Harshadbhai Chunilal Vasava & 5 vs State Of Gujarat & on 20 March, 2015

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Gujarat High Court

Harshadbhai Chunilal Vasava & 5 vs State Of Gujarat & on 20 March, 2015

1. The petitioners have preferred this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), wherein, they have prayed that the FIR being C.R.No.I45/2014 registered with Valia Police Station, District Bharuch, be quashed and set aside.

2. Heard learned advocate Shri Nikhil S. Kariel for the petitioners, learned advocate Shri Jal Unwala with learned advocate Ms. Tejal A. Vashi for respondent No.2 and learned APP Ms. Maithili Mehta for respondent No.1 - State of Gujarat.

3. Learned advocate for the petitioners submitted that the FIR being C.R.No.I45/2014 came to be registered with Valia Police Station, District Bharuch, against the petitioners for commission of the offences punishable under sections 447, 427 and 120B of the Indian Penal Code. Learned advocate referred to the allegations made in the impugned FIR and submitted that the complainant - respondent No.2 has stated that he is the owner and occupier of the land bearing Block Nos. 262 and 246, situated at Mouje Gundia, Taluka Valia and land bearing Block Nos. 164 and 164B, situated at Mouje Petia, Taluka Valia, District Bharuch. The complainant has further stated that his father had expired on 02.07.2009. His sister Dollyben Keki Pithawala is residing at Mumbai. It is alleged by the complainant that on the basis of the false and fabricated will of their father allegedly executed on 21.08.1999, the sister of the complainant got her name entered into the revenue record as the owner of the land. Civil proceedings are pending between complainant and his sister. It is stated by the complainant in the impugned FIR that he is in possession of the property and District Court has passed an order in Civil Appeal No.27 of 2010, wherein the District Court has clearly stated that the complainant is in possession of the property and thereby directed the sister of the complainant viz. Dollyben not to sell or transfer the land in Page 2 of 14 R/SCR.A/5087/2014 JUDGMENT question and to maintain status quo with regard to the land. The complainant also alleged that petitioner No.2 has purchased the said land from Dollyben and on 02.06.2014 petitioners and other accused in a preplanned manner and as a part of conspiracy had entered the land bearing Block No. 262 situated at Mouje Gundia illegally and had cut down sugarcane crop from the part of the land and had erected 6 cement poles and thereby attempted to take possession of the property and thereby the accused have committed the offence punishable under sections 447, 427 and 120B of IPC.

4. Learned advocate for the petitioners further submitted that the impugned FIR is nothing but a gross abuse of process of the Court and therefore to secure the ends of justice, this Court may exercise the powers under Section 482 of the Code read with Article 226 of the Constitution of India and thereby to quash and set aside the impugned FIR. Learned advocate further submitted that one E.H. Variava was the father of the complainant, Dollyben i.e. the predecessorintitle of petitioner No.2 and brother of the complainant. Late Shri E.H.Variava had executed a registered will on 21.08.1999, whereby, he had bequeathed the lands in question to his daughter Dolatben alias Dollyben Keki Pithawala. He has further submitted that in the last years of his life, late E.H.Variava was not keeping good health and therefore he had entrusted the lands to one of his trusted person Shri Deepsinh Vasava to carry out agricultural activities. The predecessorintitle of petitioner No.2 i.e. Dollyben had come from Mumbai at the time of death of her father and as per the wishes of her late father, the possession of the lands in question was handed over to her by said Shri Deepsinh Vasava. Thereafter, on the basis of the registered will dated 21.08.1999, said Dollyben had submitted an application to the Mamlatdar, Valia for mutation of her name as an owner of the property. The respondent No.2 - complainant and his brother had taken objections Page 3 of 14 R/SCR.A/5087/2014 JUDGMENT against the certification of entry whereby the name of Dollyben had been entered into the revenue record. The Mamlatdar had certified the entry with regard to land bearing Survey Nos. 164A and 164B situated at Mouje Petia and also certified the entry with regard to the land bearing Survey No. 262 situated at Mouje Gundia. Learned advocate further submitted that the complainant and his brother had challenged certification of both the aforesaid entries before the Deputy Collector, Ankleshwar. The Deputy Collector upheld the decision of the Mamlatdar. However, he further directed that since the civil suit is pending before the civil Court at Valia, the decision in the said suit would be adhered to by the parties. Meaning thereby, rights of the parties would be based on the final decision of the civil suit. Learned advocate further submitted that the order passed by Deputy Collector was challenged before the Collector, who has also confirmed the order of Deputy Collector. But, thereafter, the complainant, his brother and his son have challenged the order passed by the Collector before the Secretary, Revenue Department. The Secretary, Revenue Department has directed the parties to maintain status quo as directed by the Civil Court in Regular Civil Suit No.21 of 2009.

