District Judge that he shall inspect the original record and after inspecting the same he can give statement. This information is already conveyed to the investigating officer.

R. As highlighted in the report in respect of the application filed before the concerned court, we are not required to give any direction as concerned court is supposed to dispose of the application in accordance with law. It is equally necessary that the P.P. appearing in that matter if he is seeking urgent orders, he should see that the application, which is filed, is placed before the court and same is disposed off as early as possible looking to the urgency highlighted in the application and the court also is equally required to see that the application which is brought before him is decided as expeditiously as possible, however in accordance with law. Except this direction, no direction is necessary.

S. In the last report submitted by Mr. Dinesh B. Barvalia, the Detective Police Inspector, CID Crime, Surat Rural Unit dated 24.8.2004, he has highlighted that the investigation of this case is being handed over by him.

T. At the end we may observe that but for the assistance rendered by all the counsel, who had assisted this court in deciding this public interest litigation filed way back in the year 1994, it would not be possible for this court to decide the same. We may accordingly record that Mr. Arun Oza, learned G.P., who appeared for the State, Mr. Girish D. Bhatt, learned senior advocate, who appeared for Bar council of Gujarat, Mr. Pardiwala, learned advocate, who represented the High Court, Mr. S.V. Raju and Mr. Anandjiwala who appeared for respective clients have ably assisted us, for which it was possible for us to decide the same. Lastly we are also thankful to the services rendered by Shri S.N.Shelat, learned Advocate General, who had also appeared in this matter as requested by us and assisted us in the matter as the petitioner of this petition late Shri Padiwal has expired and accordingly it should not feel that the court has proceeded with the matter without joining any amicus curiae on behalf of the petitioner. In respect of the Investigating officer, who has taken pain in the investigation, we may also appreciate the manner in which he has investigated the present case and has collected material to bring out the accused, who are not only of general public but are also the Judicial Magistrates, staff, Police Officers, Advocates and others.

U. The petition is accordingly disposed off in the above terms and the Registry shall immediately give directions, as indicated hereinabove, to the concerned courts. Petition is disposed off with no costs.

V. In view of the fact that we have heard Mr. Anandjiwala at length even in the main petition and according to us without expressing anything on the contentions raised in this application, the present application deserves to be rejected by which the applicant has prayed for joining him as party respondent. While rejecting the application, we may observe that the applicant is aware about all the proceedings as the applicant has also moved the High Court for seeking prayer for quashing the complaint and his application was allowed and as this petition was pending since 1994, there is no reason that the applicant has to approach this court recently when the court has proceeded with hearing of the main petition. Accordingly Civil Application No. 5683/2004 is rejected.

In view of the order passed in main matter, Civil Application No. 5683 of 2004 does not survive and the same stands disposed off accordingly.

(D.K.Trivedi,J.)

(K.M.Mehta,J.)

arg.

K.M. MEHTA, J.

I have read judgment of my learned brother Mr. Justice D.K. Trivedi. I fully concur with the view expressed by my learned brother. However, as this matter is very important and raises important questions of law, I would like to give separate judgment. Though the facts have been set out by my brother, with a view to see that the facts are properly gathered and put it on record, I have decided to set out the facts in extenso as the petition is very voluminous and bulky and a lot of facts have emerged from the record of the case. Therefore, I have decided to give separate judgment setting out all the facts.

1A. Ajit Padiwal, an Advocate- also in his capacity as petitioner (since deceased) filed the petition on 12.12.1994 before this Court under Article 226 of the Constitution of India. He filed this petition as public spirit citizen and also as public interest litigation. In the said writ petition, he has prayed that this Court may be pleased to direct appropriate proceedings be initiated against the persons involved in the scandal of warrants in Dakor case like initiating criminal prosecution. He has further prayed that disciplinary action under the Advocates Act read with Bar Council Rules including cancellation of sanad, etc. and/or initiating contempt proceedings against certain advocates. The petitioner has further prayed that this Court may be pleased to direct an appropriate enquiry be held and submit the report in that regard before this Court. It may be noted that, originally, the petitioner had joined (1) the State of Gujarat-Respondent No. 1, (2) Registrar, High Court of Gujarat-Respondent No. 2 and (3) the Bar Council of Gujarat-Respondent No. 3. The Registrar, High Court of Gujarat, was deleted as party-respondent earlier, but, subsequently, he has been joined as party.

2. The background of the matter is as under:

3. One Manohar Mangharam Galani is residing at Ulhasnagar, District Thane, State of Maharashtra (hereinafter referred to as 'applicant' in Civil Application No. 8781 of 2002 which was filed before this Court). The applicant was, at the relevant time, working as Cashier-cum-Clerk with the Punjab National Bank, Fort, Main Branch, Mumbai. The other members of his family are:-

a) Shri Mangharam D. Galani, now 74 years old (father of the applicant).

b) Smt. Radha M. Galani, aged about 68 years (mother of the applicant).

c) Shri Dev M. Galani, aged about 37 years (brother of the applicant).

d) Rekha, Pushpa (sisters of the applicant, now married).

e) Inder R. Kukreja, aged about 48 years (brother-in-law of the applicant).

f) Mr. Bhagwan S. Punwani (brother-in-law of the applicant).

3.1 The applicant's younger sister Ms. Pushpa started a firm in the name of M/s. Jubilee Capital Market Services, at Ulhasnagar, which dealt with the sale and purchase of shares, and other related financial services, where the applicant used to render assistance in an advisory capacity.

3.2 Some time in March 1992, the applicant came in touch with one Mr. Kishore K. Keswani of Ulhasnagar. Mr. Kishore K. Keswani started investing in shares and stocks through the aforesaid firm in March 1992. The trouble started in June to October 1993 when the share market in the Mumbai Stock Exchange crashed resulting in very heavy losses to all and sundry including Mr. Kishore K. Keswani for which Mr. Kishore K. Keswani held the applicant solely responsible. He started pressuring the applicant and their family members to compensate him for the losses suffered. It appears that Mr. Kishore K. Keswani lost approximately Rs. 13 lakhs. Mr. Kishore K. Keswani not only harassed the applicant but also the applicant's sister. The sister of the applicant on relentless pressure being mounted by the accomplices of Mr. Kishore K. Keswani was made to sign 10 (ten) post-dated cheques without name of the payee being specified.

3.3 It appears that Mr. Kishore Keshwani has given aforesaid blank cheques to some of his relatives and associates. It appears that, as the cheques issued in favour of Mr. Kishore K. Keswani were bounced, Mr. Kishore Keswani had also initiated criminal proceedings under Section 138 of the Negotiable Instruments Act being Criminal Case No. 394 of 1993. The applicant was also arrested on non-bailable warrant issued by the Ulhasnagar Judicial Magistrate in the aforesaid case. Similarly, a complaint was also filed by Dunichand Makhija on 10.12.1993. On 23.12.1993 one Mr. Bansilal Hemdev also initiated criminal proceeding and in that proceeding also he has also asked the applicant to remain present in his office at Ulhasnagar and on that in the presence of Shri Kishore Keswani and one Kamal Bathija threatened the applicant with dire consequences in the event of the applicant not compensating Mr. Keswani.

BACKGROUND OF THE MATTER AND THE DETAILS OF VARIOUS CRIMINAL CASES STARTED AGAINST THE APPLICANTS AND THEIR FAMILY MEMBERS

4. As stated above, though Kishore Keswani and others have begun criminal proceedings under Section 138 of the Negotiable Instruments Act, they felt that the applicant and his family members were not giving any budge to Keswani and others in connection with payment of loss of Rs. 13 lakhs and, therefore, they have decided to further harass the applicant and his family members.

4.1 It appears that Kishore Keswani with the help of others undertook a well planned operation which involved active connivance and participation of police officers of the Gujarat Police and the Judicial Magistrates of various Courts with the help of few advocates to implicate the applicant and their family members in serious cases both civil and criminal through out Gujarat.

4.2 It appears that there was a party at the place of Kishore Keswani where several persons and Government officers came and video was taken and the copy of the said video cassette was kept with the applicant.

5. DETAILS OF TEN CRIMINAL CASES FILED AGAINST GALANI - APPLICANT AND HIS FAMILY MEMBERS:

5.1. M.CASE No. 11 OF 1994 (Before JMFC, Dabhoi Court, Railway matter):

5.1A M. Case No. 11 of 1994 was filed by Tarachand Manumal Sindhi against Mangharam Dharamdas Galani, Manohar Mangharam Galani, Dev Mangharam Galani, Pushpaben Mangharam Galani and Inderlal Kukreja (all accused in that case) for the offences punishable under Sections 143, 394, and 397 and 398 of the IPC. It is the case of the complainant that all the accused had come to the complainant and told them that they wanted to talk about the cheque. They decided to go to Vadodara. They decided to travel in a train on 14.1.1994 from Vadodara to Dabhoi. On the way, about 2.00 p.m, at Bhandhara Station, the complainant started discussing about the cheque with the accused. The accused got wild and and the accused used filthy language and snatched golden chain weighing two tolas and one wrist watch. The accused No. 1 showed a revolver (country-made) and said that if the complainant talks more they kill him. The rest of the accused had given kick and fist blows to the complainant. Accused No. 5 forced the complainant to sign on a blank paper. It may be noted that the learned JMFC passed an order under Section 156(3) of the Code of Criminal Procedure on the same day. The accused thereafter appeared and obtained bail in June 1994 by giving surety of Rs. 10,000/-.

5.2. CRIMINAL CASE No. 337 OF 1994 (JMFC Padra, District Baroda)

5.2A Thelram Kishinmal Sindhi filed the above complaint in the court of JMFC, Padra, against Mangharam Dharamdas Galani, Manohar Mangharam Galani, Dev Mangharam Galani, Pushpaben Mangharam Galani and Inderlal Kukreja for the offences punishable under Sections 323, 504, 506(1) and 114 of the IPC. In the complaint, it was alleged that on 14.1.1994 at 12 noon, the complainant was standing at Nain Bhaghat Wada near the adjoining three roads. At that point of time, all the accused had met the complainant and the complainant had demanded the amount of Rs. 15,000 from the accused No. 1, which the complainant had given to him in cash. When the complainant demanded money back, the accused No. 1 said what money ? what matter ?. The complainant told the accused that we are poor people so please return our money. All the accused got very annoyed and started abusing the complainant by using filthy language and the accused No. 1 hit the complainant with his fist on his back and at that time the complainant shouted and the people around gathered. Thereafter, the complainant filed a complaint against the accused.

5.3 In this case, the JMFC passed an order for issuing summons to the accused and the accused appeared. They were in jail for some time. They were arrested on 19.4.1994. They were, thereafter, released on bail on furnishing surety.

5.4. CRIMINAL CASE No. 1099 OF 1993 (Before JMFC at Dakor)

5.4A Gemsingh Shankarsingh Thakore filed Criminal Case No. 1099 of 1993 against Manohar Mangharam Galani and Pushpaben Mangharam Galani (all are accused in that case) under Sections 420 and 114 of the IPC. The complainant has alleged that he has given an advance of Rs. 31,000/to the accused in connection with investment in shares which he refused to pay. Hence, complaint was filed.

5.5 The learned JMFC, Dakor, passed an order dated 29.1.1994 issuing bailable warrants against the accused. The accused were arrested on 22.12.1993 and they were released on bail after furnishing security.

5.6 CRIMINAL CASE No. 288 OF 1994.[18th Metropolitan Magistrate Court, Mirzapur, Ahmedabad]

5.6A Kanubhai Somabhai filed Criminal Case No. 288 of 1994 in the Court of Metropolitan Magistrate, Court No. 18, Ahmedabad, against Mangharam Dharamdas Galani, Manohar Mangharam Galani, Dev Mangharam Galani, Pushpaben Mangharam Galani and Inderlal Kukreaja (all are accused in that case) under Section 420, 406, 114 of the IPC. The complainant had advanced a sum of Rs. 52,000/- which the accused refused to pay. Hence, complaint was filed.

5.7 The learned Magistrate, by order dated 23.2.1994, issued bailable warrant. In this case also, for some time, the accused were in jail and the accused were grated bail on furnishing surety.

5.8 CRIMINAL CASE No. 368 OF 1994 [Before JMFC, Jamkhambhalia - Inquiry Case No. 3/94] (transferred to Jamnagar Court as Criminal Case No. 323 of 1995)

5.8A Bhagwatiben Sajandas filed a complaint against Manohar M. Galani and Dev Mangharam Galani in the Court of JMFC, Jam Khambadia, (all are accused in that case) under Sections 363,406, 420, 354, 506(2) and 114 of the IPC.

5.9 The learned JMFC passed an order regarding enquiry under Section 202 after the complainant filed an affidavit. It appears that, after some time, on 16.1.1995, as the complainant was not traceable, the complaint was rejected as not pressed.

5.10 CRIMINAL CASE No. 102 OF 1994 [JMFC Court, Borsad]

5.10A Harishkumar Mukundlal Panchal filed Criminal Case No. 102 of 1994 in the Court of JMFC, Borsad, against Mangharam Dharamdas Galani. Manohar Mangharam Galani, Dev Mangharam Galani, Rekhaben Mangharam Galani and Pushpaben Mangharam Galani (all are accused in that case) for the offences punishable under Section 420, 406, and 114 of the IPC. It is the case of the complainant that the complainant has paid Rs. 35,000/- in cash which the accused has failed to return. Hence complaint was filed.

5.11 It appears that the JMFC, Borsad Court, passed an order issuing warrants against the accused on 20.1.1994. It appears that, thereafter, nothing has happened and the case was pending.

5.12. CRIMINAL CASE No. 3 OF 1994 (JMFC Municipal Court, Baroda)

5.12A Ashokkumar Indermal Vatiyani filed the aforesaid complaint against Manohar Mangharam Galani and Dev Mangharam Galani (all are accused in that case) for the offences under Section 406, 420 and 114 of the Indian Penal Code. In this case the accused has to pay Rs. 35,000/-. Out of that the accused has paid Rs. 3000/-. As Rs. 32,000/- was not paid, complaint was filed.

5.13. ENQUIRY CASE No. 6 OF 1994 (JMFC Bajwa Court No. 4, near Baroda)

5.13A Chandulal Dayaldas Jaisinghani filed the aforesaid case against Mangharam Dharamdas Galani, Manohar Mangharam Galani, Dev Mangharam Galani, and Pushpaben Mangharam Galani (all are accused in that case) for the offences punishable under Sections 420, 406, and 114 of the IPC in the Court of JMFC, at Vadodara.

5.14. SUMMARY SUIT No. 67 OF 1994 (3rd Joint Civil Judge, Vadodara)

5.14A Vasava Natubhai Chhotubhai filed the aforesaid suit in the Court of the learned Civil Judge (S.D.), at Vadodara, against Manharbhai Mangharam Galani, on the ground that the defendant had executed a promissory note for Rs. 1 lakh on 30.6.1993 and as the defendant has failed to make against the said promissory note, the suit was filed on 29.1.1994.

6. CONTROVERY BEFORE THE DAKOR COURT IN CONNECTION WITH FAKE AND BOGUS WARRANTS:

6.1 In November 1994, the applicant narrated entire story about all above mentioned cases to the local reporter from Bombay, Mr. Mahesh Mahatre and requested him to help him out. Mr. Mahesh Mahatre started investigation with the help of the applicant.

6.2 On 24.11.1994 Shri Mahatre met advocates Shri Deepak and Shri Mithilesh Khambolja of Dakor, who finally, agreed to lodge a false complaint and obtained warrants of arrest for Shri Mahatre for a sum of Rs. 6,500/-. On the same evening at about 7.00 p.m., the Head Clerk of the Dakor Magistrate Court came to the office of the advocate Shri Deepak Khambolja with the summons book of the Magistrate Court and a Court seal and asked Shri Mahatre the names of the persons against whom the summons had to be issued. On Shri Mahatre stating that he would only be satisfied with the warrants against the alleged accused, advocate Shri Mithilesh Khambolja spoke to the Dakor Magistrate, Mr. H.P. Thakore, who assured them on the telephone that the warrants would be issued on the next day against the persons sought to be prosecuted.

6.3 On 25.11.1994 Shri Mahatre was handed over bailable warrants for offences under Sections 363, 354, 506(2) of the Indian Penal Code by the Magistrate Shri Thakore after Shri Mithilesh Khambolja had met with the Head Clerk Shri Ramesh Prajapati and the Magistrate in his chambers against seven dignitaries whose names are as under:

(i) Shri Padamsingh Dajirao Patil, then Home Minister, Maharashtra.

(ii) Shri V.N. Gadgil, Spokesman, AICC.

(iii) Honourable Mr. Justice M.L. Pendse (as his Lordship then was), Acting Chief Justice of the Bombay High Court.

(iv) Shri Madhav Gadkari, an eminent journalist.

(v) Shri Keshavrao Dhondge, Member of the Legislative Assembly, Maharashtra.

(vi) Shri Arun Adsad, Member of the Legislative Assembly, Maharashtra.

(vii) Shri Sabir Shaikh, Member of the Legislative Assembly, Maharashtra.

6.4 Thereafter on 4.12.1994 at 1.00 a.m. in the morning, copies of the warrants against the seven dignitaries referred to earlier were submitted by Shri Mahesh Mahatre at the Azad Maidan Police Station, Bombay with instruction that the warrants were not meant to be executed but were only for the purpose of exposing of scandal. Thereafter, a number of leading newspapers on 4.12.1994 carried reports of the aforesaid incident. The same was published in a newspaper in which Mr. Mahesh Mahatre was reporter.

6.5 Subject No. 1 - steps taken by the High Court on administrative side -

6.5A As regards incident of Dakor of issuance of fake warrant was published by Mr. Mahetre in his newspaper on 4.12.1994. Thereafter, other newspapers have also reported the news. It appears that this Court on administrative side also took a decision and under instruction of the Registrar of the High Court, the then Law Officer of the High Court, Mr. Ahuja, immediately rushed to Dakor on 7.12.1994 and recorded statements of complainant of Criminal Case No. 1063 of 1994 which was filed in the Court of JMFC, Dakor in which warrant was issued and to take the specimen of the thumb impression of the thumb of the complainant and to further verify whether the complainant had gone to the Court to file such a complaint and under what circumstances. The Law Officer rushed to Dakor on 7th December 1994 and commenced inquiry in the matter.

6.6 On 8.12.1994, Shri H.P. Thakar the then Civil Judge (J.D.), Dakor, was served with an order of suspension. The statements of Shri H.P. Thakar Civil Judge (J.D.), Dakor and one Shri Rameshbhai Mohanbhai Prajapati serving a Senior Clerk, Civil Judge (J.D.) Court at Dakor were recorded. The specimen of the 'strokes of the typewriter' at Thasra Court were also collected. Statements of the advocate Shri Deepak M. Khambholja and Shri Vinod Jayantilal Verma were also recorded. Statements of one Kiritsinh Prabhatsinh Jhala and Kuversinh Raijibhai Parmar were also recorded to confirm whether any lady by name Manjulaben exists in the town residing somewhere near Galteshwar Mahadev Temple. The Law Officer tendered his report dated 12.12.1994 to the Registrar, High Court of Gujarat. A copy of the said report has been submitted by Mr. J.B. Pardiwala learned advocate who has appeared on behalf of the High Court. (see: page 326-335)

6.7 Subject No. 2 - steps taken by the Competent Court for the said incident.

6.7A On 7.12.1994, the Sessions Court, Nadiad, had taken the order passed by the JMFC, Dakor, in suo-motu revision being Criminal Revision Application No. 194 of 1994 and called for record and proceedings of Criminal Case No. 1063 of 1994 from the Court of JMFC, Dakor. The learned Sessions Judge, Nadiad, (Shri J.R. Vora, J (as he was then)) allowed the Criminal Revision Application and quashed the order passed by the JMFC, Dakor dated 24.11.1994. It is further directed that the trial court to call back the warrant if at all issued by the speediest means available and the complainant was remanded to the trial court for proceeding in accordance with law. On 7.12.1994, the Sessions Judge, Nadiad, passed an order under Section 408 of the Cr.P.C. transferring Criminal Case No. 1063 of 1994 pending in the Court of JMFC Dakor to the Court of the Chief Judicial Magistrate, Nadiad. The then Chief Judicial Magistrate, Nadiad, requested the Commissioner of Police to immediately return the bailable warrants. The copy of the order of summons dated 7.12.1994 taking the order passed below Criminal Case No. 1063 of 1994 in suo-motu revision and quashing the complaint and bailable warrant is passed (at page 336-340) before the Court.

