Criminal Misc. No. M-31427 of 2008 v. Gian Parkash Bhambri

I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

5. The Counsel for the petitioner, submitted that admittedly, Ashish Ahuja Shelly, petitioner, who is an accused, in the aforesaid complaint, is residing, in USA. She further submitted that, in Section 482 Cr.P.C., there is no reference to 'person aggrieved'. She further submitted that, if there is abuse of the process of Court, a person, genuinely interested, in the accused, can file a petition, under Section 482 Cr.P.C. She further submitted that, since the complaint, the summoning order, and all the subsequent proceedings, arising Criminal Misc. No. M-31427 of 2008 4 therefrom, are nothing, but an abuse of process of the Court, Indu Ahuja, attorney of the petitioner, being genuinely interested, in the matter, had locus-standi, and the petition, could be filed, through her, by the petitioner. She further submitted that almost all the alleged offences, were committed in Dubai. She further submitted that, since the cause of action, arose within the jurisdiction of Courts, at Dubai, the complaint, could not be filed, in the Courts, at India. She further submitted that, since the complaint, the summoning order, and all the subsequent proceedings, arising therefrom, are the abuse of process of the Court, the same, are liable to be quashed.

6. On the other hand, the Counsel for the respondent, submitted that, petition under Section 482 Cr.P.C., filed by the petitioner, through his attorney, is not maintainable. She also repudiated the remaining submissions, made by the counsel for the petitioner.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, being not maintainable, for the reasons, to be recorded, hereinafter. Admittedly, the aforesaid complaint, was filed, against the petitioner and his co-petitioners, in the Courts, at India. There is, no dispute, about the factum, that Ashish Ahuja Shelly, petitioner, is residing, in USA. In Janata Dal Vs. H.S. Chaudhary and others, JT 1991 (3), SC, 497, it was held, as under:- “Even if there are million questions of law Criminal Misc. No. M-31427 of 2008 5 to be deeply gone into and examined in a criminal case registered against specific accused persons, it is for them and they alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. It was further held that the petitioner in that case (H.S. Chaudhary) had no locus standi to invoke the extraordinary jurisdiction of the High Court, under Section 482 Cr.P.C., for quashing the FIR and all other proceedings arising therefrom on the plea of preventing the abuse of process of the Court. In the above mentioned case the accused persons where alive and were capable of defending themselves and protecting their interests and it was also not shown that the petitioner Mr. H.S. Chaudhary had any particular or special interest in the accused persons.”

8. In Simranjit Singh Mann Vs. Union of India and another, AIR, 1993, SC, 280, the Apex Court, held, as under :- “Ordinarily the aggrieved party which is affected by any order has the right to seek redress by questioning the legal validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which in law recognized as sufficient to permit any other person e.g. next friend, to move the Court on his behalf. It was also held that if a guardian or a next friend initiates proceedings for and, on behalf of such a disabled aggrieved party, it is, in effect, proceedings initiated by the party aggrieved and not by a total stranger, who has no direct personal stake, in the outcome thereof. In the above mentioned case, a leader of a political party approached the Supreme Court under Article 32 of the Constitution of India, challenging the conviction and sentence of the assassins of Gen. Vaidya. The two convicts were alive but did not file any appeal against the conviction and sentence. The Apex Court, Criminal Misc. No. M-31427 of 2008 6 held that the petitioner, in that case, had no locus standi to invoke the jurisdiction under Article 32 of the Constitution.”

9. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal, that it is only the accused person, against whom, a criminal case, has been registered or a criminal complaint, has been filed, can file a petition, under Section 482 Cr.P.C., in the High Court, for quashing the complaint, the summoning order, and the subsequent proceedings, and no third person, can fight a proxy war, on his behalf, under the garb of public interest litigant. The aggrieved party, which is affected by an order, is required to seek redress of its grievance, by questioning the legal validity or correctness of the same. It is another thing, if the aggrieved party, is suffering from some disability i.e. unless such party is a minor, an insane person, or is suffering from any other disability, which, in law, is recognized as sufficient to permit any other person e.g. next friend, to move the Court, on his behalf. On behalf of minor, or insane person, a guardian or a next friend, initiates proceedings, so as to challenge the legality and validity of the order, passed against him, to seek redressal of the grievance, as under law, such a person having disability, cannot be said to be competent, to file a petition, except through next friend or guardian. In the instant case, there is nothing, on the record, that Ashish Ahuja Shelly, petitioner, is suffering from any disability, recognized by the provisions of law. He is an accused, in the aforesaid complaint. It is he, who is aggrieved, against the complaint and the summoning Criminal Misc. No. M-31427 of 2008 7 order. It is he, who can challenge the same, on any ground which may be available to him, under the provisions of law. If, in criminal cases, until and unless, a person aggrieved, suffers from some disability, recognized by law, a stranger or some other person, is allowed, to fight the proxy war, then the very purpose of criminal justice system, shall be defeated. In that event, the Courts, would be mushroomed, by public interest litigants. In this view of the matter, the present petition, under Section 482 Cr.P.C., filed by the petitioner, through his attorney, is not maintainable. On this ground alone, the same is liable to be dismissed.

