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CASE NO.: Writ Petition (civil)  46 of 2004

PETITIONER: Vijay Shekhar & Anr.

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH: N.Santosh Hegde, S.B.Sinha & S.H.Kapadia.

JUDGMENT: J U D G M E N T

O R D E R

       This 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 corrupted.           This 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.         Many 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.          Though 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.            It is 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.          Learned 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.  From the affidavit filed on behalf of the said lawyers and

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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.  Be 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.  This Court in Express Newspapers Pvt. Ltd. & Ors. v.  Union of India & Ors. (AIR 1986 SC 872) at para 118 has held  thus :  

         "Fraud 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.  The 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

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they are conferred’. It was said by  Warrngton, C.J. in Short v. Poole  Corporation, (1926) 1 Ch 66 that :

       "No 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 :

       "No judgment of a Court, no  order of Minister, can be allowed to  stand if it has been obtained by fraud.  Fraud unravels everything."    (emphasis supplied)

       See also, in Lazarus case at p.  722 per Lord Parker, C.J. :

       "’Fraud’ 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 : "Fraud 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

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render the transaction void ab initio.  Fraud and deception are synonymous.  Although 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.         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 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 aside.            We, 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.         We 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.         For 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.         The other issues involved in this case will be separately  dealt with.