CRIMINAL CASE NO. I-211 OF 1994

6.8 It may be noted that, in view of the aforesaid incident of Dakor, on 15.12.1994, First Information Report under Section 154 of the Code of Criminal Procedure Code was lodged at the police station at Dakor by Shri Harishkumar Ishwarlal Sewak, which was numbered as C.R. No. I-211 of 1994 against four persons who were responsible for filing a false complaint against the seven dignitaries and obtaining warrants against them. The said case is pending being C.R. No. I-211 of 1994 before the Dakor Court.

PRESENT MATTER

7. Thereafter, on the basis of the said report from the Bombay newspaper, Times of India, dated December 9, 1994 (Ahmedabad) also reported the news regarding litigation against the applicant and other accused. Gujarat Samachar, dated 8th December 1994, also carried the said news of Dakor case and also given details about various litigations initiated by various persons against the applicant and their family members. Jansatta dated 8th December 1994 also carried similar news report in this behalf.

7.1 Being aggrieved and dissatisfied with the newspaper report, Mr. Ajit Padiwal, advocate as well as petitioner, (since decease), filed the present petition before this Court on 12.12.1994 for various reliefs which I have narrated in the first paragraph.

7.2 The matter reached for hearing before this Court on 20.12.1995. The Division Bench of this Court (Coram: M.B. Shah & N.N. Mathur, JJ (as they then were)) passed the following order:

"Considering the newspaper report and seriousness of allegations, the Director General of Police Gujarat State is directed to inquire about them and if necessary to entrust the enquiry to competent senior officer of the CID Crime Branch. He is further directed to submit report to his Court as early as possible."

7.3 This is how the enquiry commenced in this regard at the end of CID Crime branch and the necessary machinery was set into motion to probe into the scandal which tarnished the image of judiciary and the noble legal profession.

7.4 Pursuant to the aforesaid order, the applicant was summoned to the Bombay High Court by the then Registrar of this Court, Shri R.R. Jain, for giving a statement regarding the matter of issue of bogus complaints and warrants being issued by the Dakor Court, District Kheda, where the applicant explained in detail the procedure and the modus operandi adopted by persons desirous of obtaining false warrants.

7.5 Pursuant to the aforesaid order of the High Court, the CID Crime Branch commenced investigation and the applicant vide his letter dated 2.1.1995 requested him to allow the applicant to make his statement which would be useful for investigating the scandal in the Dakor warrant scandal case. In pursuance of the aforesaid letter, the Additional Director General of Police summoned the applicant and the statement of the applicant was recorded over a period of four days, i.e. 7th, 8th, 17th and 185h of January 1995 at Baroda.

7.6 Thereafter, the Police Inspector, CID Crime, Gujarat, Shri S.G.Choudhary wrote to the Registrar of this Court vide his letter dated 18.1.1995 requesting the Registrar of this Court for allowing him to procure the original complaints, vakalatnamas, and documents in relation to the cases filed against the applicant and his family members for conducting an investigation even in the case of the applicant as has been directed by this Court.

7.6.A In pursuance of the aforesaid application, the Registrar of this Court addressed a letter dated 19.1.1995 to the District Judges of various districts requesting them to hand over the original records for investigation.

7.6B It may be noted that during the pendency of the proceedings CID Crime filed a report dated 13.1.1995 report No. 1; further report dated 31.1.1995 - report No. 2; further report dated 14.2.1995 - report No. 3; further report dated 28.2.1995 - report No. 4; further report dated 21.3.1995 - report No. 5; further report dated 27.3.1995 - report No. 6.

7.6C It may be noted that along with report dated 21.3.1995, Additional D.G.P. (Crime), Gujarat State, Ahmedabad, Shri P.G.J. Nampoothiri, had also filed a separate report which is annexed with the report dated 21.3.1995.

7.6D In the report dated 30.1.1995, it has been stated that as per the order of this Court dated 16.1.1995, enquiry should be conducted into other incidents of bogus warrants issued by the other Courts throughout the State and the CID had undertaken investigation in all the cases which had come to light having been filed against the applicant and his family and an investigation into those cases revealed the commission of various offences under the IPC.

CRIMINAL CASE 1/95 FILED AT THE CID CRIME BARODA.

7.6E It may be noted that, in view of these proceedings, the applicant came to know that all these cases were false and bogus and the CID Crime has carried out the investigation of ten cases filed against the applicant and his family members. In view of the same, on 3.2.1995, the CID Crime, Baroda, registered First Information Report of the applicant vide C.R. No. 1/1995 for the offences punishable under Sections 120B, 389, 348, 465, 466, 468, 471, 474, 409, 410, 109, 119, 167, 182, 114, 115, 219, 220, 506(2), 193, 195, 196, 199, 209, 200, 205 and 211 of the IPC against several (19) persons. The said persons were found prima facie involved in the filing of false and bogus cases against the applicant and his family members in various Courts in Gujarat. Statements of some of the important persons were also recorded.

8. DETAILS OF VARIOUS CRIMINAL PROCEEDINGS

8.1 In view of this C.R. No. 1/1995 which was filed by the applicant, it appears that all these persons who are accused in C.R. No. 1/1995 filed various criminal proceedings before this Court. The details of the proceedings are set out hereinafter:

(i) Misc. Criminal Application No. 751 of 1995 Ashok N. Advani Vs. The State of Gujarat and Shri S.G. Chaudhry, application under Section 482 of Cr.P.C. read with Article 226 of the Constitution for quashing the FIR being C.R. No. 1/1995

(ii) Misc. Criminal Application No. 933 of 1995 filed by Subhash Dolatram Bhojwani v. State of Gujarat and Shri S.G. Chaudhary - Application under Section 482 read with Section 438 of Cr.P.C. The petitioner has filed this petition for quashing the FIR being C.R. No. 1/1995 registered at C.I.D. Crime, Baroda.

(iii) Special Criminal Application No. 372 of 1995 filed by Kishore Kakoomal Keswani and others in all 10 persons against the State of Gujarat and Senior Officer of Police Crime Branch, Vadodara. In that case also the petitioners had prayed for quashing and setting aside the FIR being C.R. No. 1 of 1995 lodged at C.I.D. Crime, Vadodara.

(iv) Miscellaneous Criminal Application No. 572 of 1994 was filed by Miteschandra Manilal Khambolja and others against the State of Gujarat and Investigating Officer under Section 438 read with Section 482 of Cr.P.C.

(v) Misc. Criminal Application No. 751 of 1995 was filed by Shri Ashok N. Advani against State of Gujarat and S.G. Chaudhry, P.I. Crime Branch, Vadodara. The said petition was filed under Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India for quashing and setting the FIR bearing No. 1 of 1995 lodged at C.I.D. Crime Register, Vadodara.

(vi) Special Criminal Application No. 527 of 1995 was filed by Kanubhai Somabhai against Shri S.C. Chaudhari and State of Gujarat under Section 438 read with Section 482 and under Articles 26 and 227 of the Constitution of India for quashing C.R. No. 1 of 1995. The said petition was filed in March 1995.

(vi) Special Criminal Application No. 436 of 1995 was filed by Tarachand Sindhi and another against State of Gujarat and Shri S.G. Chaudhary under Section 438 read with Section 482 of Cr.P.C. for quashing C.R. No. 1 of 1995. The said petition was filed in March, 1995.

(vii) Misc. Criminal Application No. 1367 of 1995 in Special Criminal Application No. 436 of 1995 was filed by Tarachand Manumal Sindhi and another against the State of Gujarat.

9. In all these cases the petitioners who are original accused in Case 1 of 1995 and were heard with present PIL therefore all these matters right from beginning were placed before the Division Bench and the Division Bench admitted the matters and passed orders from time to time. However, it appears that on 17.10.1998 Division Bench of this Court (Coram: S.M. Soni and R.R. Jain, JJ) while hearing Misc. Criminal Application No. 5722 of 1994, it was pointed by the petitioners in that petition that the petitioners have only prayed for quashing and setting aside the registration of offence in C.R. No. 1 of 1995 filed before the Baroda Court and there is no contempt application filed and therefore all these cases may be placed before the learned Single Judge.

10. It appears that in view of this order dated 17.10.1998 all the matters were placed before the learned Single Judge Mr. Justice N.N. Mathur and thereafter the matters were admitted by Mr. Justice N.J. Pandya, learned Single Judge, in July, 1997 and ultimately in August, 1997 the learned Single Judge heard all these matters along with the Public Interest Litigation matter.

11. The learned single Judge, after considering various submissions, delivered judgment and order dated 14.8.1997 in Misc. Criminal Applications Nos. 5722 of 1994, 751, 933, 1365 and 1367 of 1995 with Special Criminal Applications Nos. 372, 436 and 527 of 1995 and 13258 of 1994. The said judgment is reported at 1997 (3) GLR p. 2501 in the case of Miteshchandra Manilal v. State of Gujarat.

12.1 So far as the present PIL is concerned, in paragraph 21, at page 2506, the Court observed as under: [(1997) 38(3) GLR p.2506]

"Para - 21. So far as petition No. 13258 of 1994 is concerned, it was being contested by the Party-in-person. Unfortunately during the pendency of the petition, the Party-in-person i.e. the petitioner expired. However, since the matter is tied up along with the aforesaid other matters, and the facts being also similar, this petition also shall meet with the fate of other petitions.

In paragraphs 18, 20 and 22, after referring to Section 195 and Section 340 of Cr.P.C., the Court passed the final order, which reads as under (2506):

"Para 18 - The result, therefore, is that according to these various judicial pronouncements, the power either of the Court to proceed or that of the police authorities to take cognizance, will clearly be barred unless procedure under Section 195 read with Section 340 is implemented in its entirety.

Para 20 - In the case, in form of these petitions, it is clearly the position that by filing different complaints, pursuant to an alleged conspiracy, by different persons impersonating as persons other than who they are, processes were got issued and the different alleged offences in the said two complaints have thus been committed. It is obvious that the different alleged offences are the result of one and the same transction or in course of the same transaction. As per the aforesaid different judicial pronouncements, there might either be, overlapping or it will be so interconnected or interwoven that they cannot be separated. Obviously, therefore, neither the police station at Dakor nor the C.I.D. Crime, Baroda could have taken cognizance of the complaint, as done by them, because that action will be hit by Section 195 Cr.P.C. read with Section 340 thereof."

"Para - 22. The petitions are, therefore, allowed. Both the complaints are quashed and cognisance of offence taken by the respective police stations is set aside. As a consequence, the charge sheet that has been filed in the matter covered by Misc. Criminal Application No. 5722 of 2994 in C.R. No.I 211 of 1994 shall also stand set aside. Rule, in all matters, is made absolute accordingly".

13. Being aggrieved and dissatisfied with the said judgment Mr. Galani, applicant, who was not party to the original proceedings filed Special Leave Petition (Cri.) Nos. 3623-3628 of 1997 before the Hon'ble Apex Court with an application for permission to file the Special Leave Petition as the applicant was not a party to the proceedings before this Court. The Honourable Supreme Court admitted both the SLPs and admitted the appeal of the applicant.

14. Before the Hon'ble Supreme Court Savjibhai Ghemarbhai Chaudhary, Police Inspector- Investigating Officer, filed counter affidavit on behalf of respondent No. 3 dated 9.1.1998. Along with the said affidavit he has annexed report filed by C.I.D. dated 13.1.1995, 31.1.1995, 14.2.1995, 28.2.1995, 21.3.1995 and 27.3.1995. It may be noted that Mr. P.C. Pande, Additional Director General of Police also filed affidavit dated 11.11.1998 before the Hon'ble Supreme Court and stated that one Kanubhai Somabhai who filed SCA No. 527 of 1997 was a fictitious person.

14.1 It may be noted that in all criminal petitions filed before the High Court the petitioners before the High Court became respondents before the Hon'ble Supreme Court in appeal filed by the applicant. Though the Special Leave Petition was filed by the applicant and further affidavit is filed by the Police Officers, as indicated above, the then respondents did not file any affidavit before the Hon'ble Supreme Court controverting the contention of the applicant as well as the Police Officers.

14.1A It may be noted that during the pendency of these proceedings before the Hon'ble Supreme Court, one more development took place namely the applicant has filed an application for seizure of all the records relating to 10 cases. The said application was filed on 15.4.1998 along with supporting affidavit. In the said application the Hon'ble Supreme Court by its order dated 27.4.1998 was pleased to direct the Registrar of the Gujarat High Court to ensure that the records of all the aforesaid 10 cases be kept in proper custody of the Registry.

14.2 Thereafter, the matter was heard by the Hon'ble Supreme Court and in November 1999 the Hon'ble Supreme Court allowed the appeal filed by the applicant. The said judgment is reported as Manohar M. Galani v. Ashok N. Advani and Anr. in JT 1999(9) SC 142 = (1999(8) SCC 737). In para 4 on page 146 (of JT) (page 740 of SCC) the Hon'ble Supreme Court has observed as under: "So far as the public interest petition is concerned, not only the counsel for both sides agreed that the same ought not to have been set aside but we also fail to understand how the High Court in exercise of its power under extraordinary jurisdiction can interfere with a co-lateral proceeding initiated by the High Court itself in an application in public interest. There cannot be any dispute that the facts revealed a serious scandal in the functioning of some subordinate Court in the State of Gujarat and, therefore, the High Court took cognizance of the matter and directed inquiry to be conducted, and on the basis of the said inquiry, it was open for the High Court to issue necessary directions and at that stage the impugned order has emanated. In our considered opinion, the order in the impugned judgment setting aside the aforesaid public interest petition is erroneous and we, therefore, set aside the said order and direct that the public interest petition should be considered by the High Court on merits on the basis of the reports submitted to the Court and appropriate directions be given whatever the Court thinks fit."

14.3 In para 5 on page 741 of the said judgment the Hon'ble Supreme Court has further observed thus:

"So far as the quashing of the complaints and inquiry on the basis of FIR registered by the complainant are concerned, we also find that the High Court was not justified in interfering with the same and quashing the proceedings by an elaborate discussion on the merits of the matter and in coming to the conclusion that Section 195 of the Code of Criminal Procedure will be a bar. In our opinion, it was rather premature for the High Court to come to the aforesaid conclusion and on account of the orders passed, the investigation into several serious allegations are being throttled. We, therefore, set aside the orders quashing the two complaints and the investigation made thereunder and direct that those cases may proceed in accordance with law."

15. AFTER SUPREME COURT REMANDED MATTER, FURTHER PROGRESS OF THE MATTER

15.1 After the Hon'ble Supreme Court remanded the matter, during the pendency of the proceedings, the applicant had filed a chart as per the directions of this Court on 28.1.2004. The CID (Crime) also filed further report conducted till 21.2.2004 by CID Crime, Gujarat, in C.R. No. 1/1995. The CID Crime has shown progress of various matters which has been stated earlier. The CID Crime filed further report conducted till 31.7.2004 by CID, Crime, Gujarat, in C.R. No. 1 of 1995 registered at CID Crime, Baroda Zone Police Station. The said report was filed on 3.8.2004.

15.2 It may be noted that, during the present public interest litigation, Mr. Padiwal who was the petitioner as well as advocate expired on 1.5.1997. It may be noted that, earlier, the learned single Judge dismissed the petition on the ground that the petitioner has expired. Thereafter, the matter went to the Supreme Court and the Supreme Court directed the PIL to be heard on merits after considering the reports of the police. That is how this Court has heard the matter at great length.

16. EFFECT OF DEATH OF MR. PADIWAL BOTH IN CAPACITY AS PETITIONER AS WELL AS ADVOCATE OF THE PRESENT MATTER WHAT IS MEANT BY PIL -

16.1 Mr. Pardiwala, learned advocate for High Court, submitted that PIL which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses who constitute the low visibility area of humanity is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. PIL is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violation of constitutional or legal rights of large numbers of people who are poor, ignorant, or in a socially or economically disadvantaged position should not go unnoticed or unredressed. Any act on the part of anybody and most importantly a Judicial Officer or any member of the fraternity of legal profession which would tarnish the image of judiciary and the legal profession also cannot be pardoned or tolerated. PIL is essentially a cooperative or collaborative effort on the part of the petitioner, the State, or public authority and the Court to secure observance of the Constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them, make all possible endeavours to protect the decorum and dignity of judiciary and the noble profession of law by dealing appropriately with all those elements who may even think of tarnishing the image of judiciary and the noble profession of law in any manner. Considering the nature of the PIL, scope of PIL, powers of the court couple with duty in such type of petitions, it would hardly matter if unfortunately the petitioner who had filed the PIL passes away during the pendency of the petition and the petition is to be heard in the absence of the petitioner. It is therefore submitted that late Shri Padiwal played a role of a public spirited citizen and an informant to this Court highlighting a scandal of the nature as described. It is, therefore, the duty of the Court to look into the matter and do the need. Therefore, the petition will have no effect on account of the sad demise of late Shri Padiwal.

16.1A As this petition raises important question regarding standards of judiciary as well as standards of advocates and regarding ventilating the case of fake and bogus warrant. Therefore even in absence of Mr. Padiwal, this petition can be continued and this Court decided to continue the petition and exercise suo motu power.

16.2 Initially, when the matter started, the Court realised that Mr. Padiwal is no more and whether the Court should appoint any advocate as amicus-curiae in place of Mr. Padiwal. However, it may be noted that, on behalf of the applicant, learned advocate Mr. S.V. Raju appeared, learned advocate Mr. J.B. Pardiwala appeared on behalf of the High Court, learned advocate Mr. G.D. Bhatt appeared on behalf of the Bar Council of Gujarat, Mr. Arun Oza, learned GP, appeared on behalf of the Government, Mr. Anandjiwala appeared on behalf of Tarachand Lalwani. In view of this, this Court has decided not to appoint any advocate as amicus-curiae in place of Mr. Padiwal, because the Court received sufficient assistance from all the abovenamed learned advocates. If this Court appoints any advocate as amicus-curiae in place of Mr. Padiwal, that will further delay the matter. However, with a view to see that the Court gets appropriate assistance in resolving all these vexed and complicated questions, this Court has decided and requested Mr. S.N. Shelat, learned Advocate General, in his personal capacity, to assist the Court as amicus curiae in place of Mr. Padiwal. Shri S.N. Shelat, learned Advocate General, has readily agreed for the same. We have noted down his submissions also at the appropriate place. Therefore, in view of the same, no advocate is appointed as amicus-curiae in place of Mr. Padiwal.

FURTHER DEVELOPMENT OF THE PRESENT MATTER AFTER SUPREME COURT REMANDED THE MATTER:

17. It appears that because of the judgment of the Hon'ble Supreme Court, records of the 10 false cases had been sent by the Registry of this Court back to various District Courts. An application was filed by the applicant on 11.7.2002 before the Registrar of this Court pointing out the error and praying for a recall of the original papers of the 10 cases, pending enquiry before this Court.

17.1 On the basis of the aforesaid application filed by the applicant this Court by its order dated 2.9.2002 issued a notice to the applicant requiring him to support his case as made out in the representation dated 11.7.2002. In the meantime, the original case papers of 10 false cases filed against the applicant were received by this Court.

17.2 It appears that the applicant thereafter filed an application for impleading him as a necessary party in Special Civil Application No. 13258 of 1994. The application was numbered as Civil Application No. 8781 of 2002 in Special Civil Application No. 13258 of 1994. The said Civil Application was placed for hearing before a Division Bench of this Court on 16.7.2003. The Division Bench of this Court by its order dated 16.7.2003 was pleased to observe that since notice was issued on 2.9.2002 to the applicant Mr. Manohar Mangaram Galani, applicant, to appear and support his representation dated 11.7.2002, the name of the learned counsel should be shown on the board as appearing for the applicant in this petition whenever it is listed on board. In this view of the matter, it is not necessary to implead the applicant of Civil Application No. 8781 of 2002 as party respondent in the main petition which is a P.I.L. Accordingly, the Civil Application was disposed of.