5. Learned advocate for the petitioners further submitted that Regular Civil Suit No.21 of 2009 was filed by Dolatben @ Dollyben Keki Pithawala, wherein she has prayed that she may be declared as owner and occupier of the properties which were bequeathed to her by her late father E.H.Variava by registered will dated 21.08.1999. In the said proceedings, complainant and his brother were joined as parties. They filed an application Exh.29 on 26.03.2010 under Order 39, Rule 1 and Section 151 of the Code of Civil Procedure, wherein, they had inter alia sought for an interim direction that the lands shown in the plaint shall not be sold, transferred, alienated or any third party right should not be created in any manner whatsoever till the final disposal of the said suit.

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6. Learned advocate for the petitioners further submitted that in the interregnum, since the predecessorintitle of petitioner No.2 i.e. Dollyben was shown as owner of the property in the revenue record and since there was no interim order against the said Dollyben for selling the lands in question, petitioner No.2 had shown her interest to purchase the lands in question since the predecessorintitle of petitioner No.2 was not very keen to start agricultural activities on the lands in question. Therefore, she wanted to sell the same. Learned advocate, therefore, submitted that petitioner No.2 had purchased the land bearing survey Nos. 164A and 164B situated at Mouje Petia and land bearing survey No.262 situated at Mouje Gundia by way of registered sale deeds dated 25.05.2010. Thereafter, the said Dollyben gave an application Exh.33 in Regular Civil Suit No.21 of 2009 and thereby requested to withdraw the said suit with a liberty to file a fresh suit since there were some technical issues which were required to be addressed. The complainant and his brother (the defendants) had taken strong objection against the pursis submitted by said Dollyben to withdraw the suit. Learned civil Court, Valia passed an order on 10.06.2010, whereby, the applications given by the original defendants i.e. complainant and his brother were partly allowed and thereby the learned civil Court directed the parties to maintain status quo with regard to the suit property as existed at the time of filing of the suit.

7. Learned advocate further submitted that the complainant and his brother were not satisfied with the said order and therefore they filed a Misc. Civil Appeal No. 27 of 2010 before the learned District Court. The learned District Court was of the opinion that the order of status quo passed by learned trial Court deserves to be clarified as the learned trial Court has not disclosed the nature of status quo. The learned District Court, therefore, held that the suit properties are in possession of defendant/appellant ( present respondent No.2 - complainant ). Thus, Page 5 of 14 R/SCR.A/5087/2014 JUDGMENT learned advocate for the petitioners submitted that the present respondent No.2 - complainant was claiming possession of the land in question on the strength of the order passed by the learned District Court. At this stage, learned advocate further submitted that when petitioner No.2 came to know about the order passed by the learned District Court, the said order was challenged before this Court by filing Special Civil Application No.18012 of 2014 and this Court was pleased to stay implementation, execution and operation of the order passed by the learned District Court. In the aforesaid factual background of the case, learned advocate further submitted that petitioner No.2 is the owner of the lands in question. She purchased the same by registered sale deed and therefore the allegation of criminal trespass would not lie against the owner of the land in question.

