Gujarat High Court
Ratilal Shamjibhai Patel vs State Of Gujarat on 23 March, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5309 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
============================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or
any order made thereunder ?
============================================
RATILAL SHAMJIBHAI PATEL
Versus
STATE OF GUJARAT
============================================
Appearance:
MR SHALIN MEHTA SENIOR ADVOCATE WITH MR MAULIK R
SHAH(6385) for the Applicant(s) No. 1,2,3
MR. MAULIK M SONI(7249) for the Respondent(s) No. 3
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
============================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 23/03/2022
ORAL JUDGMENT
1. Heard learned Senior Advocate Ms. Shalin Mehta for learned Advocate Mr. Maulik Shah on behalf of the petitioner, learned Additional Public Prosecutor Ms. Maithili D. Mehtra on behalf of respondent no.1- Page 1 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022
R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 State and learned Advocate Mr. Maulik Soni on behalf of respondent no.2- original complainant.
2. By way of this petition the petitioners pray for quashing of FIR bearing C.R. No. 11214020200213 of 2020 registered with the Kamrej Police Station, District; Surat Rural on 22.02.2020 for offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code.
3. It would be relevant to mention that the date of the offence as mentioned in the FIR is on 29.03.2014. The FIR inter alia alleges that the complainant and the accused no. 1 to 3 therein, the petitioners being accused no. 4 to 6, were related to each other, the mother of the complainant and the mother of original accused no. 1 to 3 being sisters. It is alleged that mother of accused no. 1 to 3 was the elder sister namely Jamnaben and mother of complainant was the younger sister namely Kamuben. It is alleged that maternal grandmother of the complainant had expired on 18.04.1953 and whereas vide revenue entry no. 166, names of Jamnaben and Kamuben were entered in the revenue record as owners of the land in the year 1955.
3.1 It is alleged that in the year 2007, the complainant came to know about the fact of the land in question, converted exclusively in the name of the mother of the accused no. 1 to 3 and whereas there are certain notices and public notice also relied upon. It would be relevant to mention here that the main grievance in the FIR appears to be with regard to a transaction of the year 1990 whereby mother of the complainant appears to have relinquished her right over the land in question in favour of mother of accused no. 1 to 3. Insofar as the petitioners are concerned, it is alleged that Page 2 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 the petitioners being accused no. 4 to 6 had purchased the land on 04.06.2013 without verifying the title and without issuing any public notice. It is also mentioned that in the year 2014, mother of the complainant had given an application to the IG, Surat and whereas in the inquiry upon such application the petitioners are stated to have submitted before the authorities that they had paid the consideration between the year 2006 to 2008. It would be further relevant at this stage that in the FIR there is no allegation against the present petitioners of being involved in the transaction of the year 1990, which appears to be the main grievance of the original complainant.
4. Learned Senior Advocate Mr. Shalin Mehta with learned Advocate Mr. Maulik Shah on behalf of the petitioners would submit that while the name of Jamnaben and Kamuben were mutated in the revenue record in the year 1955, vide a deed dated 15.08.1962, the mother of the complainant had relinquished her rights over the land in question in favour of the mother of the accused no. 1 to 3. Learned Senior Advocate would submit that even thereafter, vide a deed titled as sale-deed/partition deed dated 26.11.1990, mother of the complainant had relinquished her right over the land in question in favour of mother of accused no. 1 to 3. Learned Senior Advocate would submit that entry with regard to the said relinquishment deed being entry no. 4016 had been mutated in the revenue record in the year 1991 more particularly on 27.12.1991 and whereas according to learned Senior Advocate Mr. Mehta more particularly, relying upon a notice under Section 135 (D) of the Bombay Land Revenue Code which is annexed with the petition, the said notice under Section 135(D) had also been served upon the mother of the complainant at the relevant point of time in the year 1991. Learned Senior Advocate would submit that as far as the petitioners are concerned, they had purchased the land by way of a registered sale-deed Page 3 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 in the year 2013. Learned Senior Advocate would submit that the petitioners had verified the ownership details of the land more particularly mother of the accused no. 1 to 3, having bequeathed the land in question to the accused no. 1 to 3 by way of will dated 28.04.2000 and whereas mother of accused no. 1 to 3 had expired in on 13.05.2000. Learned Senior Advocate would submit that an heirship entry dated 03.07.2000, incorporating the names of accused no. 1 to 3 had been mutated in the revenue record being entry no. 5663 and wheres even at that stage, notice under Section 135(D) had been served and acknowledged by mother of the complainant. Learned Senior Advocate would submit that as far as the petitioners are concerned, the mother of the complainant for the first time had initiated proceedings being Special Civil Suit No. 306 of 2007 inter alia for a declaration that she was entitled to half the share over the land in question. Learned Senior Advocate would also draw the attention of this Court to an order dated 08.10.2009 below application under Exh 22 preferred by the original plaintiffs where they had requested that the documents in question may be sent for hand writing verification, the order referred to, rejecting such application. Learned Senior Advocate would submit that the said order , had been challenged by the original plaintiff by preferring a writ petition before this Court being Special Civil Application No. 13370 of 2009 and whereas vide order dated 07.04.2017 the petitioners before this Court had unconditionally withdrawn the said writ petition.