17.3 The applicant states that being aggrieved and dissatisfied with the said order, a Special Leave Petition bearing No. 23720 of 2003 was filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court by its order dated 6.1.2004 was pleased to issue notice to the respondents. However, no further orders have been passed by the Supreme Court in this regard.

18. CONTENTION OF MR. S.V. RAJU, LEARNED ADVOCATE FOR THE APPLICANT:

18.1 Mr. S.V. Raju, learned counsel for the applicant is permitted to argue in this matter on behalf of the applicant in view of the order of the Division Bench.

SUBMISSION OF LEARNED ADVOCATE ON THE BASIS OF THE REPORT SUBMISSION OF LEARNED ADVOCATE ON THE BASIS OF THE REPORT OF CID (CRIME)

18.2 The learned advocate for the applicant has stated that various criminal complaints filed against the applicant and his family members show that those persons have completely abused the process of law. He submitted that all the proceedings which have been initiated against the applicant and his family members are bogus and it is not his submission but the reports of the CID Crime which have been submitted before this Court also confirm the said fact.

18.2A To substantiate the aforesaid contentions, the learned counsel for the applicant has invited my attention to the reports submitted by the CID Crime, from time to time. Relying on the aforesaid reports, he has made the following submissions:

18.3 During pendency of the petition, Police Inspector, CID Crime, Vadodara, pursuant to the order of this Court dated 20.12.1994, filed a report in the matter of investigation of Dakor Police Station CR No. 211 of 1994. The said report has been taken on record at pages 92 to 100. It appears that, after the said report was filed on 13.1.1995, this Court further directed the CID Crime Branch to enquire into other incidents of bogus warrants issued by various other Courts in the State. Thereafter, the applicant was called and his complaint was recorded. Pursuant to that, the CID Crime filed another report dated 31.1.1995.

18.4 CID Crime further investigated into the matter and, thereafter, filed further report dated 14.2.1995 in the said Dakor incident and statements of Kamboja, Advocate, and other persons were recorded.

18.5 It may be noted that hearing of the aforesaid matter was fixed on 14.2.1995. On that day, in the midst of hearing, one Mrs. Leena Mehta, Professor of M.S. University, and her husband, prepared one application and produced before this Court. Thereafter, the Court directed the CID Crime to enquire into the matter and they have filed report dated 28.2.1995. It is stated that Mrs. Leena Mehta is a Professor in M.S. University, Baroda and her husband Mr. Vihang Mehta is a Purchase Manager in I.P.C.L., at Baroda. As per their oral statement, they had a financial dispute with a building contractor to whom they had engaged for building a house. That contractor in order to extort money from them filed false complaints of theft etc. against them at various police stations at Baroda with the help of advocate, Mr. Gopal Ramani of Baroda and harassed them but could not succeed in extorting money and,hence, filed another false complaint at Ulhasnagar through advocate Mr. Gopal Ramani and advocate Mr. Ashok N. Advani. In the report it is stated that both were forced to go to Ulhasnagar to attend the court leaving their small children alone at home. At Ulhasnagar, they were threatened by advocate Ashok N. Advani that if they do not agree the demand of the said contractor, they will be murdered at Ulhasnagar. Mrs. Leena Mehta was weeping while narrating her facts. Mr. Chaudhary thereafter left his residential and office telephone number with them to give him more details about the said tragedy. It may be noted that CID Crime also filed further report dated 28.2.1995 regarding issue of warrants on bogus complaints (106 to 109).

18.6 It may be noted that the CID (Crime) filed another detailed report dated 21.3.1995 in connection with C.R. No.I-211 of 1994. In that report he has referred to various proceedings taken by various persons against the applicant and his family members. From this report it reveals that there was a conspiracy to harass the applicant and his family members by filing criminal complaints in the State of Gujarat.

18.7 The said report was also accompanied by a report of 27.3.1995 and along with the said introduction, gist of relevant documents was also annexed. The said report dated 27.3.1995 was also signed by Mr. P.G.J. Nampoothiri, Addl. DG of Police (Crime), Gujarat State, Ahmedabad in which he has also given details of bogus proceedings initiated against the applicant and his family members. In the said report, the police submitted details of C.R. No. 211 of 1994 and C.R. No. 1 of 1995 registered at C.I.D. Baroda Zone Police Station and details of various other cases filed against the applicant, namely, Criminal Case Nos. 11 of 1994, 337 of 1994, 102 of 1994, Enquiry Case No. 6 of 1994, Criminal Case No. 1099 of 1994, Enquiry Case No. 3 of 1994, Criminal Case No. 288 of 1994. The police took statements of various persons and indicated that the whole conspiracy was hatched to harass the applicant and his family members by filing various criminal cases. The report also indicated the incident of Leena Mehta.

18.8 It appears that during the pendency of these proceedings it appears that the Investigating Officer Dinesh B. Barvalia filed further interim report before this Court in C.R. No. 1 of 1995 on 25.2.2004 and submitted detailed investigation of each of the 10 cases filed against the applicant and his family members by the persons accused in the FIR as totally false and bogus. In his report in para 3 it is stated thus:

18.9 In examination of various persons and the many of the accused in this case has revealed that:

(A) All the ten cases filed against Shri Manohar M. Galani, applicant, and his family members by the persons/accused in the FIR, being 1/1995, were cases which are totally false.

(B) The cases filed against Galani family have been filed in connivance with the accused and the advocates and some police officers. In some cases, the role of the Magistrates and its staff is also under cloud as the proper procedures were not followed.

(C) The complainant in some cases are also shown as witnesses in some other cases. From this, it is clear that the same set of people were involved in filing of these 10 cases.

18.10 The Investigating Officer Dinesh B. Barvalia further filed further report before this Court on 3.8.2004 stating about the progress in C.R. No. 1/1995 and submitted before this Court that all the 10 cases filed against the applicant and his family members were false and frivolous.

18.11 In examination of the various persons and many of the accused persons, in this case, has revealed that:

(A) The criminal conspiracy to file 10 false cases against Mr. Galani and his family members was hatched by the accused persons at the place of an advocate Gopal Ramani from Baroda who is found to be the mastermind behind the filing of said false cases. The conspiracy was hatched in the presence of 13 accused persons. Investigation has revealed that at the time of conspiracy, the main accused Kishore Kakumal Keswani (now absconding) paid a sum of Rs. 1,00,000/- (Rupees one lakh) to advocate Gopal Ramani for filing various false cases against Mr. Galani and his family members. The conspiracy was executed with the help of one Bharat Daulatram Bhojwani, of Dabhoi, Baroda, who is found to be the main link in filing all the 10 false cases, managing different persons to be the complainants, collecting warrants from various courts and accompanying police teams to execute the said warrants against Galani family.

18.12 In para 3(E) the Investigating Officer has named certain advocates, police personnels, Civilians, Magistrates/Court Staff who were also parties to connivance with the accused and filed criminal cases against the applicant and his family members.

18.13 The learned advocate for the applicant has relied on various reports of CID Crime which I have referred to earlier to demonstrate that various persons have filed various criminal complaints against the applicant and his family members and completely abused the process of law. He submitted that all the proceedings which have been initiated against the applicant are bogus have been confirmed by the report of the CID Crime.

18.14 Mr. Raju, learned counsel, therefore, submitted that the effect of these reports is that all the complaints which have been filed were bogus and concocted. In support of the same, he submitted the following facts which are emerged from various criminal cases along with the reports of the CID Crime.

18.15 The learned counsel for the applicant has submitted that all the cases which have been filed against the applicant was bogus and false. As regards A.M. Case No. 1 of 1994, it was filed by one Tarachand Manumal Lalwani before the learned Judicial Magistrate First Class, Dabhoi, Dist. Baroda for the offences under Section 143, 394, 397 of the IPC. Advocate involved was Khalid Hussain Ibrahim Kadia. It has been alleged that the said offence took place on 14.1.1994 in the railway at about 2 O'clock. In the said complaint it is alleged that the complainant had left Dabhoi and as they had some civil dispute regarding money they decided to settle the same and therefore they travelled on train. It has been alleged by Tarachand Manumal Lalwani, accused in that case that the applicant and his brother Dev Mangharam Galani forcefully snatched the golden chain weighing about two tolas and one writ watch and broke it out from the neck and wrist and the father of the applicant showed a gun and he was to kill them. Ultimately, at station Mandada they stepped down and went away. It was stated that the said incident took place on 14.1.2004. However, the complaint has been filed on 19.1.2004. In that case it is also stated that the learned Magistrate thought the investigation to be done by Divisional Controller, Ahmedabad. However, the learned counsel for the applicant stated that as the accused and all other persons have managed with the Baroda Division for investigation though the learned Magistrate's order for further investigation by Ahmedabad Division and they have played fraud with the order of the Court and it has been mentioned that the Baroda Division should investigate the said crime. He therefore submitted that the authority thus played fraud with the record of the case.

18.16 The learned advocate has further submitted that from the report dated 25.2.2004 submitted to this Court clearly shows complaint of Tarachand Manumal Lalwani has been recorded wherein the said Tarachand Manumal Lalwani has stated that he is not aware of the contents of the complaint and that he does not know any one from the family of the applicant and that no such crime was committed as is stated in the complaint. He has further stated that under pressure from one Bharat Daulatram Bhojwani, he signed on the complaint. The CID, Baroda, has also recorded the statements of Smt. Suman Lalwani, wife of the said Tarachand Lalwani who had also admitted and stated in her statement that they lived in indigent circumstances and that her husband never possessed any golden chain or wrist watch as mentioned in the complaint of dacoity filed by her husband Tarachand. She further stated that they never stayed at village Kothara (address given in the complaint is Kothara village). She further confirmed that her husband had filed the said complaint on the instructions from Bharat Bhojwani. The C.I.D. has recorded the statements of two brothers of Tarachand Lalwani who have corroborated the statement given by wife of Tarachand.

18.17 Learned counsel for the applicant further stated that the C.I.D. Crime has made an extensive and diligent inquiries and in that inquiry the Investigating Officer has recorded the statements of independent witnesses and persons like Guard of the Train, ticket, checker, Engine Driver and Station Master of Mandala Station, Sarpanchs of village Kothara and Manadala who have not supported or corroborated the false claim of the aforesaid Tarachand with regard to the alleged incident of dacoity and they have clearly stated that no such incident of dacoity ever took place.

18.18 He further stated that the police personnel from Dabhoi Railway Police station who had registered the aforesaid and bogus case of dacoity at the instance of the Tarachand Lalwani have not cared or bothered to examine any independent person or record statements of such independent persons during the course of investigation. It is also stated that the alleged offence took place on 14.1.1994 at 1.40 p.m. whereas the fact is that on 14.1.1994 at 11.50 a.m. the sister of the applicant Pushpa M. Galani was present at the Central Police Station, Ulhasnagar, Maharashtra (about 500 kilometers away) as per the directions issued by Bombay High Court. Therefore, it is clear that the case filed by Tarachand Manumal Lalwani is false and imaginary. It is also stated that the persons like Guard of the train, Ticket Checker, Engine Driver and Station Master of Mandala Station have not supported the false claim of Tarachand with regard to the alleged incident and they have stated that no such incident of dacoity ever took place.

18.19 Learned counsel for the applicant has therefore submitted that all these cases which have been initiated against the applicant and his family members are false and bogus and therefore, they are to be quashed and set aside by this Court. He has submitted that all the cases which have been filed against the applicant and his family members are required to be quashed and set aside as they demonstrate gross abuse of process of law. In support of the same, the learned counsel has cited the following judgments:

18.20 The learned counsel for the applicant has submitted the following facts:

(i) The applicant and his family members have no previous criminal record and no criminal or civil cases have been filed against them anywhere in India prior to the ten cases filed at the behest of Mr. Kishore Keswani and his accomplices.

(ii) A perusal of the complaints would show that the offences complained of against the applicant and his family members were all allegedly committed between the period December 1993 and April 1994. It is submitted that thus, prior to December, 1993 not a single case was registered and suddenly from December, 1993, the entire family is said to have committed the offences detailed in the ten false cases filed against them.

(iii) A perusal of the complaints would further show that the complainant in one case is a witness in another case, and that the applicant and his family members are alleged to have committed two offences at two different places on the same date, and around the same time, which, in the humble submission of the applicant, is totally unbelievable.

18.21 The learned counsel further submitted that a perusal of the investigation undertaken by the C.I.D. (Crime), Gujarat, as directed by this Court, and the reports submitted to this Court would establish that:

(a) The address of the complainants in the complaints, filed against the applicant and his family are false and bogus and many of the complainants were found not to exist on the given address.

(b) Similar other cases of the false prosecutions being launched against other persons to settle civil disputes in Gujarat had come to light during the course of enquiry.

(c) The investigation has clearly revealed and unearthed the criminal conspiracy hatched at the place of one advocate Gopal Ramani of Baroda in the presence of 13 persons in the month of December, 1993 to file false cases against the applicant and his family members and for which Kishore Kakumal Keswani paid a sum of Rs. 1,00,000/- (Rupees one lakh) to said advocate Gopal Ramani.

18.22 Contention regarding harassment meted out to the applicant by filing various Criminal Cases launched against the applicant and his family members which I have referred to earlier -

18.22A The learned advocate appearing for the applicant has contended that all the criminal matters which were initiated by Kishore Keswani and others, about ten matters, details of which I have referred to earlier, were bogus. He has submitted that the cumulative effective of those ten criminal proceedings is as under. He submitted that is how the applicant and his family members were harassed.

18.23 On 3.1.1994, the Police Sub-Inspector Shri Mansukh of the Central Police Station, Ulhasnagar, came to the residence of the applicant and produced a bailable warrant issued by the learned Magistrate, at Dakor, District Kheda, in Gujarat, bearing Criminal Case No. 1099 of 1993 under Sections 420 and 114 of IPC. As the applicant was able to produce a surety, he was released on bail. The learned advocate for the applicant has further submitted that, however, immediately thereafter, the applicant was rearrested on the basis of an offence registered at the Central Police Station, Ulhasnagar vide C.R. No.I-220 of 1993 on a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 of the IPC, filed by Kishore Keswani. As the applicant was arrested, he was produced before the Magistrate on 4.1.1994 when he was remanded to police custody for a day and finally released on bail on 5.1.1994.

18.24 The learned advocate for the applicant has further submitted that, to the utter surprise of the applicant and his family members at about 6.30 a.m. on 19.3.1994, Police Sub-Inspector, G.S. Patel, Ahmedabad City, Crime Branch, along with four constables and a lady constable escorted by Kishore Keswani, Dunichand Makhija, Sudershan Motwani, Kamal Bathija, Bharat Bhojwani, came to the applicant's residence and arrested the applicant, his father, younger sister Pushpa on the basis of a forged non-bailable warranted which was said to be returnable on 22.3.1994. The said warrant was alleged to have been issued on a complaint filed by Tehalram Kishanlal Ramani under Section 323, 504 and 506(1) of the Indian Penal Code which was numbered as Criminal Case No. 337 of 1994 in the Court of Judicial Magistrate, First Class, Padra, District Baroda. The applicant and his family members were handcuffed and taken from their house in Ulhasnagar, Maharashtra, to Padra, District Baroda, in a private Matador Van bearing no. GJ 6 T 9536.

18.25 The learned advocate for the applicant has further submitted that on reaching Padra on 19.3.1994 at about 10.30 p.m. the matador van was parked inside the compound of police station at Padra, which adjoins the residence of the Judicial Magistrate, Padra, where the applicant, his father and his brother-in-law Shri Inder Kukreja, who had accompanied them to Padra for securing a bail were served with bailable warrants allegedly issued by the 18th Mirzapur Court, Ahmedabad, in Criminal Case No. 288 of 1994 requiring them to appear in Ahmedabad on 29th March 1994.

18.26 It is submitted that, on 19/20.3.2994, (i.e. 19th night 20th early morning) as soon as the applicant and his family members obtained bail from Padra Court and they came out of the residence of the JMFC, at about 12 midnight on the night intervening 19th/20th of March 1994, the same Police Inspector, G.S. Patel, who had brought the applicant's family to Padra, again arrested the applicant on the basis of a non-bailable warrant issued by the Court of Jamkhambalia, District Jamnagar, Gujarat, on the basis of Enquiry Case No. 3 of 1994 filed before the Court of the JMFC, Jamkhambalia, District Jamnagar, Gujarat, for the alleged offences under Sections 363, 406, 420, 354, 506 and 114 of the IPC alleged to have been committed on 6.2.1994. The applicant on the same day was taken to Jamkhambalia, District Jamnagar, Gujarat.

18.27 At the same time, the applicant's father, younger sister Pushpa and brother-in-law Shri Inder Kukreja were arrested and handcuffed again by the Dabhoi Railway Police who were waiting in advance outside the residence of the Judicial Magistrate, Padra, District Baroda, in connection with a complaint registered at Dabhoi Railway Police Station, Dabhoi, Baroda, for the offences under Sections 143, 394, 397, 398 of the Indian Penal Code alleged to have been committed on 14.1.1994 at 1.45 p.m.

18.28 It may be noted that, in view of the aforesaid proceedings, Ms. Pushpa Galani moved the Bombay High Court on 7.1.1994 for anticipatory bail which was granted on 7.1.1994 with directions to attend the Central Police Station from 8.1.1994 to 14.1.1994 between 10 a.m. and 12 pm for investigation. The applicant and his sister regularly attended the Central Police Station during these days including on 14.1.1994.

18.29 The learned advocate for the applicant has further submitted that this complaint was registered as M.Case No. 11/94. It is relevant to note that on the date when the accused were said to have committed this offence (i.e. on 14.1.1994), they were present for investigation at the Central Police Station, Ulhasnagar, under the orders of the Bombay High Court dated 7.1.1994. At this stage, it is also pertinent to mention that the accused and the applicant are also said to have committed another offence at Padra (on 14.1.1994), District Baroda, at 12 noon on a complaint registered as Criminal Case No. 337 of 1994 before the JMFC, at Padra, under Sections 323, 504 and 506(1) of IPC.

18.30 On 20.3.1994 the police party along with the applicant who was handcuffed reached Ahmedabad some where No. 20.3.1994 and was lodged in the police lock-up at Ahmedabad Crime Branch for the whole night and on the next day he was taken to Jamkhambalia where he was kept in the police custody for the whole night as the Judicial Magistrate, Shri M.D. Vakil directed the police officers to produce the applicant before him in the morning.

18.31 On 22.3.1994 the applicant's father, sister and brother-in-law were released on bail by the Judicial Magistrate, Dabhoi, District Baroda, after which they left Dabhoi immediately out of fear of being arrested in some other case.

18.32 On 29.3.1994 when the applicant visited Ahmedabad to appear before the Mirzapur Court at Ahmedabad, in response to a warrant issued on the basis of Criminal Case No. 288 of 1994, he saw that instead of the alleged complainant Kanubhai Somabhai, the accomplish of Mr. Kishore Keswani, Mr. Bharat Bhojwani was present and was representing himself as the complainant. On seeking the applicant, he immediately rushed to the Railway Police Station, Ahmedabad, and brought along with him the policemen who arrested the applicant in connection with M. Case No. 11 of 1994 registered at the Dabhoi Railway Police Station, Baroda, as an FIR on the basis of an order to investigate under Section 156(3) of the Code of Criminal Procedure by the Judicial Magistrate First Class, Dabhoi. The applicant was detained at the police station for six to seven hours. Thereafter, at about 9.15 p.m. the applicant was handcuffed and taken to Baroda by train where they reached at about 11.15 p.m. At the Baroda railway station, the police sub-inspector, Shri Sarania of Dabhoi Railway Police Station, was present with police constables Jabir Shaikh and Bharat Bhojwani. From there, the applicant was taken in private matador van No. GJ 6T 9536 to Dabhoi, Baroda, where the applicant was detained in the police station at Dabhoi.

18.33 On 30.3.1994 Shri Kishore Keswani came to Dabhoi where in the presence of the police officers he declared that there were 16 cases which he had filed against the applicant and his family and that there were cased filed against them in various courts in Punjab and Assam from where he had obtained warrants against the entire family.