8. Learned advocate further submitted that there is no negative injunction against the petitioner No.2 or against the other petitioners issued by any Court of law which restrains them from entering in the land in question. Thus, under such circumstances, allegations of criminal trespass against the petitioner No.2 and her associates cannot be believed. Learned advocate further submitted that for establishing the allegation of criminal trespass, the respondent No.2 - complainant has to make out that he has some right over the land in question. However, he has failed to establish any right in the said property. Therefore, the complaint would not lie. Learned advocate further submitted that for establishing the allegation of criminal trespass, the complainant has to establish his possession. However, in the aforesaid factual background of the case, except for the order passed by the learned District Court dated 28.09.2011, there was no other legal support available to the complainant to claim possession upon the land in question. The order of the learned District Judge is now stayed by this Court and therefore also the complainant cannot rely upon the said order.

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9. Learned advocate for the petitioners has relied upon the interim order passed by this Court on 16.12.2014 in the present petition, wherein, this Court has made certain observations. Relying upon the said observations, learned advocate submitted that the complainant could not establish his possession upon the land in question. Learned advocate has submitted that the complainant has filed the impugned FIR as part of a well thought about strategy to take possession of the land in question because immediately after filing of the impugned FIR number of other FIRs came to be filed alleging theft, trespass, etc. against the petitioners. Learned advocate, therefore, submitted that when the civil as well as the revenue dispute is pending before the concerned civil Court as well as revenue authority with regard to the land in question and when the complainant has failed to establish his ownership as well as the possession of the land in question, impugned FIR is nothing but a gross abuse of process of the Court and therefore this Court may quash and set aside the same in the interest of justice.

10. On the other hand, learned advocate Shri Jal Unwala appearing on behalf of respondent No.2 - original complainant has mainly submitted that the socalled will dated 21.08.1999 alleged to have been executed by the father of the respondent No.2 bequeathing the lands in question to his daughter i.e. Dollyben, is a forged and fabricated will. Therefore, when the name of the sister of the respondent No.2 i.e. Dollyben was mutated in the revenue record, the respondent No.2 and his brother had taken the objections before the concerned revenue authority and lastly the Secretary, Revenue Department had passed an order whereby the parties were directed to maintain status quo. Learned advocate has relied upon the document dated 18.07.2009, which is in the nature of family partition deed. The said deed has been entered into between the respondent No.2, his brother and their sister Dollyben Pithawala i.e. the predecessorintitle of the petitioner No.2, whereby the Page 7 of 14 R/SCR.A/5087/2014 JUDGMENT properties including the disputed properties had been partitioned between 3 of them. The said document is produced at page 66 of the compilation. Learned advocate has relied upon the said document and submitted that Dollyben was not having right on the disputed property as she has waived her right on the property in dispute.

11. Learned advocate for respondent No.2 further submitted that respondent No.2 - complainant had preferred an application for joining the petitioners as party in the proceedings of Regular Civil Suit No.10 of 2010. The petitioners filed reply in the year 2013. Therefore, the petitioners were aware about the pendency of the civil proceedings between the complainant and his brother against their sister Dollyben. Learned advocate has referred to pages 69 and 71 of the compilation and submitted that in the said application exhibit Nos. 25 and 26, the complainant and his brother have specifically stated that though the learned trial Court has directed the parties to maintain statusquo, defendant Dollyben has sold the land to Hemaben Bhogilal Vasava (petitioner No.2 herein). The complainant and his brother are in physical possession of the land from the beginning and therefore Hemaben Bhogilal Vasava petitioner No.2 herein, be joined as defendant No.2 in the said proceedings. Petitioner No.2 Hemaben filed a reply to said application, which is produced at page 75 of the compilation. Thus, the learned advocate submitted that the petitioners were aware about the pendency of the litigation between the parties the respondent No.2 - complainant and Dollyben. In spite of that, petitioner No.2 has intentionally purchased the land in question from Dollyben.