5. Learned Senior Advocate would submit that while the petitioners had purchased the land in the year 2013, they had applied for conversion of the land to non agricultural use which was granted by the Collector, Surat vide order dated 01.10.2015. Learned Senior Advocate would submit that the said order had been challenged by the respondents before the revisional authority and whereas vide an order dated 02.04.2018, the revisional Page 4 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 authority had confirmed the NA order and had rejected the challenge thereto. Learned Senior Advocate would submit that parallelly even entry no. 4016 i.e the entry mutating the sale-deed/partition deed, whereby mother of the complainant had relinquished her right over the said land in question in favour of mother of the accused no. 1 to 3, had also been challenged by the complainant and his family and whereas they had lost before the Deputy Collector as well as the Collector who vide orders dated 15.06.2018 and 29.01.2020 respectively had rejected the said challenge.
6. Learned Senior Advocate would submit that after all the proceedings i.e after preferring a Civil Suit in the year 2007, after challenging the N.A. order in favour of the petitioners in the year 2005 and challenging the entry no. 4016 in the year 2018 and having failed in all the challenges, the impugned FIR came to be registered on 22.02.2020.
7. Learned Senior Advocate would submit at this stage that even insofar as the Civil Suit preferred by the petitioners, the learned Civil Court had vide an order dated 28.01.2022 i.e subsequent to filing of the impugned FIR, had rejected the application of the plaintiffs therein for grant of interim injunction.
8. Learned Senior Advocate taking the Court through the impugned FIR would emphasize that the allegations are mainly with regard to the transaction whereby the mother of the complainant is stated to have relinquished her rights over the land in favour of mother of accused no. 1 to 3. Learned Senior Advocate would submit that insofar as petitioners are concerned, the only allegation is that the petitioners did not verify the title of the land in question not did they issue any public advertisement before purchasing the land in question. Learned Senior Advocate would submit that none of the allegations, would be an offence as punishable under the Page 5 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 Sections mentioned in the FIR. Learned Senior Advocate would submit that apart from the fact that the FIR did not make any allegation against the petitioners either of cheating or of committing criminal breach of trust or of forgery, the fact of the Civil Court while passing the order dated 28.02.2020 rejecting application for interim injunction in the suit preferred by the late mother of the complainant, may also be considered by this Court. Learned Senior Advocate would emphasize on a finding of the learned Civil Court that the complainant could be stated to be aware about name of mother of the complainant being removed from the revenue record at least form the year 1991 i.e. by way of entry no. 4016 and whereas according to the learned Civil Court, even the suit preferred in the year 2007 was after a delay of 16 years. Learned Senior Advocate would submit that applying the same yardstick, the impugned FIR was delayed by approximately 30 years.
9. Learned Senior Advocate would rely upon decision of the Hon'ble Apex Court more particularly decision rendered in Criminal Appeal No. 252 of 2022 in case of Babu Venkatesh and others vs. State of Karnataka and another which judgement was rendered by the Hon'ble Apex Court on 18.02.2022. Learned Senior Advocate would submit that in the said judgement, the Hon'ble Apex Court had quashed the FIR, inter alia persuaded by the fact that with regard to the very selfsame transaction, civil suit had been preferred by the complainant prior to filing of the FIR. Learned Senior Advocate would further rely upon decision of the Hon'ble Apex Court in case of Smt. Rekha Jain and another vs. State of Uttar Pradesh reported in 2022 (2) SCALE 794 and the judgement of the Hon'ble Apex Court in case of Miteshkumar J. Shah vs. State of Karnataka reported in 2021 (12) SCALE 625 in support of his submissions.