18.34 Thereafter, the applicant was produced before the Judicial Magistrate, Dabhoi at his residence at about 7.30 p.m. and was remanded to judicial custody for one day and was released on bail on 31.3.1994 on sureties being arranged by Bharat Bhojwani an accomplice of Kishore Keshwani from Ulhasnagar.

18.35 The learned advocate for the applicant has further submitted that this clearly demonstrates that the prosecution launched by Kishore Keshwani and others against the applicant and his family members is absolutely concocted and bogus in this behalf.

CASE LAWS:

18.36 The learned counsel for the applicant therefore submitted that the above facts along with the reports of CID Crime clearly show that there is gross abuse of process of law. In support of the contention that there is a clear abuse of process of law this Court must quash and set aside all the ten proceedings initiated against the applicant and his family members, he has relied on the judgment of the Hon'ble Apex Court in the case of Delhi Judicial Service Association v. State of Gujarat reported in (1991) 4 SCC 406. As this case has been relied by learned counsel Mr. Raju, Mr. Pardiwala and the learned Advocate General Mr. S.N. Shelat, I point out the facts of this case.

18.37 In this case the Hon'ble Supreme Court was concerned with the incident took place in the town of Nadiad, Dist. Kheda. The Police Officer, Nadiad arrested, assaulted and handcuffed Mr. N.L. Patel, Chief Judicial Magistrate, Nadiad and tied him with a thick rope. In view of the same, the Hon'ble Supreme Court appointed Mr. Justice R.M. Sahai, senior Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit report to the Court. Justice Sahai was appointed to hold the inquiry on behalf of the Hon'ble Supreme Court and not under the provisions of the Commission of Inquiry Act. Justice Sahai visited Nadiad and held sittings there. He has allowed to file their affidavits/statements and ultimately he has recorded his finding. The Hon'ble Supreme Court in para 6 of the judgment in this behalf observed as under:

18.38 "Since there was serious dispute between the parties with regard to the entire incident, the Court appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit report to the Court. Justice Sahai was appointed to hold the inquiry on behalf of this Court and not under the provisions of the Commission of Inquiry Act. Justice Sahai visited Nadiad and held sittings there. The learned Commissioner/Judge invited affidavits/statements, and examined witnesses including S.R. Sharma the Police Inspector, D.K. Dhagal, DSP and other police officers, lawyers, N.L. Pate, CJM, and doctors and other witnesses. Justice Sahai afforded full opportunity to all the concerned persons including the State Government, Police Officers and lawyers to lead evidence and to cross-examine witnesses. He submitted a detailed Report dated November 28, 1989 to this Court on December 1, 1989. On receipt of the Report this Court directed copies to be delivered to concerned parties and permitted the parties and the contemners to file their objections, if any, before this Court. The objections were filed by the police officers and the contemners disputing the findings recorded by the Commissioner."

18.39 After the said finding was recorded, the same was placed before the Hon'ble Supreme Court and after that the Hon'ble Supreme Court has also issued notice to the Police Officers, State of Gujarat and other officers. All officers have filed their affidavits. After hearing and considering of the objections on the basis of the report which has been submitted by Mr. Justice Sahai, the Hon'ble Supreme Court has come to the conclusion of certain facts which have been narrated in para 10 of the judgment of the Hon'ble Supreme Court on pages 426-430. Ultimately, the Hon'ble Supreme Court in para 47 on page 460 of the judgment was pleased to observe as under:-

18.40 "This takes us to the petition filed by N.L. Patel for quashing the criminal cases initiated against him on the basis of two first information reports made by Police Inspector S.R. Sharma. As noticed earlier Sharma, Police Inspector, had registered two FIRs on September 25, 1989 against N.L. Patel for the offences under Section 85(1)(3) read with Section 66(1)(b) and also under Section 110 of Bombay Prohibition Act on the allegations that Patel had consumed liquor without permit or pass and under the influence of alcohol entered into Sharma's Chamber and behaved in an indecent manner. The FIR further alleged that Patel caught hold of Police Inspector Sharma and slapped him.The second FIR was lodged by Sharma against Patel for offences under Sections 332, 353, 186 and 506 of the Indian Penal Code on the same allegations as contained in the earlier FIR. During the pendency of the contempt proceedings before this Court, the police continued the investigation and submitted charge sheet in both the cases against N.L. Patel and at present Criminal Cases Nos. 1998 of 1990 and 1999 of 1990 are pending in the Court of Chief Judicial Magistrate, Nadiad. These proceedings are sought to be quashed."

Again in para 48 on page 461 of the said judgment the Hon'ble Supreme Court was pleased to observe as under:

18.41 (para 48)"The Commission's as well as our findings clearly demonstrate that the allegations contained in the two FIRs are false. If police is permitted to prosecute Patel on those allegations merely on the basis that charge sheets have been submitted by it, it would amount to gross abuse of the process of the Court. In the circumstances, proceedings against N.L. Patel are liable to be quashed."

18.42 It may be noted that in this case the Hon'ble Supreme Court has exercised its power under Article 142 of the Constitution of India.

18.43 The learned counsel for the applicant has also relied on another judgment of the Hon'ble Supreme Court in the case of B.C. Chaturvedi v. Union of India and Others reported in (1995) 6 SCC 749 and submitted that this Court must give a complete justice.

18.44 The learned advocate for the applicant further relied upon the judgment of the Apex Court in the case of Pepsi v. Sub Judicial Magistrate, AIR 1998 SC 128. In that case, the allegation was that the complainant was sold bottle of beverage under brand 'Lehar Pepsi' which was adulterated. The bottle was purchased by the complainant on September 13, 1993. The learned Magistrate passed orders summoning the appellant (M/s. Pepsi Foods Ltd) and others on May 9, 1994. The appellants, therefore, approached the High Court of Judicature at Allahabad by way of a writ petition. The said writ petition was dismissed by the Division Bench of High Court of Judicature at Allahabad (Lucknow Bench). Being aggrieved by and feeling dissatisfied with the said order, the appellant approached the Supreme Court for quashing the complaint. In paragraph 26, at page 135, the Supreme Court considered the powers of the High Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. In paragraph 28, at page 135, the Supreme Court observed as under:

18.44A "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

18.45 In paragraph 30, at page 137, the Supreme Court observed as under:

"Para - 30. It is no comfortable thought for the appellants to be told that they could appear before the Court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the Courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Arts. 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view, High Court should not have adopted such a rigid approach which certain has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."

18.46 The learned counsel has also relied on the judgment of the Hon'ble Supreme Court in the case of Vijay Shekhar and Anr v. Union of India reported in (2004) 4 SCC 666 where the Hon'ble Supreme Court has held that when there is a fraud in the proceedings then after considering various decisions in para 11 and 12 the Court has observed as under:

"para 11 - Thus, it is clear that a fraudulent act even in judicial proceedings cannot be allowed to stand.

para 12 - In view of our finding that the complaint filed before the Court of Metropolitan Magistrate, Court No. 10 at Ahmedabad in Criminal Case No. 118 of 2004 dated 15.1.2004, is ex facie an act of fraud by fictitious person, and an abuse of the process of court, every and any action taken pursuant to the said complaint gets vitiated. Therefore, we think the complaint registered before the Metropolitan Magistrate, Court No. 10 at Ahmedabad in Criminal Case No. 118 of 2004 dated 15.1.2004 and all actions taken thereon including the issuance of bailable warrants is liable to be declared ab initio void, hence, liable to be set aside."

18.47 The Hon'ble Supreme Court has, referring to the judgment in the case of Express Newspapers (P) Ltd. v. Union of India reported in (1986) 1 SCC 133, Pratap Singh v. State of Punjab, reported in AIR 1964 SC 72, held that fraud vitiates everything.

18.48 The learned counsel has pointed out Halsbury Laws of England, Vol. 9, Para 38 where what is meant by "abuse of process of law" in general has been stated thus:-

"Abuse of process in general - The Court has power to punish as contempt any misuse of the court's process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt."

18.49 He has thereafter relied on the judgment of this Court in the case of Bai Virkor v. Damodar Boghabhai reported in 1979(2) GLR 652 where this Court (Coram: S.B. Majmudar, J (as he was then)) has relied on the aforesaid passage and held in para 13 on page 659 as under: "It has been further observed in the said para that certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the Court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the Court, by exercising its statutory powers, its powers under rules of Court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as contempt of Court."

18.50 Mr. Raju, learned counsel, has invited my attention to the fact that Criminal Writ Petition No. 729 of 1994 was also filed by applicant before the High Court of Judicature at Bombay with a prayer that in this case the Court directs the Central Bureau of Investigation or any other investigating agency to investigate the case of the petitioner. The said petition was filed on 1.6.1994. It may be stated that the petitioner has narrated the incident in Gujarat and also other incident of smuggling and other illegal activities committed in the state of Maharashtra and made various allegations against the police officers and Ministers in this behalf.

18.51 Mr. J.B. Pardiwala, ld. advocate for the High Court stated that in that petition one Mr. D.B. Gorde, Police Sub-Inspector attached to the Central Police Station, Ulhasnagar, has filed affidavit dated 3.8.1994. In the said affidavit it has been stated that the petitioner is a notorious criminal and involved in various criminal cases of cheating and misappropriation of monies of various persons from Ulhasnagar and has also involved in various criminal cases in Gujarat State for the offences under Sections 323, 504, 506, 114, 143, 394, 397, 398, 363, 406, 423, 354, 406 and 420 etc. It was further stated that the petitioner with intention to get rid and/or to hide from these criminal cases lodged in various criminal courts in Gujarat and Maharashtra and to divert the attention of the Investigating Police Officers from these criminal cases against the petitioner, has filed the above petition making various false allegations against the Police Officers, Customs Officers, Ministers and other respectable persons, alleging that these Government officers and the police officers having relations with underground criminals and under conspiracy, are doing the acts contrary to the interest of this country by smuggling and importing the explosives serious weapons from outside and those officers involving the petitioner in various criminal cases who knows all the illegal activities of the officers and with purpose to keep away the petitioner. The petitioner has made out in this petition false picture with only intention to divert attention of the police officers who are investigating various criminal cases lodged against the petitioner. It is stated that all the contentions made by the petitioner in the petition are totally false and frivolous and made only with an intention to defame the high police officers and Ministers without any supporting evidence and all such contentions are specifically denied.

18.52 The other contentions in the petition are also denied and in the affidavit it was also stated that the petitioner is a notorious criminal who has been involved in various criminal cases and cheating, misappropriation, robbery, dacoity, kidnapping, extortion etc. which have been already registered in Gujarat, in Punjab, in Assam and also in Maharashtra and those cases cannot be said to be false and concocted at the instance of some one of Ulhasnagar and therefore frivolous allegations made by the petitioner against various personnel of the Government department are baseless and without support of any evidence, from which it can be inferred that the petitioner is making such allegations only with one intention to hide his ill deeds and to save his skin from the effect of serious offences committed by him in various places of this country. The learned counsel submitted that in view of this affidavit of Govt. filed before Bombay High Court it shows that the applicant has not come with clean hands. So relief claimed by applicant regarding quashing of criminal cases may not be accepted.

18.53 I have been informed by Mr. Raju, learned advocate that though initially rule was issued, the said petition has been dismissed for default but no judgment of the Bombay High Court has come.

19. SUBMISSION OF LEARNED GOVERNMENT PLEADER, MR. A.D.OZA

19.1 Learned Government Pleader, Mr. Oza, invited our attention to the various reports filed by the CID, Crime, from time to time. The details of the said reports have already been referred by me earlier. Therefore, I am not quoting the same at this stage.

19.2 Relying upon the said reports of the CID Crime, the learned Government Pleader, Mr. Oza, has submitted that this Court has passed the order dated 20.12.1994 directing the police to enquire into the entire episode. The Court thereafter directed to enquire into all ten cases which have been filed against the applicant. It is stated that, in view of this, the Enquiry Officer has made extensive reports in the matter. All these reports were made during the interregnum period between the judgment of the Gujarat High Court and the Supreme Court. The Police Officer has produced the said reports before the Supreme Court also. He has further submitted that the petitioners in Criminal Misc. Applications were respondents before the Supreme Court in the SLP filed by Mr. Galani. Though they were aware about the reports submitted before the Supreme Court, they have not filed any affidavit controverting the said reports. The Supreme Court has perused the reports and, thereafter, directed the High Court, while disposing of the matters, to take into considerations of the said reports. He has further submitted that all these reports demonstrate that all ten complaints filed against the applicant and their family members were vague, bogus and concocted. It was clearly an abuse of process of law. He has further submitted that, on the basis of the First Information Report filed by Mr. Galani, the Investigating Agency filed a complaint before Nadiad Court and a charge sheet was also filed. In connection with the said case, several persons have been arrested and the case is pending. He has supported the contentions of the learned advocate, Mr. S.V. Raju, that all the ten cases deserve to be quashed. He further submitted that Enquiry Case No. 211 of 1994 which has been filed pursuant to the warrant issued by Dakor Court, is also directed to be heard and disposed of by the lower court in accordance with law. As regards Enquiry Case No. 1 of 1995, he has requested that this Court may be pleased to direct the trial court to hear and dispose of the matter at an early date, because that matter raises several questions of fact and law and if that matter is decided, the entire episode will come to light.

20. SUBMISSIONS OF LEARNED ADVOCATE GENERAL MR. S.N. SHELAT (as senior advocate in his personal capacity appearing as amicus curiae)

20.1 Mr. S.N. Shelat, learned Advocate General, whom this Court has appointed as amicus curiae to assist this Court, has readily agreed to appear before this Court. As indicated above, this Court has appointed him as amicus curiae because Mr. Padiwal, petitioner as well as the advocate for the petitioner has died during the pendency of the proceedings. Before starting his submission, he has made it clear that he holds the post of Advocate General. In this matter he has appeared in his personal capacity and his submissions are personal and his submissions do not reflect the views of the Government. He has stated that Mr. A.D. Oza, learned G.P. has already appeared to represent the case of the Government. He has made the following submissions.

20.1A The learned counsel has invited our attention to the order of this Court dated 20.12.1994, thereafter, the final order of the Supreme Court and also other documentary evidence on record. He has submitted that it is no doubt true that Mr. Raju relied heavily upon the judgment of the Delhi Judicial Officers Case. In that case, the Supreme Court appointed Mr. Sahai, one of the senior most judges of the Allahabad High Court at the relevant point of time, to conduct the enquiry (who was subsequently elevated as a Judge of Apex Court). He had conducted the enquiry elaborately, he had given chance to every one to put forward his case and ultimately he filed report and, thereafter also, the parties were given opportunity to file objections and, thereafter, the report was submitted and, on the basis of the said report, the Supreme Court passed the order. In the instant case, the reports have been filed by the police officers. They merely recorded statements of various persons. He further submitted that not only the credibility, but the manner and method in which the police officers have prepared the report are quite distinct and different and, therefore, the Court cannot heavily rely upon the said reports. He further submitted that, while quashing the complaint, the Supreme Court exercised power under Article 142 of the Constitution of India whereas this Court has no power under Article 226 and, therefore, that issue is quite distinguishable on the facts of the case. As regards the judgment of the Hon'ble Supreme Court in the case of Vijay Shekhar and Anr v. Union Of India (supra) he submitted that there was already a consensus between all the parties that the Supreme Court should quash the complaint and ultimately the Supreme Court quashed the complaint. Here, it is not that type of case and, therefore also, these judgments are distinguishable on the facts of the case, therefore, this Court cannot rely upon the said judgments, which have been sought to be relied upon by Mr. Raju.

20.2 The learned counsel submitted that at present this Court is hearing PIL under Article 226 of the Constitution of India. He has stated that the scope of PIL has been considered by the Hon'ble Supreme Court in the case of Ashok Kumar Pandey v. State of West Bengal reported in (2004) 3 SCC 349. He has relied on paragraph Nos. 4, 12,14 and 30 of the said judgment.

20.2A He has further relied on the judgment of the Hon'ble Supreme Court in the case of Guruvayoor Devaswom Managing Committee and Anr v. C.K. Rajan and others reported in (2003) 7 SCC 546. In that case the Hon'ble Supreme Court has considered the scope of public interest litigation from paragraphs 41 to 49 and ultimately in paragraph 50 the Hon'ble Supreme Court summarised the principles of PIL thus:-

(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. (See: S.P. Gupta v. Union of India (1981 Supp SCC 87), People's Union for Democratic Rights v. Union of India ( (1982) 2 SCC 494), Bandhua Mukti Morcha v. Union of India ((1984) 3 SCC 161) and Janata Dal v. H.S. Chowdhary ( (1992) 4 SCC 305)

(ii) xxxxxxxxxxxx

(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.

(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right (See: Fertilizer Corporation Kamgar Union (Regd.) v. Union of India ((1981) 1 SCC 568), S.P. Gupta ((1981) Supp SCC 87), People's Union for Democratic Rights ((1982) 2 SCC 494), D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India ((2002) 2 SCC 333).

(v) to (viii) xxxxxxxxxxx

(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See: Bandhua Mukti Morcha ((1984) 3 SCC 161), Rakesh Chandra Narayan v. State of Bihar (1989 Supp(1) SCC 644) and A.P. Pollution Control Board v. Prof. M.V. Nayudu ((1999) 2 SCC 718).

In Sachidanand Pandey v. State of W.B. ((1987) 2 SCC 295 this Court held (SCC pp. 334-35, para 61):

"61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants".

In Janata Dal v. H.S. Chowdhary ((1992) 4 SCC 305) this Court opined: (SCC p. 348, para 109)

"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold."

(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, they do not have a power akin to Article 142 of the Constitution of India."

20.2B It may be noted that in para 51 of the said judgment the Hon'ble Supreme Court has relied on the judgment in the case of M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 and in para 52 the judgment in BALCO Employees' Union (Regd.) ((2002) 2 SCC 333 and also laid down the principles of PIL. Thereafter, the Hon'ble Supreme Court in paragraph 55 of the said judgment observed thus: "We do not intend to lay down any strict rule as to the scope and extent of a public interest litigation, as each case has to be judged on its own merits. Furthermore, different problems may have to be dealt with differently."

20.2C He has relied on another judgment of the Hon'ble Supreme Court in the case of Chairman & MD, BPL Ltd. v. S.P. Gururaja and others reported in (2003) 8 SCC 567 where the Hon'ble Supreme Court has explained the scope of public interest litigation.

20.3 In view of the aforesaid submissions, he has stated that this Court has to exercise power under Article 226 of the Constitution in PIL filed by Mr. Padiwal and therefore this Court may not be able to quash the criminal proceedings filed by different persons against the applicant (who is not a party in the present petition) and his family members particularly when the charge-sheet has been filed in those cases. He submitted that this Court is not hearing the petition under Section 482 of the Criminal Procedure Code (of the applicant) and therefore this Court may be slow in quashing the proceedings when the chargesheet is already filed in the matters. This Court may give directions to hear and decide all those cases as expeditiously as possible. The same will be in the interest of justice.

20.4 It is submitted that the Hon'ble Supreme Court passed an interim order regarding custody of the record with the High Court. Thereafter, the Supreme Court disposed of the matter. It is no doubt true that when the Supreme Court passed the final order, the Supreme Court could have passed an order regarding custody of records, but, that order is naturally a corollary of the main judgment as well as a mere formal order is required to be passed by the Supreme Court directing the trial court to hear the matter expeditiously. If the matter is pending before the Supreme Court, it will have a different dimension that the Supreme Court can only modify its order but after the interim order the Supreme Court finally disposed of the matter and, therefore, this Court has power and jurisdiction to direct the trial court to hear all the matters and decide the same in accordance with law.

21. SUBMISSION OF LEARNED ADVOCATE MR. J.B. PARDIWALA ON BEHALF OF THE HIGH COURT:

21.1 It may be noted that, originally when the petition was filed, the High Court was a party. Thereafter, the High Court was deleted by the Division Bench. However, subsequently, the High Court has been joined as party-respondent. In view of the same, Mr. J.B. Pardiwala appeared on behalf of the High Court and has ably assisted the Court.