12. Learned advocate for respondent No.2 further submitted that complainant is in possession of the disputed property. He has referred to the documents produced at page 69, 71, 79 and 92 to 104 of the compilation. Relying upon the said documents, he has submitted that Page 8 of 14 R/SCR.A/5087/2014 JUDGMENT respondent No.2 complainant is in the possession of the said property and therefore when the petitioners have forcibly entered into the said land the impugned FIR is filed against them. Learned advocate has also referred to various FIRs which have been lodged against the petitioners. Learned advocate Shri Jal Unwala further submitted that this Court has made an observation in Special Criminal Application No.4403 of 2014 filed by respondent No.2 that there is substance in the allegations levelled by the complainant and the present petitioners are evading arrest and are absconding. Learned advocate, therefore, requested that this Court may not exercise the discretion in favour of the petitioners.

13. Learned advocate Shri Jal Unwala has produced on record a copy of memo of Special Civil Suit No.97 of 2014 filed by respondent No.2 and his brother against Dolly alias Dolatben Keki Pithawala and petitioner No.2 herein. The said suit is filed with a prayer of declaration, injunction and to cancel the registered sale deed dated 25.05.2010 executed between defendant No.1 - Dolyben and defendant No.2 - Hemaben.

14. Learned advocate further submitted that the ingredients of alleged offence are prima facie made out in the impugned FIR and therefore when prima facie case is made out against the petitioners, this Court may not evaluate the evidence at this stage when the investigation is pending. The evaluation of the evidence is a matter of trial and therefore the same may not be looked into at this stage. Learned advocate Shri Unwala has relied upon the decisions rendered by the Hon'ble Supreme Court in the case of Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners P. Ltd., reported in 2009 (11) SCC 529 and also in the case of Vijayander Kumar v. State of Rajasthan, reported in (2014) 3 SCC 389. Relying upon the aforesaid decisions, learned Page 9 of 14 R/SCR.A/5087/2014 JUDGMENT advocate submitted that while entertaining the petition under Section 482 of the Code, the material furnished by defence cannot be looked into and the same can be entertained only at the time of trial. Thus, in substance, learned advocate submitted that the petition be dismissed.

15. Learned APP Ms. Maithili Mehta has adopted the arguments canvassed by the learned advocate for respondent No.2 - original complainant.

16. I have considered the rival submissions canvassed by the learned advocates appearing on behalf of the parties. I have also gone through the documents produced on record as well as the decisions relied upon by the learned advocates. From the submissions canvassed by the learned advocates for the parties and from the documents produced on record, following facts emerge:

(i) One E.H. Variava was the owner of the lands in dispute. One Dolatben alias Dollyben Keki Pithawala, respondent No.2 and his brother are the legal heirs of late Shri E.H.Variava. As per the case of Dollyben, her father has bequeathed property in dispute by way of registered will dated 21.08.1999 in her favour and therefore she is the owner of the said property. Dollyben is residing at Mumbai. Dollyben filed Regular Civil Suit No.21 of 2009 before the Civil Court, wherein, respondent No.2 and his brother filed an application Exh.29 on 24.03.2010 under Order 39, Rule 1 read with Section 151 of the Code of Civil Procedure.

The said application was partly allowed, whereby the learned Civil Court directed the parties to maintain the status quo by an order dated 10.06.2010. Thus, from the record it appears that order of status quo was granted by the learned Civil Court. The respondent No.2 and his brother were not fully satisfied with the said order and therefore they preferred Misc. Civil Appeal No.27 of 2010 before the learned District Court.

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R/SCR.A/5087/2014 JUDGMENT Learned District Court passed an order on 28.09.2011 in favour of respondent No.2 and his brother and held that the suit properties are in possession of the respondent No.2 and his brother.

(ii) The said order is recently challenged after a period of more than 3 years before this Court by the petitioner No.2 by filing Special Civil Application No.18012 of 2014 and the said order is stayed by this Court by an order dated 11.12.2014. Thus, it is clear that after the registration of the FIR, the petitioners have preferred the aforesaid petition before this Court.