10. Learned Senior Advocate would sum up by submitting that since the only allegation against the petitioners was with regard to the transaction of Page 6 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 purchasing the land and not with regard to the original transaction whereby the name of the mother of the complainant is removed from the revenue records and on the ground that the FIR is preferred after 30 years of the transaction, more particularly, the transaction being known to the complainant and his family members including his late mother and more particularly the FIR having been preferred after the complainant and his family members having preferred and not got a desired result in civil and revenue proceedings, is required to be quashed by this Court.
11. Learned Advocate would Mr. Maulik Soni on behalf of the original complainant has vehemently contested the present petition. Learned Advocate would submit that while prima facie there may not be any allegation of the petitioners having committed any offence punishable under Sections 406 or 420 of the Indian Penal Code but at the same time, the fact of the petitioners having purchased the land after civil suit being had been preferred by late mother of the complainant, could not be a fact which may be overlooked by this Court. Learned Advocate would submit that the said fact coupled with the fact of the petitioners not having issued any public notice, would lead to an adverse inference that the petitioners, were involved or were knowing about the lack of title of the accused no. 1 to 3 and therefore the impugned FIR may not be interfered with by this Court.
12. Learned Advocate would further submit that while the FIR has been preferred in the month of February 2020, upon this Court granting an interim relief in favour of the petitioners in the month of October 2020 i.e. approximately after 8 months, the investigation has not proceeded further and whereas the Investigating Officer may be directed to produce whatever investigation they have concluded till date to show whether any role could be attributed to the present petitioners. Learned Advocate therefore would Page 7 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 submit that this Court may not interfere with the present petition at this stage and whereas the Investigating Officer may be permitted to investigate into the FIR.
13. Learned APP Ms. M.D. Mehta would submit that while the FIR alleges very serious offences against the original accused no. 1 to 3, a perusal of the FIR insofar as the allegation against accused no. 4 to 6 i..e the present petitioners, would only reveal that the petitioners did not issue a public advertisement. Learned APP would submit that an FIR may not lie against the present petitioners for not having issued a public advertisement before purchase of the land in question.
14. Heard learned Advocates for the parties who had not submitted anything further.
15. The only question which arises for consideration of this Court is whether in view of the allegations or rather the lack of allegations in the FIR, should the FIR be quashed qua the petitioners herein.
16. At the outset in this regard it would be required to be mentioned, that the allegations against the petitioners in the FIR are not with regard to the transaction whereby the name of mother of the complainant has been removed from the revenue records. The allegations being that the petitioners had purchased the land on 04.06.2013, without having any public notice issued and without checking the title of the land in question. Undoubtedly as stated by learned Advocate Mr. Soni while at the relevant point of time when the petitioners had purchased the land in question the civil suit was already pending but this Court is inclined to consider the submission of learned Senior Advocate Mr. Mehta that even while the civil Page 8 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 suit was pending, there was no stay in favour of the plaintiff therein. It would also be pertinent to mention here that even if the petitioners had purchased the land pending the civil suit, that by itself would not be an offence, for which an FIR could have been lodged against the petitioners. The FIR inter alia alleges commission of offences of criminal breach of trust, cheating, forgery and also being involved in criminal conspiracy.
17. On a plain reading of the FIR, more particularly considering the allegations levelled in the FIR, none of the allegations, are in any way corelatable to the offences alleged. The allegation of the complainant being that name of his mother, had been removed from the revenue records by using fraudulent documents, is a transaction which had happened in the year 1990. The petitioners are coming into picture, in the year 2013 and whereas the FIR, even obliquely, not mentioning, that the petitioners were in any way concerned with the transaction of 1990, in the considered opinion of this Court, permitting the FIR to proceed further against the present petitioners, would not be a permissible exercise.