21.2 As regards the reports submitted by the CID Crime, he has submitted that the substance of the reports is to the effect that all the ten cases filed against Mr. Galani and his family members are false and in most of the cases the complainants are bogus and are not in existence. Relying upon the said reports filed by the CID Crime, vociferous submission on behalf of the applicant before this Court has been that all the ten cases which are registered against him must be quashed by this Court in exercise of its powers under Article 226 of the Constitution of India. In view of this, the learned advocate has submitted that the petition which is being considered and decided is a Public Interest Litigation and the object with which the petition was filed has nothing to do so far as quashing of the ten criminal cases against the applicant is concerned. May be as a corollary to the main petition, this Court with a view to prevent abuse of process of law may also consider to deal with this aspect of the matter, namely, quashing of the ten criminal cases against the applicant which includes a private complaint Under Section 138 of the Negotiable Instruments Act and one summary suit filed in the Court of Civil Judge (S.D.), Vadodara.

21.3 He has further submitted that in some of the prosecutions against the applicant, the police has filed charge sheet into the FIR or the complaint and found material against the applicant and others sufficient enough to file charge sheet. It is also important to note that this Court had merely directed an inquiry to be carried out by CID Crime and this Court never directed the CID Crime to register an offence which the CID Crime on its own has registered it as CR No. I of 1995.

21.4 The learned counsel has submitted that the reports which are sought to be relied upon are interim reports/final reports and the enquiry cannot be said to have been conclusive. Though in cases of few of the accused persons arrested in connection with CR No. I of 1995 charge sheets have been filed against those accused persons. He has submitted that one another important question that would arise is as to what would be the effect on the prosecution of those accused persons of CR No. I of 1995 if the prosecutions against the applicant are quashed by this Court in exercise of its powers under Article 226 of the Constitution.

21.5 As regards the submission of Mr. Raju regarding quashing, the learned advocate submitted that, as regards quashing is concerned, he would like to put a note of caution that the instances cited by Mr. Raju where the Honourable Supreme Court has interfered and has quashed the prosecution are in exercise of its powers under Article 142 of the Constitution. He has submitted that there is different between the powers exercised by the Supreme court under Article 142 and that of the High Court under Article 226. In support the same, he has relied upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. and Anr v. Johri Mal reported in (2004) 4 SCC 714 relevant paragraphs 57 and 58. He has submitted that the power under Article 142 cannot be equated with the power under Article 226.

21.6 He has further submitted that as regards reports submitted by CID Crime and the report submitted by Justice Sahai in the case of Delhi Judicial Association, there is vast different. It is submitted that Justice Sahai when he was appointed as Commission was a senior most Judge of Allahabad High Court. Not only that he gave full opportunity to all the people in connection with his report. Not only, after his report was submitted, again, the Supreme Court issued notices to all the people to file objection and, thereafter, the Supreme Court came to the conclusion regarding the findings of Justice Sahai. No such opportunity has been given by the CID Crime in the instant case. The CID Crime merely recorded statements and prepared reports. He has further submitted that, to that extent, it is not fully safe to accept the reports of the CID Crime.

21.7 He has further submitted that the principle of law so far as quashing of FIR is concerned, is well settled. The Court has to read the FIR or complaint as it is and see whether it discloses commission of come offence or not. Once FIR or complaint discloses the commission of offence then it would be a subject matter of investigation and at that stage perhaps the Court may not interfere because whether the allegations are true or false whether the evidence is sufficient or insufficient and whether the defence of the accused is probable or not cannot be taken into consideration at that stage. One another important aspect is that in a case where charge sheet is filed the FIR will loose its significance. Then over and above FIR there is material in the form of charge sheet.

21.8 He has also relied upon the judgment of the Supreme court in the case of State Of Maharashtra v. Somnath Thapa, reported in AIR 1996 SC 1744, more particularly paragraphs 31 and 32. Paragraph No. 32 on page 1750 reads as under:

"para - 32 The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

21.9 In view of this judgment and the Court is hearing PIL and not quashing proceedings, he has submitted that this Court may appropriately decide whether it would be in the interest of justice to quash all the ten cases against the applicant relying on the periodical reports of the CID Crime filed in this Court from time to time or whether it would be appropriate and legal to relegate the applicant to take recourse of remedies available under the law for getting the 10 cases quashed on the ground that they are false cases.

21.10 As regards scope of PIL, the learned counsel relied on the judgment of the Supreme Court in the case of Bandhua Mukti Morcha v. Union Of India reported in AIR 1984 SC 802 particularly to para 59 on page 842 where the Hon'ble Supreme Court has observed as under: "What should be the conceivable framework of procedure in public interest litigation? This question does not admit a clear-cut answer. As I have observed earlier, it is not possible to envisage a defined pattern of procedure applicable to all cases. Of necessity the pattern which the Court adopts will vary with the circumstances of each case. But it seems to me that one principle is clear. If there is a statute prescribing a judicial procedure governing the particular case the Court must follow such procedure. It is not open to the Court to bypass the statute and evolve a different procedure at variance with it. Where, however, the procedure prescribed by statute is incomplete or insufficient, it will be open to the Court to supplement it by evolving its own rules. Nonetheless, the supplementary procedure must conform at all stages to the principles of natural justice. There can be no deviation from the principles of natural justice and other well accepted procedural norms characteristic of a judicial proceeding. They constitute an entire code of general principles of procedure, tried and proven and hallowed by the sanctity of common and consistent acceptance during long years of the historical development of the law. The general principles of law, to which reference is made here, command the confidence, not merely of the Judge and the lawyer and the parties to the litigation, but supply that basic credibility to the judicial proceeding which strengthens public faith in the Rule of Law. They are rules rooted in reason and fairplay, and their governance guarantees a just disposition of the case. The Court should be wary of suggestions favouring novel procedures in cases where accepted procedural rules will suffice".

22. CONTENTION OF MR. G.D. BHATT ON BEHALF OF BAR COUNCIL OF GUJARAT

22.1. Mr. G.D. Bhatt, learned advocate has appeared on behalf of respondent No. 3, Bar Council of Gujarat. It has been stated that the Bar Council of Gujarat has filed affidavit dated 13.1.1995, 29.8.2002 and also further affidavit dated 19.1.2004. Before he has invited my attention to the contents of the affidavit, he has invited my attention to the Advocates Act, 1961 (hereinafter referred to as "the Act"). Section 2(a) of the Act provides for an advocate means an advocate entered in any roll under the provisions of this Act. Section 2(e) of the Act provides "Bar Council of India" means the Bar Council constituted under Section 4 for the territories to which this Act extends. Section 2(m) of the Act provides "State Bar Council" means a Bar Council constituted under Section 3. Section 2(n) of the Act provides "State roll" means a roll of advocates prepared and maintained by a State Bar Council under Section 17.

22.2 The learned counsel has stated that Section 3 of the Act provides constitution of State Bar Councils. Section 4 of the Act provides Bar Council of India. Section 6 of the Act provides functions of State Bar Councils. Section 7 of the Act provides for functions of Bar Council of India. Section 9 of the Act provides Disciplinary Committees. Section 15 of the Act provides power to make rules. Section 24 of the Act provides persons whom may be admitted as advocates on a State roll. Section 24A of the Act provides disqualification for enrolment. Section 28 of the Act provides power to make rules by State Bar Council. Section 30 of the Act provides right of advocates to practise. Section 35 of the Act provides punishment of advocates for misconduct which reads as under:

"Section 35 - Punishment of advocates for misconduct - (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

(1-A) The State Bar Council may, either of its own or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee or direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

(2) The disciplinary committee of a State Bar Council shall fix a date for hearing of the case and shall cause a notice thereof to be given to the advocate concerned and the Advocate General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being heard, may make any of the following orders, namely:-

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

22.3 Section 36 of the Act provides disciplinary powers of Bar Council of India. Section 36B of the Act provides disposal of disciplinary proceedings. Section 37 of the Act provides appeal to the Bar Council of India. Section 38 of the Act provides appeal to the Supreme Court.

22.4 The learned counsel has also invited my attention to Bar Council of Rules which have been framed in exercise of its Rule making powers under the Advocates Act, 1961. He has invited my attention to Chapter II standards of Professional Conduct and Etiquette - Rules under Section 49(1)(c) of the Act read with the Proviso thereto. The said Rules provide duty to the Court. Rule 11 provides duty to the client. He has also invited my attention to the book of Gururaja Chari's Advocacy and Professional Ethics, First Edition 2000, particularly page 171. The said book provides that it will be professional misconduct to prepare and present to Court an affidavit of documents sworn by a client containing statements which the advocate knew, or must have suspected, to be false. It was stated that the advocate will not be excused merely because he has notified the falsity to the client who insisted on swearing it. His duty is to withdraw from the case, when the client takes up that attitude.

22.5 After inviting my attention to the Act as well as Rules as stated above, in his affidavit he has stated that the Bar Council had received letter dated 12.12.1994 of Hareshkumar Ishwarlal Sevak of Dakor and letter dated nil of Smt. Renuka Trivedi, Freelance Journalist of Bombay along with its accompaniments as well as letter dated 15.12.1994 of Navnitlal Jayranchhod Pandya of Dakor addressed to the Chief Justice, High Court of Gujarat and copy of which was sent to the Bar Council and the letter dated 12.12.1994 of the Secretary, Dakor-Thasra Bar Association along with its accompaniments and the same were initially placed before the Executive Committee of the Bar Council for appropriate action and even apart from the present petition, the matter would have been placed in due course before the Bar Council for decision according to law. The Executive Committee of the Bar Council in its meeting held on 18.12.1994 had resolved to place the same before the Bar Council of Gujarat and ultimately respondent No. 3, the Bar Council of Gujarat in its extra-ordinary meeting held on 22.12.1994 has passed the following resolution: "Considering the material placed before the Bar Council, resolved that there are reasons to believe that the advocates Shri Miteshchandra Manilal Khambholja of Dakor and Advocate Shri Dipak Miteshchandra Khambholja of Dakor on the roll of the Bar Council of Gujarat are prima facie guilty of professional misconduct and that prima facie case for reference is made out and that the matter may be taken up by way of suo motu complaint against the aforesaid two advocates and the same be referred to the Disciplinary Committee No. VII for inquiry and disposal in accordance with law."

22.6 It was further stated that the Disciplinary Committee has been constituted. It was further stated that considering the material placed before the General Body of Bar Council of Gujarat, it was resolved that there are reasons to believe that advocates Shri Miteshchandra Manilal Khambholja of Dakor and advocate Shri Dipak Miteshchandra Khambholja of Dakor were prima facie guilty of professional misconduct and that prima facie case for reference was made out and that the matter might be taken up by way of suo motu complaint against the aforesaid two advocates and the same was referred to the Disciplinary Committee of Bar Council of Gujarat No. VII for inquiry and disposal in accordance with law.

22.7 He further stated that the Bar Council of India by its judgment and order dated 30.6.1999 in BCI Tr. Case No. 18 of 1996 in paragraph Nos. 51 and 52 has held as under:

"Para 51 - In view of the findings recorded by us over Charge No. 1 and 2 we hereby order that the names of the respondent advocates, namely, Mr. Miteshbhai Manilal Khambholja and Mr. Deepak Miteshbhai Khambholja is removed from Roll of Advocates maintained by Bar Council of Gujarat for ever. They shall not be entitled to practise before any Court, Authority of person throughout India. We also impose a cost of RS. 20,000/over the respondent advocates to be paid by them in two months to Bar Council of India.

The name of respondents shall be struck off from the State Roll.

Para 52 - The mater does not come to an end here. There enough material which was come on record which indicates involvement of certain other advocates against whom we order Suo Motu enquiry to be held:

(1) Vinod Verma (2) Narendra Mehta of Dakor (3) Mr. Gopal Ramani, Advocate of Baroda (4) Ashok N. Advani, Advocate of Ulhashnagar, Block No. 950, Room No. 23/24, Sector 20, Ulhashnagar, Dist. Thane (Maharashtra) (5) Mr. Purohit, advocate of Borsad (6) Mr. Mirja, advocate of Boarsad (7) Mr. Ramesh Goel, advocate of Dakor.

22.8 Mr. Vinod Verma, Narendra Mehta were involved in the present matter and from the documents produced C. 43 and from the deposition of Galani and Mahatre, C.W. 5 and C.W. 10, respectively, it is clear that Mr. Gopal Ramani, advocate was the chief architect of manufacturing the complaints against Manohar Galani. The report of the Additional Director General of Police (Crime) indicates his complicity. The other reports of C.I.D. Crime, C-43 collectively dated 21.3.1995, the names of advocates Purohit and Mirja of Borsad and Mr. Ramesh Goel of Dakor have occurred. They have admitted that in order to oblige their fellow advocate Ramesh Goel practising in Dakor, they had filed a criminal case 102/94 at Borsad through one person Harishkumar Mukundlal Panchal as complainant. The cases which were filed against Galani another advocate Ashok N. Advani has been named. Inquiry must be drawn against him. The Suo Motu proceedings are initiated against the aforesaid persons. Case be registered separately. Bar Council of Gujarat is also directed to send the names and addresses of the aforesaid advocates involved in the case and in any matter of similar nature so that disciplinary proceedings are held against them and if they are guilty then they be treated in accordance with law."

22.9 The said judgment is reported in Indian Bar Review, Vol. XXVI (3 and 4), 1999, the Journal published by Bar Council of India Trust, New Delhi, on pages 175 to 210. The said order has been produced by Mr. Bhatt on the record of the case. It was stated that in view of the said decision in respect of the said advocates, namely, Mr. Miteshbhai M. Khambholja and Mr. Deepak Miteshbhai Khambholja of Dakor, their names were ordered to be struck off from the State Roll and since the aforesaid seven advocates mentioned in para 52 of the judgment as reproduced above, suo motu enquiry was directed to be held against the aforesaid seven advocates. It was further stated that suo motu proceedings were initiated as per order dated 30.6.1999 in BCI Tr. Case No. 18 of 1996 and the details of case numbers and the names of the concerned advocates against whom suo motu proceedings were initiated are as under: Case No. Suo Motu enquiry Vs.

1. BCI Tr. Case No. 146/1999 Vinod Chandra Jayantilal Mehta

2. BCI Tr. Case No. 147/1999 Narendra Jethalal Mehta

3. BCI Tr. Case No. 148/1999 Gopal Ramani

4. BCI Tr. Case No. 149/1999 Bamarasinh Mansukhlal Purohit

5. BCI Tr. Case No. 150/1999 Mahemudbeg Allauddin Mirza

6. BCI Tr. Case No. 151/1999 Rajesh Kumar Tribhovandas Gohail

7. BCI Tr. Case No. 160/1999 Ashok N. Advani

22.10 It was further submitted that being aggrieved and dissatisfied with the said order, Mr. M.M. Khambholja and Mr. Deepak M. Khambholja had preferred appeal before the Hon'ble Supreme Court of India being Civil Appeal No. 4877 of 1999 and the Hon'ble Supreme Court has by its order dated 13.9.1999 dismissed the aforesaid appeal preferred by the aforesaid advocates.

22.11 It was further stated that Mr. Vinod Verma, Narendra Mehta and others were involved in the matter and the documents were produced and from the deposition of Galani and Mahatre, it was clear that Mr. Gopal Ramani was the chief architect of concocting the complaints against the applicant - Manohar Galani. The report of the Additional Director General of Police (Crime) indicates his complicity. The other reports of C.I.D. Crime dated 21.3.1995, the names of advocates Purohit and Mirja of Borsad and Ramesh Goel of Dakor have occurred. They have admitted that in order to oblige their fellow advocate Ramesh Goel practising in Dakor they had filed a criminal case 102 of 1994 at Boarsad through one person Harishkumar Mukundlal Panchal as complainant. The cases which were filed against the applicant another advocate Ashok N. Advani has been named.

22.12 Suo Motu proceedings are initiated against the aforesaid persons. Case was registered separately. Bar Council of Gujarat is also directed to send the names and addresses of the aforesaid advocates involved in the case and any matter of similar nature so that disciplinary proceedings are held against them and if they are guilty then they be treated in accordance with law.

22.13 The learned counsel, has invited my attention to the judgment in the case of SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA reported in AIR 1998 SC 1895. He has relied on para 55 on page 1913 which reads thus:

"After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for "professional misconduct" has been conferred on the concerned State Bar Council and the Bar Council of India. That Act contains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his "professional misconduct". Since, the suspension or revocation of licence of an advocate has not only civil consequences but also penal consequences, the punishment being in nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder."

22.14 The Hon'ble Supreme Court has considered in paragraphs Nos. 57, 58, 59, 60, 61 various provisions of the Advocates Act. In paragraph No. 62 the Hon'ble Supreme Court has considered the Rules dealing with disciplinary proceedings against the advocates. In para 63 of the said judgment the Hon'ble Court has considered Rules 3 and 4 of Chapter I Part VII which provide for the procedure to be followed in dealing with such complaints. Paragraph 64 of the said judgment deals with Rules 5, 6 and 7 of the said Rules and paragraph 65 of the said judgment deals with Rules 9 and 10 which provides the manner of recording evidence during the enquiry into a complaint of professional misconduct and the maintenance of record by the committee. In paragraph 67 of the said judgment the Hon'ble Supreme Court has observed as under: "The object of referring to the various provisions of the Advocates Act, 1961 and the Rules framed thereunder is to demonstrate that an elaborate and detailed procedure, almost akin to that of a regular trial of a case by a Court, has been prescribed to deal with a complaint of professional misconduct against an advocate before he can be punished by the Bar Council by revoking or suspending his licence or even for reprimanding him."

22.15 In paragraph 69 on page 1915 of the said judgment the Hon'ble Supreme Court has further observed thus:

"Thus, after the coming into force of the Advocates Act, 1961, with effect from 19th May, 1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Council of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body."

22.16 Further the Hon'ble Supreme Court in paragraph 77 on page 1917 of the said judgment has observed as under:

"An advocate who is found guilty of contempt of Court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of the case."

22.17 The learned counsel has also invited my attention to the judgment of the Hon'ble Supreme Court in the case of Bar Council Of India v. High Court Of Kerala reported in AIR 2004 SC 2227 where the Hon'ble Supreme Court has considered the provisions of the Advocates Act, Contempt of Court and misconduct by Advocates.

23. CONTENTION OF MR. ANANDJIWALA, LEARNED COUNSEL FOR THE APPLICANT:

23.1 Tarachand Manumal Lalwani, applicant No. 2, has filed Civil Application No. 5683 of 2004 before this Court with a prayer that the applicant be joined as respondent No. 4 in the main matter i.e. Special Civil Application No. 13258 of 1994 as a proper or necessary party. It is his case that the applicant is a necessary or proper party and whose presence would be necessary for effective adjudication of the main matter. Mr. Anandjiwala, learned counsel, has submitted that this Court may not rely on the report submitted by C.I.D. Crime which has been filed from time to time. He has also invited my attention to the decision in the case of Delhi Judicial Service Association v. State Of Gujarat reported in (1991) 4 SCC 406. In that case the Hon'ble Mr. Justice Sahai who is also appointed to enquire into the incident by the order of the Hon'ble Supreme Court had completely a judicial approach. He has not only recorded the statements of the persons but allowed other persons to cross examine them and thereafter the Hon'ble Supreme Court has considered the report. In this case no such statement has been recorded. Merely, recording of statement is not enough. He has stated that he has agricultural activity at Dabhoi. He has three shops. He has also about 17 acres of agricultural land from which he gets the permanent income. He has also stated that the authority has relied on the statement of his wife and afterwards his wife has resiled from the said statement. He submitted that as regards Inquiry Case No. 11 of 1994 whatever allegations have been made and now the chargesheet has been filed by the Police and once chargesheet is filed after investigation of the allegation in the complaint and the Court has taken the cognizance of the case, the offence committed by the accused, there is no provision under the Cr.P.C. or any other law to direct re-investigation by any other investigating agency. It is the judicial authority who after fulfledged trial has to arrive at the decision by pronouncing verdict regarding accused whether they are guilty or not guilty of offence committed by the accused person . He has submitted that under no stretch of imagination that the police authorities or the investigating agencies like C.I.D. Crime are invested with the power to pronounce verdict that the charge sheet filed by their department or any other investigating agency is "false" as has been done in this case. He has also stated that the police authority has worked at the instance of the applicant Mr. Galani. He has stated that he has never absconded. He has filed Criminal Application No. 704 of 1993 before the Court. He has further stated that Criminal Application No. 35 of 1995 was filed before the Metropolitan Magistrate, Ahmedabad Court No. 1, Ahmedabad against Manohar M. Galani under Sections 323, 506, 347, 365, 114 of the I.P.C. He has stated that the accused has alleged that he wants to cut his nose because of several litigations initiated by the applicants and others against Mr. Galani, applicant No. 1. Ultimately, he has filed the said complaint before the Court on 31.3.1995 and the Metropolitan Magistrate has passed the order. The said complaint is still pending. It is his contention that in the complaint the officer has not mentioned anything about the same. In view of the same, he has stated that in the present P.I.L. he will be necessary party.