(iii) In revenue proceedings also, Secretary, Revenue Department, has passed an order whereby the parties are directed to maintain statusquo with regard to the suit property.

(iv) The petitioner No.2 has purchased the property in dispute by a registered sale deed dated 25.05.2010 i.e. during the pendency of the civil proceedings between Dollyben on one hand and respondent No.2 and his brother on the other hand. Therefore, the contention taken by the learned advocate for the petitioners that as there was no order of stay granted by any Court, the petitioner No.2 has purchased the said land from Dollyben, suggests that petitioner No.2 was aware about pendency of proceedings between the complainant and his sister Dollyben.

(v) The case of the respondent No.2 is that he is in possession of the land in dispute since beginning for which documentary evidence are also produced on record.

17. Thus, in view of the aforesaid factual aspects of the matter, when the complainant - respondent No.2 has alleged that he is in possession Page 11 of 14 R/SCR.A/5087/2014 JUDGMENT of the land in dispute and the petitioners had criminally trespassed upon the said land and thereafter cut down sugarcane crop on the part of the land and erected six cement poles, in the opinion of this Court, ingredients of the alleged offence are clearly made out in the impugned FIR. No doubt the civil dispute is pending between the parties with regard to the land in dispute but when prima facie the respondent No.2

- complainant has pointed out from the record that he is in possession of the land in dispute and the petitioners have forcibly entered into the said land during the pendency of the civil proceedings in spite of the order of status quo passed by the concerned Court, the impugned FIR cannot be quashed at its threshold. In the opinion of this Court, investigation is required to be carried out by the Investigating Officer. Petitioners - accused can point out the relevant aspects before the Investigating Officer and after the investigation is concluded, if the I.O. is of the opinion that the accused have not committed any offence, he will file appropriate report before the concerned Magistrate Court. However, at the initial stage the impugned FIR cannot be quashed mainly on the ground that civil proceedings are pending before the civil Court.

18. In the case of Ravindra Kumar Madhanlal Goenka (Supra), the Hon'ble Supreme Court, while discussing its earlier decision, observed that the power to quash shall not be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. A given set of facts may make out purely a civil wrong; or purely a criminal offfence; or a civil wrong as also a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. The Hon'ble Supreme Court thereafter further Page 12 of 14 R/SCR.A/5087/2014 JUDGMENT held that while entertaining a petition under Section 482 of the Code, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is well settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very extreme cases. The Hon'ble Supreme Court, therefore, dismissed the said appeal by making the aforesaid observations.

19. The Hon'ble Supreme Court in the decision rendered in the case of Vijayander Kumar (Supra) observed in para 12 as under:

"12. Learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint discloses a criminal offence or not. This proposition is supported by several judgments of this Court as noted in paragraph 16 of judgment in the case of Ravindra Kumar Madhanlal Goenka and Another v/s. Rugmini Ram Raghav Spinners Private Limited, (2009) 11 SCC 529."

20. In view of the aforesaid decisions rendered by the Hon'ble Supreme Court, I am of the opinion that in the facts and circumstances of the present case, when the ingredients of the alleged offences are clearly made out in the FIR, it is not proper for this Court to exercise the powers under Article 226 of the Constitution of India read with Section 482 of the Code and therefore the petition deserves to be dismissed. The petition is, therefore, dismissed. Rule is discharged.




                                                         (VIPUL M. PANCHOLI, J.) 
Jani


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          R/SCR.A/5087/2014                                               JUDGMENT

After the order is pronounced, learned advocate for the petitioners requested that this order be stayed for a period of 6 weeks so that the petitioners can approach before the Higher Forum. Learned advocate for respondent No.2 has strongly objected to said request. However, in the interest of justice, time of 6 weeks is granted to the petitioners to approach before the Higher Forum. Till then the implementation, execution and operation of this order is stayed.

(VIPUL M. PANCHOLI, J.) Jani Page 14 of 14

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