& Anr Vs. Union of India & Ors  Insc 330
(27 April 2004)
Hegde, S.B.Sinha & S.H.Kapadia.
O R D
is a writ petition filed inter alia seeking a writ of mandamus calling upon the
respondents to immediately seize the records pertaining to Criminal Case No.118
of 2004 titled Suresh Kumar Jethalal Sanghvi v. Rajendra Kumar Jain & Ors.
pending in the Court of Metropolitan Magistrate, Court No.10, Meghani Nagar, Ahmedabad,
on the ground that the proceedings in the said case was an example of, the
extent to which the criminal justice system in Subordinate Courts in Gujarat is
writ petition raises important issues of legal and public importance; one
amongst them being the validity of the complaint filed in the Court of
Metropolitan Magistrate, Court No.10, Ahmedabad in a complaint filed by the
said Suresh Kumar Jethalal Sanghvi under Sections 406, 420, 504, 506(1) and 114
IPC against 4 persons named therein and consequential bailable warrants issued
against the said persons by the said court.
of the issues involved in the writ petition require further consideration,
hence it is agreed by all the parties to this petition that those issues can be
separately dealt with. The parties are also at ad idem on the issue of the
validity of the complaint being decided at this stage itself. Hence in this
order of ours we will consider and decide the validity of the complaint
referred to hereinabove.
all the parties to this petition are in one voice have agreed to quash the said
proceedings. We do not think we should do so on the basis of the concession
shown by the parties. In public interest we think it appropriate to consider
the merit of the case and decide the legality of the case on the basis of the
law applicable and material available in the records.
stated in the writ petition that the writ petitioner with a view to expose the
mal-practices in the judicial administration in the subordinate courts in Ahmedabad
had approached one of the lawyers named in the writ petition to procure a non-bailable
warrants against the persons named in the complaint for proving his case of
corruption for which the petitioner was ready and willing to pay such money as
was demanded by the lawyers concerned.
counsel appearing for the writ petitioner has in specific terms contended that
the contents of the complaint based on which cognizance was taken and bailable
warrants were issued are not true and the same is drafted by the lawyers
concerned knowing full well that they are untrue and only with a view to obtain
a warrant for a monetary consideration.
the affidavit filed on behalf of the said lawyers and from the arguments
addressed today on their behalf, it is clear that at least as on today they are
also in agreement with the writ petitioner that the contents of the complaint
are not genuine though they categorically state that the said statement was
recorded at the instance of one Suresh Kumar Jethalal Sanghvi who had
approached them to file a complaint and on the basis of the facts narrated by
him the said complaint was drafted and filed.
that as it may from the above pleadings and the arguments addressed on behalf
of the respective parties before us today, it is clear that the complaint in
question is a product of fraud and a total abuse of the process of court. There
is also serious doubt whether the procedure required under the Code of Criminal
Procedure was really followed by the Magistrate at all while taking cognizance
of the offence alleged. In this background of inherent falsehood that could be
ex facie noticed from the contents of the complaint and coupled with the fact
admitted by the parties to this petition, it is evident that the said complaint
is a fraudulent one, hence, the same is liable to be quashed based on the legal
principle that an act in fraud is ab initio void. This principle in our opinion
applies to judicial acts also.
Court in Express Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors. (AIR 1986 SC 872) at para 118
has held thus :
on power voids the order if it is not exercised bona fide for the end design.
There is a distinction between exercise of power in good faith and misuse in
bad faith. The former arises when an authority misuses its power in breach of
law, say, by taking into account bona fide, and with best of intentions, some
extraneous matters or by ignoring relevant matters. That would render the
impugned act or order ultra vires. It would be a case of fraud on powers.
misuse in bad faith arises when the power is exercised for an improper motive,
say, to satisfy a private or personal grudge or for wreaking vengeance of a
Minister as in S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733 : (AIR 1964
SC 733). A power is exercised maliciously if its repository is motivated by
personal animosity towards those who are directly affected by its exercise. Use
of a power for an 'alien' purpose other than the one for which the power is
conferred is mala fide use of that power. Same is the position when an order is
made for a purpose other than that which finds place in the order.The ulterior
or alien purpose clearly speaks of the misuse of the power and it was observed
as early as in 1904 by Lord Lindley in General Assembly of Free Church of
Scotland v. Overtown, 1904 AC 515, 'that there is a condition implied in this
as well as in other instruments which create powers, namely, that the power
shall be used bona fide for the purpose for which they are conferred'. It was
said by Warrngton, C.J. in Short v. Poole Corporation, (1926) 1 Ch 66 that :
public body can be regarded as having statutory authority to act in bad faith
or from corrupt motives, and any action purporting to be of that body, but
proved to be committed in bad faith or from corrupt motives, would certainly be
held to be inoperative." In Lazarus Estates Ltd. V. Beasley, (1956) 2 QB
702 at Pp. 712- 13 Lord Denning, LJ. said :
judgment of a Court, no order of Minister, can be allowed to stand if it has
been obtained by fraud.
unravels everything." (emphasis supplied) See also, in Lazarus case at p.
722 per Lord Parker, C.J. :
vitiates all transactions known to the law of however high a degree of
solemnity." All these three English decisions have been cited with
approval by this Court in Pratap Singh's case." Similar is the view taken
by this Court in the case of Ram Chandra Singh v. Savitri Devi and Ors. (2003 8
SCC 319) wherein this Court speaking through one of us (Sinha, J.) held thus :
as is well known vitiates every solemn act. Fraud and justice never dwell
together. Fraud is a conduct either by letter or words, which induces the other
person or authority to take a definite determinative stand as a response to the
conduct of the former either by word or letter. It is also well settled that
misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation
may also give reason to claim relief against fraud. A fraudulent
misrepresentation is called deceit and consists in leading a man into damage by
willfully or recklessly causing him to believe and act on falsehood. It is a
fraud in law if a party makes representations which he knows to be false, and
injury ensues therefrom although the motive from which the representations
proceeded may not have been bad. An act of fraud on court is always viewed
seriously. A collusion or conspiracy with a view to deprive the rights of
others in relation to a property would render the transaction void ab initio.
and deception are synonymous.
in a given case a deception may not amount to fraud, fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be perpetuated or
saved by the application of any equitable doctrine including res judicata."
Thus, it is clear a fraudulent act even in judicial proceedings cannot be
allowed to stand.
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 a fictitious person, and an abuse of
the process 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 non-bailable
warrants is liable to be declared ab initio void, hence, liable to be set
however, make it clear that the quashing of the abovesaid proceedings before
the Metropolitan Magistrate, Court No.10, Ahmedabad would not in any way
exonerate any of the parties to the above writ petition of charges levelled
against them and the same will be considered independently and de hors the
quashing this criminal proceedings.
also make it clear that any observations made in the course of this order in
regard to the role played by the respective parties in this episode are only
tentative and are made for the limited purpose of deciding the validity of the
criminal case pending before the Magistrate and the same will not be treated as
a conclusive finding in any future proceedings.
the reasons stated above, the complaint as well as the entire proceedings
culminating in issuance of bailable warrants in Criminal Case No.118 of 2004
filed before the Metropolitan Magistrate, Court No.10, Ahmedabad, are quashed.
other issues involved in this case will be separately dealt with.