23.2 Along with the application he has also filed affidavit in reply of respondent No. 4 in Special Criminal Application No. 132 of 2004. He has also filed copy of the complaint which I have referred. He has also filed Special Criminal Application No. 436 of 1995. He has also filed further affidavit dated 12.8.2004. He has stated that the contention of the police authority that he is not traceable is not correct because he has got identity card from Election Commission of India. He also holds ration card and he also holds property. He has also responsibility of Dabhoi Nagarpalika. He has also filed further affidavit in August 2004.

23.3 The learned advocate has stated that when this Court passed order on 28.12.1995, this Court entrusted inquiry to competent senior officer of CID Crime Branch and he is directed to submit report to this Court as early as possible. The learned counsel has submitted that in common parlance particularly when I consider the order of the Court, investigation, inquiry are used as synonymous and interchangeable terms. However, Criminal Procedure Code uses differently and with specific, distinct connotation. Learned counsel has submitted that investigation according to the Code is to be conducted always by a Police Officer or any other authorised person (other than a Magistrate) and it includes all proceedings under the Code for the collection of evidence. (See: Section 2(h) of the Code). He submitted that therefore the inquiry report prior to registration of the case by CID Crime is not, however, part of investigation and inquiry according to the Code means every inquiry which is conducted by a Magistrate or Court and which is not trial. (See: S. 2(g) of the Code). He submitted that as per the Code inquiry is never conducted by the Police though in common parlance we always say that police to enquire.

24. SCOPE OF Section 195 AND Section 340 OF THE CRIMINAL PROCEDURE CODE - SUBMISSION OF MR. PARDIWALA, LEARNED COUNSEL:

24.1 It may be noted that, when earlier this matter along with criminal matters were heard by this Court, question of Section 195 read with Section 340 of the Code of Criminal Procedure was raised before this Court. This Court allowed the petitions on the said ground. However, thereafter, the Honourable Supreme Court reversed the said judgment and order of this Court and held that it was rather premature for the High Court to come to the aforesaid conclusion and on account of the orders passed, the investigation into several serious allegations are being throttled. In view of the same, the Court set aside the orders quashing the two complaints and the investigation made thereunder and direct that those cases may proceed in accordance with law. So the question of considering the scope of Section 195 read with Section 340 of the Code of Criminal Procedure did not arise (at this stage) and so on that ground alone, the Honourable Supreme Court allowed the appeal and remanded the matter back to this Court.

24.2 Now, during the hearing, at least in one matter, i.e. C.R. No. 11/94 (Baroda Court), it has been contended by learned advocate for the applicant that, in this case, the learned Judge of Baroda Court has passed an order that the Ahmedabad Division of Railway should inquire into the offence and report to the Court. In fact, the outward number also shows that the Ahmedabad Division of Railway has been entrusted with the investigation. However, when the actual order reached to the Railway, it appears that through connivance of the officer of the Court, it was directed that Baroda Division of Railway has to inquire into the matter and the order (of Baroda Court) reached to Baroda Division. This shows that, in the court record (of Baroda Court), somebody has tried to tamper and forge the order of the court and played great mischief and fraud with the Court. There are some other such instances, however, with a view not to burden the record further, I do not want to refer to it, but, suffice it to say that this is one of such examples.

24.3 Now, the applicant filed complaint and FIR was registered being C.R. No.I of 1995 in the Baroda Court. It is one of the contentions of the accused in that case that on the basis of such type of fraud and mischief, when the court records have been tampered with, the learned Judge at Baroda will have to pass an order in consonance with the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure. In this type of situation, it appears that, now, the stage has come in connection with interpretation of Section 195 read with Section 340 of the Code of Criminal Procedure, and, therefore, I am dealing with the said contention.

24.4 Section 195 of the Code of Criminal Procedure reads as Section 195 of the Code of Criminal Procedure reads as under:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence:-

(1) No Court shall take cognizance _

(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (5 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate:

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45) of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and sent a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term 'Court' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that-

(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

24.4A Section 340 of the Code of Criminal Procedure reads as under:

"340. Procedure in cases mentioned in Section 195-

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, 'Court', has the same meaning as in Section 195."

24.5 The provisions of Section 195 of the Code of Criminal Procedure are contained in Chapter-XIV of the Code. Chapter-XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 195 of the Code of Criminal Procedure deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. This section deals with prosecution for three different groups of offences, viz., contempt of lawful authority of public servants, certain offences against public justice and certain offences relating to documents given in evidence. The second and third groups are connected in that, both of them affect the administration of justice.

24.6 Under clauses (i) and (ii) of Section 195(1)(b) the complaint of the civil, revenue or criminal court concerned is necessary for any criminal court to take cognizance of certain offences against public justice or certain offences relating to documents given in evidence, as observed in a Madras case (K. Ramawami Iyengar v. K.V. Panduranga Mudaliar reported in AIR 1938 Mad, 173, 174). The relevant portion is as under: "The principle underlying S. 195, Criminal P.C., is plainly this. Where an act amounts to the offence of contempt of the lawful authority of public servants (Ss. 172-188, IPC), or to an offence against public justice such as giving false evidence (Section 193 et seq., I.P.C.), or to an offence relating to documents actually used in a Court (S. 47 etc.), private prosecutions are barred absolutely, and only the Court in relation to which the offence was committed may initiate proceedings. This salutary rule of law is founded on common sense. The dignity and prestige of courts of law must be upheld by their presiding officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a court's honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial claim of tribunals and to allow a court's prestige to be the sport of personal passions."

24.7 It would also be profitable to reproduce a relevant extract of the Hon'ble Apex Court decision in the case of State of Karnataka v. Hema Reddy and Anr. reported in AIR 1981 SC 1417 relevant para 12 on page 1424. The Apex Court has observed as under:

"The underlying purpose of enacting Section 195(1) (b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings."

24.8 It is very clear that for the purposes of Section 195 Clause (1)(b)(i) a complaint by the Court is a pre-condition for taking cognizance of such offence by any criminal court. If this pre-condition is not satisfied, the court will have no jurisdiction to take cognizance.

24.9 As observed by the Honourable Apex Court in the matter of M.S. Ahlawat v. State of Haryana and another, (2000) 1 SCC 278 (para 5 page 282):

"Section 340 Cr.P.C. prescribes the procedure as to how a complaint may be preferred under Section 195 Cr.P.C........ It is in respect of such offences the court has jurisdiction to proceed under Section 340 of Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction.

24.10 Their Lordships further observed (para 7 - page 282),

"It is made clear that there is no inherent power to make a complaint apart from the provisions of Section 195 Cr.P.C."

24.11 The charge refers to offences Under Section 465, 466, 468, 471, and 474 as well as Sections 182, 193, 195, 196, 199, 200, 205, 209, and 211 of IPC. The substance of the charge is about conspiracy to initiate false and frivolous criminal proceedings before the different courts in the State of Gujarat against the complainant Manohar Mangaram Galani and his associates and thereby obtaining warrants or effecting arrest through investigating agency and keeping such persons in jail to knock out the amount. It is further alleged by the prosecution that by such false and frivolous complaints the accused had fabricated false record and evidence and used the same in court proceedings as genuine and true one and thereby misused the power of keeping the complainant and his witnesses in custody. The contents of the charge sheet thus clearly indicate that there was conspiracy to commit these offences by resorting to initiation of false, frivolous complaints in different courts and for achieving that object fabricated record was prepared and false witnesses were created to initiate proceedings and thereby detained the complainant and his associates in jail and further to compel them to compound the dispute. The abovereferred offences in the charge sheet thus clearly attract the bar of Section 195 of Cr.P.C. The procedure Section 340 of Cr.P.C. has to be followed and unless and until there is a complaint of concerned court before which these offences are alleged to have been committed, decides to record a finding to that effect and also the opinion is formed that it is expedient in the interest of justice to make an inquiry against such persons in relation to the offence committed by them, the filing of a complaint before the appropriate court against such persons is not legally tenable.

24.12 Their Lordships of the Hon'ble Apex Court in the matter of N. Natrajan v. B.K. Subha Rao, AIR 2003 SC 541, clearly observed (para 88 page 546) :-

"In respect of offences adverted to in Section 195 of Cr.P.C. there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 Cr.P.C. is invoked to get over the bar imposed under Section 195 of Cr.P.C."

24.13 Similarly, the Hon'ble Apex Court in the matter of M. Narayandas v. State of Karnataka and others, 2004 SCC (Cri.) 118, clearly observed at para 8 on page 124, after quoting case of State of Punjab v. Raj Singh (1998(2) SCC 391):-

"Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed."

24.14 Similarly, the Hon'ble Apex Court in the matter of Subhashchandra v. State of U.P, & Others, (200) 9 SCC 356, while dealing with the direction of the High Court that, 'the complaint shall be drafted and lodged against the petitioner in accordance with Section 340 of Cr.P.C. and other formalities of law Section 340 of Cr.P.C. r/w Section 195 of Cr.P.C. shall be complied with', clearly observed that, "the stage at which such directions have been issued is, in our opinion, premature.". Their Lordships of the Apex Court, while considering the facts and circumstances of the case, further observed (para 2 on page 356/357):- "The petitioner had only filed a complaint under Section 156 of Cr.P.C., before the Court of Special Sessions Judge, (DAA, Farrukhabad) which is still to be investigated and found out by that Court whether the complaint lodged before that Court was false and had been made with the necessary intention or knowledge to induce the Court to exercise its lawful power so as to cause injury to respondent 3-6. Once those ingredients are established and the charge is found to have been proved, then alone the court can take cognizance of that offence and proceed in the manner directed by the High Court by the impugned judgment."

24.15 Thus, while setting aside the direction issued by the High Court and the order passed by the Special Sessions Judge (DAA) Farrukhabad, Their Lordships of the Apex Court observed (para 8, page 359):

"............... with the observation that the Special Sessions Judge (DAA) Farrukhabad, shall proceed to dispose of the complaint under Section 156(3) of Cr.P.C. in accordance with law and if it is found that the complaint was false and has been filed with the knowledge and intention set-out in Section 182 IPC, the court will proceed further in the manner indicated by the High Court."

24.16 Thus, the concerned court has to record a finding that the proceedings initiated before the Court were false and frivolous based on forged and fabricated evidence and it was expedient in the interest of justice that the proceedings should be initiated after following procedure under Section 340 and 195 of Cr.P.C.

24.17 Furthermore, considering the provisions of Section 195(3) Cr.P.C., it would be required to consider which court can initiate proceedings by following procedure Under Section 340 r/w Section 195 of Cr.P.C. The Hon'ble Apex Court in the matter of Kuldip Singh v. State of Punjab, AIR 1956 SC 391, clearly observed in paragraph 41 (page 400):

"The next question is whether the High Court could itself have made the complaint in this particular case because if it could have done so then we would not have used our extra ordinary powers of appeal under Article 136 to set right what would in those circumstances have been a mere procedural irregularity. But as our opinion is that the High Court had no jurisdiction to act under Section 476 in this case, we are bound to interfere.

As we have shown, Section 195 contains an express prohibition against taking cognizance of the kind of complaint we have heard unless the bar is lifted either by the original court or the court to which it is subordinate within the meaning of Section 195(3). Those are the only courts invested with jurisdiction to lift the bar and make the complaint.

Had this been a case in which the High Court was the superior court within the meaning of Section 195(3), the matter would have been different, but as the High Court was neither the original court nor the court to which the original court was subordinate, according to the special definition in Section 195(3), it had no jurisdiction to make the complaint of its own authority. Therefore, all that the High Court could and should have done was to send the case to the District Judge for disposal according to law. We will, therefore, now do what the High Court should have done."

24.18 Thus, the Apex Court while setting aside the order of the High Court of Punjab remitted the application for making of a complaint to the District Judge to proceed in accordance with law.

24.19 What is the position if some offences other than the one enumerated under Section 195 are also alleged to have been committed by the concerned accused persons and for which the Investigating Agency has filed charge sheet ? Whether it would be open and within the powers of the concerned Court to take cognizance so far as other offences are concerned which are not included Under Section 195 of Cr.P.C. and for which no complaint of that concerned Court is necessary ?

24.20 This issue was first examined by the Supreme Court way back in 1953 and the Supreme Court in the case of Basir Ul Haq and Ors. v. State of Bengal AIR 1953 SC 293 has observed as under:

24.21 Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not induced within the ambit of that section but the provisions of that section cannot be evaded by recording to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the Court or of the public servant is required.

24.22 Offences falling under Ss. 182 and 500 of Penal Code - The ingredients of the offence under Section 182 cannot be said to be the ingredients for the offence under Section 500. Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation.

24.23 The ratio of this judgment is to the effect that if the offences are distinct having been committed in the same transaction then for a distinct offence which is not included Under Section 195 Cr.P.C. the court has powers and jurisdiction to take cognizance. This ratio is explained by the Supreme Court with one rider and the rider is in para 14 of the said judgment, which is as under (page 296): "In other words, the provisions of that section (i.e. S. 195) cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it."

24.24 This judgment of the Hon'ble Apex Court was considered in another judgment of the Apex Court in the case of Dr. S. Dutt v. State of U.P, AIR 1966 SC 523, (in para 9) wherein the Hon'ble Apex Court after considering the same, in paras 15 and 16 on page 329 has observed as under:

"Para 15 - We are, therefore, satisfied that Dr. Dutt's conduct does not come within Section 471. On the other hand, it falls within Section 196 which cast its et wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Section 465/471. The former is punishable with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine.

Para 16 - In this connection we may again recall the words of this Court which were uttered in the forefront by Mr. Chari that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under Section 195 of the Code of Criminal Procedure.; If the offence was under Section 196, Indian Penal Code, a complaint in writing by the Court concerned was required. Before a complaint is made the Court has to consider whether it is expedient in the interest of justice to order a prosecution. In the lesser offence no such complaint by the Court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a device is not to be commended. In our opinion, the offence in the present case did not fall within Section 465/471, I.P.C. and the prosecution launched against Dr. Dutt cannot be allowed to go on."

24.25 Again this issue was examined by the Apex Court in the case of State of Karnataka v. Hema Reddy and Anr. AIR 1981 SC 1417, wherein, the Apex Court in para 8 on page 1421 has observed as under:

"We agree with the view expressed by the learned Judge and hold that in case where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

24.26 Thereafter, once again the Apex Court examined this issue in the case of State of U.P. v. Sureshchandra Shrivasta AIR 1984 SCA 1108, and in para 6, the Supreme Court observed as under (page 1110):

"In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471, and 120B IPC are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code."

25. What is meant by a distinct offence ? What will make two offences distinct ?

25.1 Referring to Section 233 of Cr.P.C. (Section 218 of the new Code), the Apex Court in the case of Banwarilal v. Union of India, AIR 1963 SC p.1620, in para 14 has observed as under (page 1624):

"The question is, what is meant by every distinct offence ? 'Distinct' means 'not identical'. It stresses characteristics that distinguish while the word 'separate' would stress the 'two things not being the same'. Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not."

26. STEPS TAKEN BY THE HIGH COURT ON ITS ADMINISTRATIVE SIDE:

26.1 It may be noted that Mr. H.P. Thakar, who was JMFC, at the relevant point of time, was placed under suspension on 8.2.1994 against whom the departmental enquiry was initiated. The Inquiry Officer found that all the charges levelled against Mr. Thakar are proved and the act of the delinquent Mr. Thakar tantamounts to an act which is unbecoming of a Judicial Officer and such action is a grave misconduct and judicial impropriety. The report of the Inquiry Officer was submitted to the High Court on its administrative side. On going through the report, the High Court agreed with the findings of the Inquiry Officer that the delinquent has committed grave misconduct which is unbecoming of a Judicial Officer and thereby the delinquent has violated the provisions contained in Rule 3 of the Gujarat Civil Services Conduct Rules, 1971. The High Court came to the conclusion that penalty of dismissal would be an appropriate penalty. The High Court, by its order dated 18.6.2001, dismissed the delinquent from service. The State Government, after considering the recommendation of the High Court on its administrative side, vide Resolution dated 16.7.2001 ordered that the delinquent Mr. H.P. Thakar be dismissed from service with immediate effect.

26.2 Being aggrieved and dissatisfied with the order of dismissal, the delinquent Mr. Thakar filed Special Civil Application No. 9207 of 2001 before this Court. The learned Single Judge of this Court (Coram: P.B. Majmudar, J) by order dated 23.1.2002, rejected the said petition by giving detailed reasons. The said judgment has been produced by Mr. Pardiwala from page 388 to 433 on the record of the case. Thereafter, the delinquent Mr. Thakar filed Letters Patent Appeal in this Court which is pending L.P.A. No. 773 of 2002.

26.3 It may be noted that along with Mr. Thakar, there was one R.M. Prajapati who is senior Clerk in the Court of JMFC, Dakor, against whom also, Departmental Enquiry Nos. 2 of 202 and 3 of 2002 were initiated. In Departmental Enquiry No. 2 of 2002 the charge against the delinquent was that he demanded Rs. 100/by way of illegal gratification from Mahesh Mahatre and press reporter who had gone to Dakor to unearth the scandal of issuance of bogus warrants. In this case, the Enquiry Officer issued summons to Mahesh Mahatre and Press Reporter but the same returned unserved. Accordingly, the delinquent was exonerated from the charges levelled against him by the Disciplinary Authority namely District Judge, Kheda at Nadiad. The aforesaid decision of the Disciplinary Authority has been taken in review by the High Court in exercise of its powers under Rule 23 of the Gujarat Civil Services (Appeal & Discipline) Rules, 1971. In Departmental Inquiry No. 3 of 2002 against Prajapati the Inquiry Officer found that the charge against the delinquent was proved. Therefore, the Disciplinary Authority namely District Judge, Kheda at Nadiad, inflicted punishment of withholding of one increment for three years with future effect from the next increment falling due. This decision of the Disciplinary Authority has also been taken in review by the High Court in exercise of its powers under Rule 23 of the Gujarat Civil Services (Appeal & Discipline) Rules, 1971.

27. Establishment of VIGILANCE CELL: (Further steps taken by the High Court on administrative side)

27.1 Mr. Pardiwala, learned counsel, for the High Court has informed us that it is no doubt true that if such type of complaint is there then initially there was no mechanism of machinery wherein an honest citizen can ventilate his grievance against the Judicial Officer. However, he has taken instructions and informed me that now with a view to see that such type of grievance of honest citizen can be made against the erring Judicial Officer and the staff, the High Court has established Vigilance Cell which is operating in the High Court of Gujarat at Ahmedabad. After taking instructions, he has stated as under:

27.2 So far as establishment of Vigilance Cell is concerned, the High Court has taken the issue with the Government in the year 1986 and ultimately the Government has sanctioned for the creation of Vigilance Cell on the establishment of High Court with 13 posts initially for a period of one year from 1988 which has been extended from time to time and it is still functioning today. He has invited my attention to formation of Vigilance Cell by the Government Resolution dated 3.10.1988 and also Vigilance Cell (Judicial Department) Rules, 1986. The said Rule has been passed in exercise of powers of control vested in the High Court under Article 235 of the Constitution of India. The said Rule has been made with a view to provide more effective machinery for the prevention of bribery and corruption and to take appropriate action against the corrupt officials in the Judicial Department in the State.

27.3 I have gone through the Rules and find that the said Rules are quite proper and these Rules can take care of such situation.