18. This Court at this stage seeks to rely upon the observations of the Hon'ble Apex Court in case of Smt. Rekha Jain (supra). The Hon'ble Apex Court in the said judgement was concerned with regard to an FIR, where the allegation against the petitioners therein was that they had purchased a property which was alleged to be an attached property. The facts show that the attachment was neither registered nor the attachment was in existence at that relevant point of time. Having regard to the facts, the Hon'ble Apex Court had observed as under at paragraph no. 6:
"6. Having heard the learned counsel appearing on behalf of the respective parties and having perused the allegations in the complaint/F.I.R., it can be seen that the main allegations are against the other co-accused - Arun Kumar Maheshwari and others. The only allegation against the appellants is that they have purchased the property in question, which was attached in the year 1998-1999 against the Page 9 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 amounts due and payable to the depositors, who had deposited in Kuber Mutual Benefits Ltd. between 1998-1999. It is to be noted that the property has been purchased by the appellants in the year 2019. Nothing is brought on record that at the time when the property was purchased by the appellants, the attachment was continued and/or any attachment was registered. There are no allegations that the appellants are related to the other co-accused Arun Kumar Maheshwari and others. Even from the averments and the allegations in the F.I.R., it cannot be said that there is any prima facie case made out against the appellants for the offences under Sections 406, 420, 467, 468, 471 and 120-B IPC. The main allegations are against other co-accused. Therefore, to continue the criminal proceedings against the appellants would be an abuse of process of law and the Court and unnecessary harassment to the appellants, who seem to be the purchasers of the property on payment of sale consideration. In the above facts and circumstances of the case, the High Court ought to have exercised its powers and discretion under Section 482 Cr.P.C. and ought to have quashed the criminal proceedings against the appellants."
19. It would be also appropriate to refer to decision of the Hon'ble Apex Court in case of Babu Venkatesh and others vs. State of Karnataka and another ( Criminal Appeal No. 252 of 2022). Paragraphs no. 19, 20, 21 and 22 being the relevant paragraphs, are reproduced hereinbelow for benefit:
"19. It could thus be clearly seen that, the said complaint dated 10th September 2019, was filed almost after a period of two years from the date of institution of suits by the appellant Nos. 2 and 3, and almost after a period of one and a half year from the date on which written statement was filed by respondent No. 2
20. It will be relevant to refer to the following observations of this court in the case of State of Haryana and Others v. Bhajan Lal and Others, which read thus:
"102. 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 a 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 Page 10 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
21. It could thus be seen that, though this court has cautioned that, power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, it has specified certain category of cases wherein such power can be exercised for quashing proceedings.
Page 11 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022
22. We find that in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent No. 2 by filing written statement, he has chosen to file complaint under Section 156 (3) of the Cr.P.C. after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing the appellants. We find that, the present case fits in the category of No. 7, as mentioned in the case of State of Haryana v. Bhajan Lal (supra)."
20. A conjoint reading of the facts situation that the law laid down by the Hon'ble Apex Court in decision as referred to hereinabove, it clearly appears that even if the allegations made in the FIR are taken at their face value and accepted in their entirety then also no offence is made out against the petitioners herein. Furthermore it also appears that the allegation even impliedly tried to be levelled against the petitioner are absurd more particularly since the grievance of the complainant is with regard to a transaction that had happened in the year 1990 and whereas the petitioners came into picture somewhere in the year 2013 after they purchased the land. Furthermore it also appears that the FIR is manifestly attended with malafides more particularly with a view to pressurize the present petitioners more particularly the petitioners being subsequent purchasers.
20.1. Having regard to the same in the considered opinion of this Court the present case fits in category of (1), (5) and (7) of the instances set out by the Hon'ble Apex Court in case of State of Haryana and others vs. Bhajan Lal and others (supra).
21. Having regard to the discussion hereinabove more particularly having regard to law laid down by the Hon'ble Apex Court in the considered opinion of this Court, to ensure that the ends of justice are met and to ensure that the abuse of process of law, which has resulted upon institution of the FIR against the present petitioners, are not permitted, to perpetuate any further, interference is required, the impugned FIR cannot stand insofar Page 12 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022 R/CR.MA/5309/2020 JUDGMENT DATED: 23/03/2022 as the present petitioners are concerned. Therefore, the impugned FIR bearing C.R. No. 11214020200213 of 2020 registered with the Kamrej Police Station, District; Surat Rural on 22.02.2020 for offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code and any other proceedings arising thereof stands quashed as regards the present petitioners.
It is further clarified that observations made in this judgement, may be treated as being made for the purpose of the present petition only and whereas the Investigating Officer would be at liberty to investigate the impugned FIR insofar as original accused no. 1 to 3 are concerned.
The present petition stands allowed. Rule is made absolute to above extent.
Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 13 of 13 Downloaded on : Sat Dec 24 13:27:31 IST 2022