10. The Counsel for the petitioner, however, placed reliance on Ravi Gupta Vs. R.C. Tiwari, 2008(6), A.D. (Delhi), 655, Gurmit Kaur Vs. State of Punjab and another, Criminal Misc. No. 13472-M of 2000, decided, on 06.09.02, by this Court, and, Kuldip Kaur @ Joginder Kaur Vs. State of Punjab, Criminal Misc. No. 28203-M of 2004, decided, on 03.04.06, by this Court, in support of her contention that the petition, under Section 482 Cr.P.C., is maintainable by the accused through attorney. In Ravi Gupta's case (supra), the question, that fell for consideration, was, as to whether, a complaint, under Section 138 of the Negotiable Instruments Act, 1881, could be filed, by the complainant, through a power of attorney. The Delhi High Court, held that, the complaint, could be filed, through a power of attorney, after obtaining the leave of the Court, for pursuing the same, through the said attorney. In Gurmit Kaur's case (supra), no doubt, a single Bench of this Court, held that, Criminal Misc. No. M-31427 of 2008 8 a petition, under Section 482 Cr.P.C., for quashing the criminal proceedings, could be filed, through an attorney. Reliance therein, was placed, on Ravulu Subha Rao and others Vs. Commissioner of Income Tax, Madras, 1956 (SC), 604. The careful perusal of the facts of Ravulu Subha Rao and others' case (supra), clearly goes, to show, that the question, before their Lordships of the Apex Court, that fell for determination, was with regard to the interpretation of Section 2 of the Power of Attorneys Act. In Ravulu Subha Rao and others' case (supra), no question, fell for decision, before the Apex Court, as to whether, the accused/petitioner, could file a petition, under Section 482 Cr.P.C., for quashing the criminal proceedings, through attorney. Not only this, even the co-accused of Gurmit Kaur, accused/petitioner, in Gurmit Kaur's case (supra), had already been acquitted, by the trial Court. This Court, taking into consideration, the factum, that the evidence, against Gurmit Kaur, accused/petitioner, was the same, as was against her co-accused, who were acquitted, after trial, no useful purpose, shall be served, by keeping the criminal proceedings alive, and, as such, the same were quashed. In Kuldip Kaur @ Joginder Kaur's case (supra), no question, fell for decision, before a single Bench of this Court, as to whether, a petition, under Section 482 Cr.P.C., could be filed, by an accused/petitioner, through an attorney. However, the Counsel, appearing for the petitioner, in Kuldip Kaur @ Joginder Kaur's case (supra), submitted that the petitioner, was ready to return, to India, and face prosecution. It was, under these circumstances, that this Criminal Misc. No. M-31427 of 2008 9 Court, in Kuldip Kaur @ Joginder Kaur's case (supra), directed that, on the appearance of the petitioner, in the Court, within the stipulated time, she shall be admitted to bail, on furnishing the bail bond and the surety bond. In none of the aforesaid cases, relied upon, by the Counsel for the petitioner, any invariable principle of law, was laid down, that a petition, under Section 482 Cr.P.C., for quashing the criminal proceedings, could be filed, through an attorney. These cases were decided, on the peculiar facts and circumstances, prevailing therein. No help, therefore, can be drawn, by the Counsel for the petitioner, from the aforesaid cases. Even otherwise, in view of the principle of law, laid down, in Janata Dal's, and, Simranjit Singh Mann's cases (supra), decided, by the Apex Court, any principle of law, to the contrary, if at all, laid down, in the cases, relied upon by the Counsel for the petitioner, shall not hold the field. In this view of the matter, the submission of the Counsel for the petitioner, being without merit, must fail, and the same stands rejected.

11. For the reasons recorded above, Criminal Misc. No. M-31427 of 2008, being not maintainable, through attorney stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

06.05.2010 Amodh (SHAM SUNDER) JUDGE