FURTHER STEPS TAKEN BY HIGH COURT OF GUJARAT ON ADMINISTRATIVE SIDE:

27.4 He has also invited my attention to letter dated 26.2.2004 issued by the Registrar of this Court that all District and Sessions Judges in connection with fortnightly report with regard to issuance of process in private complaints in which it was stated that all the learned Magistrates before taking cognizance of the offence and pursuant thereto, even while issuing the summons, in the first instance, instead of playing role of mere post office, must carefully screen and scrutinize the complaint and find out for himself whether in fact it contains any germs or the ingredients of offence making out prima facie case to issue process. The said letter further directed that in view of the decisions of the Hon'ble Supreme Court which have been annexed with the said Circular it was stated that the learned Magistrates may record verification of the complaint/witnesses in their own hand writing in the open Court with a specific instruction that any negligence on the part of any Judicial Officer with this regard will be viewed seriously and appropriate actions will be taken immediately against the erring Judicial Officer. Along with the said Circular proforma "P" - statement showing number of cases in which private complaint filed before the Judicial Magistrate, First Class, at the end of fortnight, contains (a) name of judicial officer, (b) Designation (c) details - namely, total private complaints received during fortnight, order passed to investigate under Section 156(3), order passed to investigate under Section 202 of Cr.P.C., process issued under Section 204 of Cr.P.C. i.e. summons, bailable, non-bailable warrant, complaint dismissed under Section 203 of Cr.P.C. He has submitted that this Circular has been issued on the administrative side with a view to see that in future such type of incident which has been under consideration in this petition as well as the incident which has recently occurred in Meghaninagar Metropolitan Court may not be repeated once again. The Registrar of this Court has along with the Circular dated 26.2.2004 annexed various reported decisions for the guidelines of the learned Judges. He has also invited my attention to the observations made by Law Commission in 41st report on page 132, para 16.2 (which is also enclosed with the said Circular) where the Law Commission has observed that every day, experience of the courts shows that many complaints are ill founded, and it is necessary, therefore, that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so that only in substantial cases should the court summon the accused person."

27.5 Learned counsel for the High Court has invited my attention to the Circular dated 3.2.2004 issued by the High Court on the administrative side. The said Circular has been issued after recent incident in Meghaninagar case. The said Circular provides that all the District Judges may remain vigilant with respect to their Courts and other Courts in their Districts and cause frequent inspections so that evil practices do not take place at the hands of unscrupulous persons and people are not harassed unjustifiably through the medium of Courts and its processes.

28. CONCLUSIONS, FINDINGS AND DIRECTIONS:

28.1 It may be noted that this Court is hearing Public Interest Litigation and therefore first of all this Court will have to decide what is the scope of PIL.

SCOPE OF PUBLIC INTEREST LITIGATION:

28.2 I have considered the judgments of the Hon'ble Supreme Court on public interest litigation which I have referred, namely, the case of Ashok Kumar Pandey v. State of W. B. (supra), Guruvayoor Devaswom Managing Committee and Anr v. C.K. Rajan and others (supra) and also the judgment in the case of Chairman & MD, BPL Ltd. v. S.P. Gururaja (supra). These judgments clearly lay down the scope of PIL. The scope of PIL is also subject matter of discussion, debate and comment from various learned authors. The scope of PIL has also been considered in various books by various learned authors which also throw a lot of light on the scope of PIL. 28.3 First of all I refer to the book on Administrative Law by Justice C.K. Thakkar, (now Hon'ble and respected Judge, Supreme Court of India) at page 607 wherein in conclusions the learned author has observed as under:

28.3A "It should not, however, be forgotten that public interest litigation has its own limitations. Ultimately, what is needed is socio-economic change and in a hierarchial society organised around privilege, patronage and power it cannot be brought about just by few public interest litigation actions, however, well intentioned. It is a continuous, arduous task which only the social activists can undertake. Public interest litigation can at best serve as just one more weapon in the armoury of the social activist (Prof. S.K. Agrawala: Public Interest Litigation in India, A Critique, p. 45). It is rightly said:

28.3B "For the downtrodden of the world, we secure their rights by law, exactly as though they had the same privileged background as us, and then, outside the court room we leave them to their separate ways. Ours is not, however, the universe which they inhabit. Their grim, hostile world, which recedes while we are present, returns with a vengeance. This is why our legal victories turn out to be both pyrrhic and dangerous to the poor. There is real danger if legal activists continue to interfere haphazardly, on a short term, case wise basis with the lives of the downtrodden. It is time we learn that it is not enough to expose the innumerable and appalling social evils through the courts and the media. We must link up with social activists who alone can provide them with the ground support." (Dr. Vasudha Dhagamwar, cited by Prof. Agrawala (supra).

28.3C The ultimate guarantee of one's rights, however lies in self-assertion. The poor and the weak must, therefore, be organised and made self-reliant. As Bhagwati, J, states: (Law, Justice and Under Privileged" Key note address at the National Seminar on Unorganised Rural Labour held at New Delhi on Jan. 5-8, 1984; cited by Prof. Agrawala (supra); at p. 46.

28.3D "We must always remember that social action litigation is a necessary and valuable ally in the cause of the poor, but it cannot be a substitute organization of the poor, development of community, self-reliance and establishment of effective organisational structures through which the poor can combat exploitation and injustice, protect and defend their interest and secure their rights and entitlements" (See also Neerja Chaudhary v. State of M.P. (1984) 3 SCC 243; AIR 1984 SC 1099).

28.3E The following observations of a great American Judge must always be borne in mind:

28.3F "A society so riven that the spirit of moderation is gone, no constitution can save; a society where that spirit flourishes, no constitution needs save; a society which evades its responsibility by thrusting upuon the courts the nurture of that spirit, in the end will perish". (Learned Hand: The Spirit of Liberty, (Vintage Books) p. 145.)"

28.4 Mr. R.S. Pathak (former Chief Justice of India), under Article Public Interest Litigation in India, an essay in Honour of Nani Palkhivala, after considering the achievements of PIL, Locus Standi, procedure, a political element, on pages 134-135 in conclusion has observed thus:

28.5 "The great advantage of Public Interest Litigation in a developing society which aspires to egalitarianism and which wishes to hold to the democratic tenets of a modern welfare state lies in its varied choice of techniques, a unique flexibility and a freedom from the tyranny of rigid formalism. That such litigation constitutes an important arm of the jurisdiction of the superior courts in India today is undeniable; equally undeniable is that such a jurisdiction should be exercised with sound judicial wisdom and within the framework and ethos of the Indian Constitution, if it is to command the confidence of the people in the long run."

28.6 Granville Austin - Working a Democaratic Constitution - A History of the Indian Experience - on page 439 observed as under:

28.7 "Judicial independence was most significantly affected during this period by the Supreme Court, itself. In what amounted to a declaration of independence, the Court invented for India the concept of "Public Interest Litigation".

28.8 The learned author on page 440 of the said book in foot note 30 has observed thus:

28.8A "Public Interest Litigation" also called PIL and "social action litigation", in essence gives third parties "standing" to bring before the courts issues in the name of the public interest, including complaints from individuals or groups that could not, themselves bring their case to the courts. An element of this has been called "epistolary jurisdiction" meaning that the Supreme Court may act on receipt of a letter (even a postcard) from a citizen requesting protection of his fundamental rights. Upon receipt of such a communication, the Court may decide to appoint its "Commissioner" to determine if the complaint is worthy of adjudication. If so advised, the Court may proceed from there".

28.8B Professor S.P. Sathe in his book "Judicial Activism in India - Transgressing Borders and Enforcing Limits" on pages 18-19 has observed as under:

"On page 19 .... Public Interest Litigation was used by social action groups as one of the strategies of social action where political mobilization or direct agitation alone did not yield results. Judicial review came to the rescue of powerless minorities with limited political leverage...........

The Indian Supreme Court has also used social action litigation mainly as a counter majoritarian check on democracy for the support of unpopular causes and the protection of politically powerless minorities.

On page 202 it is stated that the Supreme Court of India is the protector and guarantor of the fundamental rights of the people of India, most of whom are ignorant and poor. The liberalization of the rule of locus standi was one of the important factors of PIL. This litigation came to be known as "Public Interest Litigation". All public law litigation is inspired by public interest."

28.8C This is the advantage of PIL as explained by Mr. Sathe in his book.

28.8D Professor Upendra Baxi calls it "Social Action Litigation" which is more appropriate name. Such litigation has been against violation of human rights, for honest and efficient governance, and against environmental degradation. (See: Upendra Baxi "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India" in Dhavan, Sudarshan and Khurshid (Eds.), Judges and the Judicial Powers, p. 289 - Sweet and Maxwell, Tripathi, 1985) - (Judicial Activism in India by Professor S.P. Sathe, page 18).

28.8D Dr. I.P. Massey in his book "Administrative Law" regarding PIL has observed on pages 342-343 as under:

"It is not a litigation in the real sense of the term. It is, in fact, a challenge and an opportunity to undo historical injustice done by a few to many. Therefore, it is totally different from ordinary litigation which is essentially of an adversary character. In SAL, litigation is not considered as a battle to be won but a disease to be cured. Unlike ordinary litigation the purpose of the SAL is not the enforcement of the right of one person against the other but to reach justice to the deprived sections of the society and hence SAL is not so much for the benefit of an individual as it is for a class."

28.9 In view of the same, I have considered the scope of PIL. I have also considered various judgments of the Hon'ble Supreme Court. I have also considered various aspects and decided to give directions in various cases.

28.10 The Court through PIL has provided social justice to millions of people who are unable to approach the Court for the redressal of their grievance. The Courts have shown more concern to provide large mass of people who are declined of their basic rights.

28.11 It may be stated that the Hon'ble Supreme Court in far reaching judgments in cases like in the present proceedings of PIL in the case of Bhagalpur Blindings, Kadra Pahadiya v. State Of Bihar (1981) 3 SCC 671, Anil Yadav v. State Of Bihar (1981) 1 SCC 622; Khatri (I) v. State of Bihar (1981) 1 SCC 623; Veena Sethi v. State of Bihar (1982) 2 SCC 583 and other cases provided desperately needed relief and exposed executive feelings. PIL has also helped in the development of legal principles such as the "polluter pays" principle, the "precautionary" principle and the principle of award of compensation for constitutional wrongs. The endeavour of the Court is that on the one hand there is a desire to resolve the problems of a society where laws are not seen to be enforced, particularly where the petitioner before the Court is espousing a public and not a private cause. Thus, there is an interplay of enforcing the law, moulding it by equity while also responding to the perception of various factors stated in this behalf. It may be noted that in this case the Court is concerned with the standards of judiciary and also the standards of lawyers and their ethics. To that extent this Court has exercised power under Article 226/227 of the Constitution particularly in the PIL the petitioner has exposed public cause.

28.11A Public interest litigation is not in the nature of adversary litigation. The purpose of PIL is to promote the public interest which mandates that violation of legal or constitution rights of a large number of persons, poor, down-trodden, ignorant, socially or economically disadvantaged should not go unredressed. The Court can take cognizance in P.I.L. when there are complaints which shock the judicial conscience, P.I.L. is pro bono publico.

28.12 In view of this position of PIL which I have referred to and various cases which have been dealt with by the Hon'ble Supreme Court it can be said that since early 1980s the Supreme Court of India has developed a procedure which enables any public spirited citizen or a social activist to mobilise favourable judicial concern on behalf of the oppressed classes. The medium through which the access to justice has been democratised is called "Public Interest Litigation". Professor Upendra Baxi, one of the India's foremost legal scholar, preferred to describe the new legal phenomenon as "Social Action Litigation" which was designed to be used only as an instrument of social change genuinely on behalf of the victimised and oppressed classes. It may be noted that Mr. Padiwal has filed litigation with a view to see that the standard of judiciary as well as standard of the lawyers can be improved in view of the issuance of fake and bogus warrant in Dakor case. In view of the scope of PIL, I am of the view, that even though Mr. Padiwal has expired, since he has filed the petition in his capacity as petitioner as well as advocate for the petitioner, in his absence still the petition can be maintainable. It may be noted that earlier learned Single Judge disposed of the petition on the ground of his death but the Hon'ble Supreme Court has reversed the order and directed this Court to hear the matter. Therefore, death of Mr. Padiwal will not come in the way in hearing the matter. Hence this Court has heard this matter.

28.12A In such type of situation it is the constitutional duty of the Court to safeguard and protect the interest of these people so that people can enjoy their constitutionally guaranteed rights to make their life more meaningful. It is the liberal attitude of the Courts in Public Interest Litigation which has provided social justice to the millions of people of India who are unable to approach the Courts for the redressal of their grievances.

29. SCOPE OF QUASHING:

29.1 I have considered the judgment of the Hon'ble Supreme Court in detail in the case of PEPSI COLA (supra), DELHI JUDICIAL SERVICE ASSOCIATION (supra) and the recent judgment in the case of Vijay Shekhar and Anr v. Union Of India And Others reported in 2004(4) SCC 666. It may be noted that the judgment of the Hon'ble Supreme Court in the case of Delhi Judicial Service Association (supra) is to give all facts where the Hon'ble Supreme Court has appointed at the relevant time senior most Judge of the Allahabad High Court Mr. Justice Sahai to enquire into the incident and to submit his report and after giving opportunity to all parties to file objections, ultimately submitted the report and after the submission of the report, even the Hon'ble Supreme Court has given opportunity to all parties to file objections. Whereas in this case as per the direction of this Court, the CID Crime has filed report but no further opportunity has been given to cross examine or filing objection . In view of the same, judgment of the Hon'ble Supreme Court in the case of DELHI JUDICIAL SERVICE ASSN. v. STATE OF GUJARAT (supra) cannot be applied to the facts of the present case.

29.2 It may be noted that in the case of VIJAY SHEKHAR v. UNION OF INDIA (supra) a consensus was arrived at between the parties and therefore the Hon'ble Supreme Court has quashed and set aside the proceedings whereas in this case it is no doubt true the CID Crime has submitted the report stating that all litigations are frivolous and still in some cases chargesheet has been filed. It may be noted that the Hon'ble Supreme Court in appeal has exercised power under Article 142 of the Constitution whereas the High Court exercises power under Article 226 of the Constitution of India. In view of the same, the contention of the learned counsel for the applicant cannot be accepted and I direct all the 10 cases which are listed below be decided by the learned trial Judge in accordance with law after taking into consideration the report submitted by the C.I.D. Crime. It will be open for the honest person to point out these facts as well as the complainant and the learned trial Judge will take into consideration the report of the C.I.D. Crime.

29.3 I have also considered the decision of the Hon'ble Supreme Court in the case of State Of Haryana v. Bhajan Lal reported in AIR 1992 SC 604 particularly paragraph No. 108 on page 629. The Hon'ble Supreme Court in the said paragraph has observed thus:

"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 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 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. xxxxxxxxxx xxxxxxxx

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.

29.4 In para 111 on page 630 of the said judgment the Hon'ble Supreme Court has further observed as under:

"Reverting to the present case, the allegations made in the complaint, in our considered opinion, do clearly constitute a cognizable offence justifying the registration of a case and an investigation thereon and this case does not fall under any one of the categories of cases formulated above calling for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself."

29.4A I have considered the scope of public interest litigation. Broadly, the scope of PIL is for the same public cause because in this case Mr. Padiwal has filed petition against issuance of fake and bogus warrant issued by Dakor Court. His case is that no person who is not a criminal should not be harassed by the order of the Criminal Court. He has raised grievance against the standard of lawyers as well as judicial officers and staff of the subordinate Court. I am of the view that this cause is a public cause. I am, therefore, of the view that this petition is maintainable at law because the grievance raised is really a public cause. However, I have also considered the scope of quashing. In this case it may be noted that the contention of the applicant is regarding quashing of all the Criminal matters filed against him and his family members. The scope of quashing is limited in view of the judgment of the Hon'ble Supreme Court in the case of STATE OF HARYANA v. BHAJAN LAL (supra). It may be noted that the applicant is not a party in the present proceedings in view of the earlier order of this Court. Once the applicant is not a party to these proceedings and as he has not filed any separate petition under Section 482 of Cr. P.C. this Court cannot quash proceedings against the applicant and his family members in P.I.L. filed by late Mr. Padiwal. Once the cause of P.I.L. is public cause, the prayer of the applicant regarding quashing of the criminal complaints against him is not accepted because criminal complaints are not public cause but they are private cause. Therefore, I do not intend to exercise jurisdiction regarding quashing of the complaints. I reject the contention of the learned advocate for the applicant regarding quashing of complaints against him and his family members.

29.4B It may further be noted that in some cases FIR has been filed and in some cases chargesheet has been filed and the Hon'ble Supreme Court has recently held in the case of State Of Punjab v. Kasturi Lal reported in AIR 2004 SC 4087 (particularly para 10 on page 4089) that when chargesheet is filed, scope of quashing is very limited. In view of the same, this Court is conscious of the fact that this Court is hearing PIL filed by late Mr. Ajit Padiwal in connection with fake and bogus warrant issued by the learned Judicial Magistrate First Class, Dakor Court and this Court is not hearing any application under Section 482 of the Cr.P.C. and the scope of PIL is limited. If the applicant has any other alternative remedy available under law then this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India for quashing all the criminal matters as sought to be urged by the learned advocate for the applicant.

29.5 It may be noted that in this case this Court is hearing Public Interest Litigation filed by the petitioner against issuance of fake and bogus warrants. The petitioner has raised question regarding importance of judicial standards and also standard of the advocates. However, incidentally Mr. Raju, learned counsel for the applicant who is not a party to the main matter, has stated that several persons have filed several litigations against the applicant and his family members, the details whereof have been stated earlier and this Court under Article 226 read with Section 482 of the Cr.P.C. may quash and set aside those proceedings initiated against the applicant and his family members. As regards PIL, this Court has considered several judgments including judgment in the case of Bandhua Mukti Morcha (supra). As regards quashing, this Court has considered judgments of in the case of Delhi Judicial Services Association (supra), Pepsi (supra) and Vijay Sekhar and Another (supra). This Court has also considered the judgment in the case of Bhajan Lal (supra) and considering the scope of Section 482 of the Code. This Court has also considered the fact that in this case in some cases charge-sheet has been filed.

29.6 In view of the factual position that the matter is pending since 10 years and in some cases FIR or charge-sheet has been filed and investigation is in progress, this Court is of the view that at this stage this Court cannot quash the proceedings initiated in various Courts. However, interest of justice will be met if I direct the Court concerned to hear and dispose of the matter as expeditiously as possible but not later than six months from the date of receipt of this order.

30. SCOPE OF Sections 195 AND 340 OF CRIMINAL PROCEDURE CODE:

30.1 It may be noted that in this case Scope of Section 195 read with Section 140 of the Code has been raised. It is no doubt true that earlier this Court quashed the proceedings on the ground that there will be bar of Section 195. However, the Hon'ble Supreme Court has reversed the judgment and directed the High Court to hear the Public Interest Litigation after taking into consideration the report of the CID Crime. However a stage has reached by which this Court will have to consider Section 195 read with Section 340 of the Code.

30.2 I have considered Section 195 as well as Section 340 of the Code with various decisions earlier. However, at this stage as regards Section 195, I may refer to book of Ratanlal & Dhirajlal on the Code of Criminal Procedure, 16th Edition, on page 600, the learned author has considered the object and scope of Section 195 and the same is relevant for this purpose. "Object and scope - The object of the section is to protect persons from being needlessly harassed by vexatious prosecutions in retaliation. It is a check to protect innocent persons from criminal prosecution which may be actuated by malice or ill-will. The object of the section is to stop private person from obtaining sanction as a means of wreaking vengeance and to give the Court full discretion in deciding whether any prosecution is necessary or not. Sanction to prosecute cannot now be granted to a private person. Private prosecution, in every case, is more likely to be inspired by the avenging spirit and, indeed, in a system of criminal administration, where the party wronged, rather than a public official, is given the conduct of prosecution, the vice of over-eagerness to obtain convictions predominates. The evil may not be avoided altogether. But at least in the case of offences where the act to a great extent affects the dignity and prestige of the Courts concerned, it is deemed inexpedient to allow such acts to be the sport of personal passions.

30.3 As regards Section 340 of the Code, I quote the relevant portion on page 1026 of the same book as under:

"Object and Scope - This section provides the procedure for offences enumerated in S. 195(1)(b). This section is one of the exceptions to the general rule that any person can lodge complaint of an offence. When an offence is committed in relation to a public servant (S. 195(1)(a)) the sanction of the public servant should first be obtained. When the offence is in relation to a Court (S. 195(1)(b)) the sanction of the Court should be obtained first. Where the offence is not included in S. 195 Cr.P.C., notice under S. 340 Cr.PC., for institution of enquiry under S. 340 Cr.P.C. is not legal. The Court can initiate proceedings under S. 340 Cr.P.C. only for the offences mentioned in S. 195 Cr.P.C."

30.4. I have referred to various judgments of the Hon'ble Supreme Court and other High Courts regarding scope of Sections 195 and 340 of the Cr.P.C. while considering the submissions of Mr. Pardiwala. From those cases the following principles emerge.

30.5 From the various judgments of the Hon'ble Apex Court the position of law so far as applicability of Section 195 to those offences which are distinct and are not included in Section 195 Cr.P.C. can be deduced as under:

(i) Where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences formed an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code.

(ii) If the other offences which are not included under Section 195 are all together distinct offences and are in no way interrelated with each other than perhaps the court may be justified in taking cognizance so far as those offences are concerned and can proceed with a trial.

(iii) The provisions of Section 195 cannot be evaded by the device of charging a person with an offence to which that Section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the IPC, though in truth and substance the offence fall in the category of sections mentioned in Section 195 Cr.P.C.

(iv) Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing or by putting a wrong label on it.

30.6 Keeping in mind the position of law as explained above the Special judge from whom chargesheet has been filed by the Investigating Officer in CR No. 1 of 1995 wherein the charge sheet is also filed for the offences punishable under the Prevention of Corruption Act, 1988, the learned Special Judge will have to apply his mind and record a finding as to whether he will be able to take cognizance under the Prevention of Corruption Act, 1988 so far as certain public servants are concerned. Cursory perusal of the charge sheet may perhaps reveal that the offences under the Prevention of Corruption Act are purported to have been committed by the concerned public servants independently of the alleged conspiracy. The public servants prima facie may not be connected with the alleged conspiracy of fabricating false record and evidence and initiating criminal proceedings which according to the prosecution are bogus and false. To this limited extent the Special Judge may perhaps be able to take cognizance after proper verification of the charge sheet papers and the material.

30.7 The learned Special Judge shall further abide by the directions which this Court may deem fit to issue.

31. DIRECTIONS:

31.1 RE: DAKOR CASE No. 211 OF 1994 - CRIMINAL CASE No. 1063 OF 1994 -

31.1A I have seen that Criminal Case No. 1063 of 1994 registered in the Court of Judicial Magistrate First Class, Dakor. Pursuant to the compliant filed by one Manjulaben Shankerbhai Parmar against seven persons in which the learned Judicial Magistrate First Class, Dakor, Mr. H.P. Thakar issued non-bailable warrant against seven accused persons which included the then Hon'ble Justice M.L. Pendse of Bombay High Court. In that case as noted earlier, on 7.12.1994 the then Sessions Judge, Nadiad, took the order passed by the JMFC, Dakor on 24.11.1994 in Suo Motu revision and called for the record and proceedings of Criminal Case No. 1063 of 1994 from the Court of Judicial Magistrate First Class, Dakor. The learned Sessions Judge has allowed the Revision Application and quashed and set aside the order passed by the learned Judicial Magistrate First Class on 24.111.1994 below the complaint Exh. 1 in Criminal Case No. 1063 of 1994 registering the complaint and issuing bailable warrants against the so called accused persons. The learned Sessions Judge has also transferred the said case from the Court of JMFC, Dakor to the Court of the Chief Judicial Magistrate, Nadiad. Though there is nothing remained, unfortunately, as per the provisions of the Code, still that complaint is pending on the ground that the complainant could not be served.

31.1B In view of the same, I direct Criminal Case No. 1063 of 1994 registered in the Court of Judicial Magistrate First Class, Dakor, be quashed and set aside and no further proceedings are now pending in this regard.

Criminal Case No. 211 of 1994 before Dakor Court

31.1C It may be noted that in view of the incident of Dakor, one Mr. Sevak had filed a complaint and in view of the aforesaid complaint, an FIR was lodged in Dakor against four persons which is Criminal Case No. 211 of 1994, reference of the same has been mentioned earlier. I direct the learned Trial Judge to hear and dispose of the said Criminal Case as expeditiously as possible but not later than six months from the date of the order.

31.2 RE: CRIME CASE No. 1/1995

31.2A In view of all 10 cases which have been filed by different persons, the C.I.D. Baroda recorded FIR and registered Criminal Case against 19 persons and others who were found prima facie involved in filing of false and bogus cases against the applicant and his family members in the various Courts of Gujarat. The said case is numbered as C.R. No. 1/1995. The learned Trial Judge is requested to dispose of the said matter as expeditiously as possible. The learned judge is requested to take into consideration directions of this Court regarding scope of Section 195 and 340 of Cr.P.C. (particularly paras 30 to 30.7) and law discussed earlier in this behalf.

31.3 DIRECTIONS TO BE ISSUED WITH A VIEW TO SEE THAT SIMILAR INCIDENT MAY NOT HAPPEN IN FUTURE:

31.3A It may be noted that in this case it is alleged that bogus complaint has been filed in the names of various bogus persons and the story of all complaints have been concocted. It may be noted that similar incident has been happened in December, 2003 also in Ahmedabad in the Court of learned Metropolitan Magistrate Mr. Brahmbhatt and that matter is pending before the Hon'ble Supreme Court. In view of this, this Court is of the view that if this type of litigation is to be avoided or prevented then this Court must issue certain directions so that frivolous and concocted complaints may not be filed against honest persons. In view of the same, this Court issues the following directions:

31.3B It may be noted that this case also found out from false and bogus complaints filed in Criminal Cases against the applicant and his family members. In the recent case VIJAY SHEKHAR and Anr v. UNION OF INDIA (supra) similar incident has been occurred. With a view to see that such type of incidents are prevented in future, I am of the view that if the following directions can be given to the trial court, such type of incidents can be prevented.

31.3C DIRECTIONS: (with a view that such incidents may not happen in future - Future Safeguard).

(i) Identity of the complainant with full details about full name and address, place of residence, place of occupation, documentary proof if available or may be required to be produced on next date. This should form part of record before initiating any action either under Section 156(3) or 200 or 202 or 204 of the Criminal Procedure Code.

(ii) Averments of facts to be examined and verification of facts to ascertain whether prima facie cognizable offence is disclosed or not.

If yes, whether facts necessitate collection of evidence through police agency and whether any attempt made to avail of such recourse to police.

(iii) On such satisfaction only order under Section 156(3) of Cr.P.C., otherwise investigation under Section 202 of Cr.P.C. Every Magistrate shall record a short order disclosing the reason why he needs investigation under Section 156(3) of the Code through police agency and is not able to try himself. In absence of any such reason, the order to direct inquiry under Section 156(3) should be treated as bad.

(iv) Verification should be recorded in presence of Magistrate or by Magistrate himself.

(v) All details of proceedings taken before Court must be entered in register within 24 hours and the same should be signed by the Magistrate with initial and date.

(vi) All original papers must remain in Court file and only copies duly signed by the Officer of the Court must be forwarded to concerned investigation agency with forwarding letter.

(vii) Similarly, there must be verification about details of accused, if the same is incomplete and vague.

(viii) Process of summons only at first instance and only if circumstances of case demand bailable warrant should be resorted. Unless there are reasons to believe that accused have absconded or that they will not obey the summons, and if such detailed reasons are not recorded in writing by the Court then straightaway non-bailable warrants cannot be issued. Section 204(5) makes it abundantly clear that the said provisions do not affect the provisions contained under Section 87 of the Code.

Similarly, service of summons should be registered post at first instance.

(ix) Maintenance of relevant registers must be checked regularly and occasionally surprise check by C.J.M.

(x) One and the same surety should not be allowed to be produced repeatedly and a certificate to that effect should be produced by an advocate. A register of sureties be prepared and the entries about the same be made in detail therein.

(xi) All types of applications for summons/warrants/notice or return of muddamal be entered in the register. Summons or warrants or notices should not be delivered hand to hand but should be sent to a concerned police station.

31.3D It may be noted that even on administrative side also the High Court has taken certain steps to prevent such incident.

31.3E The learned counsel for the High Court has also pointed out that with a view to see that such type of incident can be prevented, the High Court issued Circular dated 26.2.2004, 3.2.2004 to all subordinate Courts and I have already referred to the said circulars in my earlier para (see: para 27.4 and 27.5). The said directions have been issued by the High Court on administrative side which also the subordinate Courts have to follow.

32. It may be noted that Mr. Anandjiwala, learned counsel has made a distinction between "inquiry" and "investigation" which I have already noted. However, in this case it may be noted that here this Court is concerned with the order passed by this Court on 20.12.1995 by which this Court directed the Director General of Police, Gujarat State to enquire about the incident in question and if necessary to entrust it to the competent senior Officer of the CID Crime. He is further directed to submit the report to this Court as early as possible. Here this Court is concerned with the word "inquiry" used by this Court and not in the legislation. Therefore, the fine distinction made by Mr. Anandjiwala may not be relevant. Here this Court has seen that the CID Crime has considered all facts and filed report from time to time which this Court has considered.

33. SCOPE OF INTERPRETATION OUT OF SUPREME COURT ORDER DATED 27.4.1998.

33.1 It may be noted that initially the Hon'ble Supreme Court during the pendency of the petition by its order dated 27.4.1998 directed the High Court to ensure that the record of 10 cases be kept in custody of the Registrar of the High Court and thereafter the Hon'ble Supreme Court by its final judgment dated 17.11.1999 allowed the appeal. In view of the same, now there is no purpose of keeping the record in the custody of the Registrar. Therefore, I direct that the record of all 10 cases which are pending may be sent back to the trial Court to decide the same in accordance with law after considering various reports.

33.2 It is no doubt true that when the Hon'ble Supreme Court passed final order the Hon'ble Supreme Court has not passed any order but it is understood that once the Supreme Court has finally decided the matter, the order directing to keep the record in the custody of the Registrar of this Court also terminates. In view of the same, the direction to send back the records to the trial Courts is given.

CIVIL APPLICATION No. 5683 OF 2004 FILED BY TARACHAND M. LALWANI:

33.3 I have also considered the Civil Application No. 5683 of 2004 filed by Tarachand M. Lalwani. The contention of Mr. Anandjiwala is that in view of the fact that disputed question of facts is raised therein and as explained the scope of PIL, I am of the view that it is not necessary to entertain this application at this stage. However, it will be open for the applicant Tarachand Lalwani to ventilate his grievance before the learned trial Judge where is complaint has been entertained by the Court. The Civil Application is rejected.

33.4 It may be noted that in this case all these incidents occurred because on one hand the litigant has decided to use the procedure adopted under the Code not for its legal purpose but for its extraneous purpose. Even the lawyers who are engaged also did not use the machinery in accordance with law, for extraneous consideration. It may be noted that the "provision of law is not just a business. It transcends a mere occupation. It is a lifelong communal pursuit of justice." (Re: Justice Peter T. Zarella).

34. It may be noted that all these proceedings which have been initiated before various courts have been initiated at the instance of some of the advocates with the help of some of the litigants who have filed the petitions and tried to obtain the orders on extraneous consideration. The Court must see that, at least, the stream of justice may be kept pure and clean and the same should not be polluted. Judicial Officer has to keep dignity and decorum and independence of the Court and has to see that the orders are passed as per the record of the case and in accordance with law. It is to be seen that in all sections of society, at least, the Judicial Officers working in the subordinate courts work independently and pass orders without any fear or favour and not extraneous consideration. However, it may be noted that there are a lot of allegations in these proceedings that a lot of corruption have been alleged at the level of some of the officers of the police department, some of the advocates and even some of the Judicial Officers and staff of subordinate Court for which proceedings have been initiated and some of the proceedings which I have already referred to. I do not express any view on this subject.

35. In this context, I would like to quote the following quotation which has been quoted by the Hon'ble Mr. Justice R.C. Lahoti (now Hon'ble the Chief Justice of India), Supreme Court of India, while addressing tax conference organized by All India Federation of Tax Practitioners at Indore on 7.9.2002 which will apply to all sections of the society. The learned Judge has observed thus:

"Corruption is a cancer eating into the roots of the society. It is difficult to fight against corruption because the chances of success are bleak but this is no reason for despondency. Nobody is born corrupt; it is the vitiated atmosphere in the society and the system of governance which converts the clean into corrupt. An honest person resists corruption but allurements and temptations at times prevail upon him and once corrupt, even an honest person prefers and finds it convenient to stay corrupt. The seeds of corruption are sown in the mind of the man and the cure, if any, lies in eradicating the seeds of corruption from his mind. An honest revenue official says "The honest are hounded; they are humiliated; they are ignored; they are manipulated; they are used, they are punished; they become the laughing stock in society and in their families; even their very honesty is suspected. In spite of that, there are many many honest officers in the department who remain honest against all adversities. They are a special species; they have to be preserved and protected".

36. It may be noted that Bar Council of Gujarat is represented by Mr. G.D. Bhatt before this Court and he has made detailed submissions which I have noted earlier. He has cited various judgments of the Supreme Court and other Courts. He has also invited my attention to the fact that the Bar Council of Gujarat has taken some steps and the Bar Council of India has also taken some steps in this regard. As per his submissions, there are seven cases pending the details of which are already given. The Court directs to dispose of seven cases which are of 1999, as expeditiously as possible. Till today only one matter against Mr. Khambholjia has been disposed of and other matters are pending. The Bar Council of India is requested to dispose of the following seven cases against various advocates which are of 1999 which are pending since 1999 so that purity can be achieved among the profession of law.

37.(1) I have gone through the judgment of my learned brother Mr. Justice D.K. Trivedi and the final directions issued by him. I fully concur with the directions given by him in this behalf.

37.(2) However, in the interest of justice I am of the view that if the other additional directions may be issued, the same are in the nature of supplementary directions given by my learned brother Mr. Justice D.K. Trivedi and they are not in any way contrary to and inconsistent with the directions issued by my learned brother Mr. Justice D.K. Trivedi. However, for the sake of clarification and certain aspects to be highlighted, I have also decided to give the following directions:

FINAL DIRECTIONS:

38.(1) Criminal Case No. 1063 of 1994 registered before the Court of learned J.M.F.C., Dakor, in connection with bogus warrant issued against seven dignitaries including Hon'ble Mr. Justice Pense of Bombay High Court, the District Court has already exercised suo motu power of revision and quashed that complaint. However, the proceeding is still pending in nature of criminal case No. 1063 of 1994. The said case may be quashed and set aside (see: paras 6.7 & 6.7A).

38.(2) The learned Judicial Magistrate First Class at Dakor before whom Criminal Case No. 211 of 1994 is pending is requested to dispose of the said proceedings as expeditiously as possible but not later than six months from the date of receipt of the order/writ (see: para 6.8).

38.(3) As regards quashing of complaints against the applicant and his family members though Mr. Raju, learned advocate for the applicant has made very forceful submissions but in this case PIL has been filed by Mr. Padiwal where the applicant, is not a party before this Court in view of the order of this Court. He has not filed any independent proceedings under Section 482 of the Cr.P.C. and in view of the fact that in some cases chargesheet has been filed and in some cases FIR has been lodged and in view of the decision in the case of STATE OF HARYANA v. BHAJAN LAL (supra) this Court is not inclined to quash any proceedings initiated against the applicant and his family members in this behalf (reg. details of case see paras 5 to 5.14A)

38.(4) All other courts where about 10 proceedings have been filed against the applicant and his family members, are requested to dispose of the said matters as expeditiously as possible. I am told that out of 10 cases certain matters have been abated. So the remaining matters may be disposed of by the respective courts within six months from the date of receipt of the order/writ.

38.(5) The learned Judge at Vadodara before whom complaint No. 1 of 1995 filed by CID Crime Branch, Baroda is pending is also requested to dispose of the matter at an early date as the matter is of 1995 but not later than one year from the date of receipt of the order (see: para 7.6E).

38.(6) The learned Judge at Vadodara in case No. 1/95 will also consider scope of Sections 195 and 340 of the Cr. P.C. The learned Magistrate/Judge, while dealing with and while disposing of the matter, particularly in case No. 1 of 1995, will have to consider the scope of Sections 195 and 340 of Cr.P.C which I have discussed in paragraph 24.1 to 24.26, 25, 25.1, 30.5(i) to (iv).

38.(7) The Bar Council of India and Bar Council of Gujarat are requested to dispose of all the proceedings which have been initiated against various advocates the details of which are given below (see page 22.9):

1. BCI Tr. Case No. 146/1999 Vinod Chandra Jayantilal Mehta

2. BCI Tr. Case No. 147/1999 Narendra Jethalal Mehta

3. BCI Tr. Case No. 148/1999 Gopal Ramani

4. BCI Tr. Case No. 149/1999 Bamarasinh Mansukhlal Purohit

5. BCI Tr. Case No. 150/1999 Mahemudbeg Allauddin Mirza

6. BCI Tr. Case No. 151/1999 Rajesh Kumar Tribhovandas Gohail

7. BCI Tr. Case No. 160/1999 Ashok N. Advani

38.(8) The Bar Council of India and the Bar Council of Gujarat may examine 10 cases and other bogus cases which have been referred in this matter. After examining the same, if prima facie any of the advocates are also found guilty of dereliction of duties as advocate then action in accordance with law may be initiated.

38.(9) I have already referred to the letter of the Registrar dated 26.2.2004, Circular dated 3.2.2004, along with its enclosure. All the learned District and Sessions Judges, Magistrates are requested to follow the said circular and the said letter very scrupulously and the directions which this Court has given in this judgment on judicial side and the directions issued by the High Court on administrative side are supplementary to each other, there is no conflict and the said directions are not contrary to and inconsistent with the observations made by this Court in this matter. Therefore, all the subordinate Courts are requested to follow the said circular and the letter in this behalf. (see: para 27.4, 27.5)

38.(10) With a view of see that such incident may not be repeated, though it has again been repeated in Ahmedabad, we hope and trust that if the directions which I have extracted may be followed, the same can be usefully adhered to and in future such type of incident can be avoided for that I have reproduced directions in paragraph No. 31.3C(i) to (xi). The same may also be considered as part of this final order. The subordinate Courts are requested to follow these directions also.

38.(11) Civil Application No. 5683 of 2004 filed by Tarachand is rejected.

39. Before concluding, this Court is beholden to Mr. S.N. Shelat, learned Advocate General who has appeared in this matter as amicus curie in his personal capacity as senior counsel and Shri J.B. Pardiwala, learned advocate for the High Court to deal with this matter. Both the learned advocates have very ably assisted this Court. It may be noted that in this matter there is a voluminous record and several facts arise. Moreover, important questions of law regarding PIL, quashing and standards of judiciary and standards of advocates are also involved, but for their able assistance, it would not be possible to decide this matter which has taken so many days in hearing of the matter. This Court is also extending gratefulness to Mr. A.D. Oza, learned Government Pleader, for the State Government, Mr. S.V. Raju, learned advocate for the applicant and Mr. Anandjiwala, learned counsel who appeared on behalf of Tarachand Lalwani and have greatly assisted this Court in resolving this difficult matter which raised very important questions of law and facts.

40. This petition is thus disposed of in light of the directions issued therein. Rule is made absolute to that extent with no order as to costs.

K.M. Mehta, J.

FINAL DIRECTIONS OF DIVISION BENCH:

In this matter the main judgment is delivered by Mr. Justice D.K. Trivedi and certain directions have been given in the said judgment. However, in view of the importance of the matter, Mr. Justice K.M. Mehta has given a separate but concurring judgment in this behalf. Therefore, the final directions of this judgment are of para 118A to 118V of the judgment of my brother justice D.K. Trivedi as well as paras 37.1 to 37.13 of justice K.M. Mehta, all these directions are supplementary to each other and both the directions will have to be followed by the subordinate Courts.

The petition is therefore disposed of accordingly with no order as to costs.