Gujarat High Court
Hiriben Khimabhai Boricha & 3 vs State Of Gujarat & on 2 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/16493/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16493 of 2015
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HIRIBEN KHIMABHAI BORICHA & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HARDIK H DAVE, ADVOCATE for the Applicant(s) No. 1 - 4
MR PRATIK Y JASANI, ADVOCATE for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/03/2017
ORAL ORDER
1 Rule returnable forthwith. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No.1 State of Gujarat and Mr. Jasani, the learned counsel waives service of notice of rule for and on behalf of the respondent No.2 original first informant.
2 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report bearing C.R. No.I199 of 2015 registered with the Gandhigram Police Station, District: Rajkot for the offence punishable under Sections 465, 467, 468, 471, 120B read with 34 of the Indian Penal Code.
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3 The case of the first informant may be summarised as under:
3.1 The land in dispute was originally owned by one Shri Vidhyasagar
Telaram Gupta, a resident of Mumbai. The land is situated at the village:
Munjka, District: Rajkot. Shri Gupta executed an agreement to sale with respect to the said parcel of land in the year 1988 in favour of one Khimabhai Boricha. The applicants Nos.1, 2 and 3 before me are the children of Shri Khimabhai. It appears that nothing materialised thereafter. Some time later, in the year 2005, Shri Gupta transferred the land by way of a registered sale deed in favour of one Bandishkumar Adesara. The said land was transferred on 17th August 2000. Shri Adesara, in turn, executed a sale deed in favour of the respondent No.2 herein on 17th November 2007. In the year 2015, the applicants Nos.1, 2 and 3 executed a power of attorney in favour of the applicant No.4 with respect to the land in question. The applicant No.4, in his capacity, as the power of attorney, issued a 'Public Notice' dated 29 th April 2015 asserting right over the land on the basis of the agreement to sale, which was executed by Shri Gupta in favour of Shri Khimabhai in the year 1988.
3.2 According to the respondent No.2 original first informant, the issue of such 'Public Notice', after a period of twenty seven years from the date of the execution of the agreement to sale, which was later on cancelled, amounts to forgery and mischief. In such circumstances, the F.I.R. was lodged at the concerned police station.
4 The applicants are before me praying for quashing of the F.I.R.
5 Mr. Dave, the learned counsel appearing for the applicants submitted that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute the offence of forgery or mischief are spelt out. He submitted that mere issue of a Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Mar 03 00:23:27 IST 2017 R/CR.MA/16493/2015 ORDER 'Public Notice' asserting some right on the basis of an agreement to sale, which is, as on date, a subjectmatter of consideration before the Civil Court, will not constitute any offence. It is pointed out that the applicants have filed a Regular Civil Suit No.64 of 2015 in the Court of the learned Principal Civil Judge, Rajkot for specific performance of contract. I am told that the respondent No.2 claims to be the owner of the land in question has filed an application seeking impleadment as defendant in the said suit.
6 Mr. Dave, in such circumstances, prays that there being merit in this application, the same be allowed and the F.I.R. be quashed.
7 On the other hand, this application has been vehemently opposed by Mr. Jasani, the learned counsel appearing for the respondent No.2 - original first informant. He submits that the plain reading of the F.I.R., prima facie, discloses commission of a cognizable offence. He submits that this Court may not embark upon an inquiry whether the allegations are true or false or reliable or not. According to him, a prima facie, case is made out and the police should be permitted to complete the investigation in accordance with law. Mr. Jasani laid much stress on Section 425 of the Indian Penal Code. According to him, the issue of a 'Public Notice' based on an agreement to sale said to have been cancelled twenty seven years back is nothing, but an attempt to pollute the title of his client. To put it in other words, according to him, such an act on the part of the applicants is an attempt to put his valid title in cloud.
8 Ms. Thakore, the learned Additional Public Prosecutor appearing for the State has also opposed this application.
9 Having heard the learned counsel appearing for the parties and
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having considered the materials on record, the only question that falls for my consideration is whether the F.I.R. should be quashed.
10 I take notice of the fact that in the First Information Report, Section 425 has not been invoked. The only sections, which have been invoked, are of forgery. Mere issue of a 'Public Notice', even if with the mala fide intention, will not constitute the offence of forgery. The document in question i.e. the 'Public Notice' cannot be termed as the false document within the meaning of Section 464 of the Indian Penal Code. Thus, I have no hesitation in coming to the conclusion that no forgery could be said to have been committed.
11 The next question that falls for my consideration is whether this act of the applicants complaint could be termed as a mischief within the meaning of Section 425 of the Indian Penal Code. Section 425 of the Indian Penal Code reads as under:
"425. Mischief Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."
12 In my view, mere filing of a civil suit based on an agreement to sale as well as issue of a 'Public Notice' on the basis of an agreement to Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri Mar 03 00:23:27 IST 2017 R/CR.MA/16493/2015 ORDER sale by itself will not amount to mischief within the meaning of Section 425 of the Indian Penal Code.
13 Mr. Jasani, the learned counsel has an apprehension that this is the first step in the process to grab the land or to put the title over the land in question in a cloud. If there is any apprehension of such threat, it is always open for the respondent No.2 to take an appropriate action before the appropriate forum in accordance with law.
14 I am of the view that the investigation of the F.I.R. in question at the end of the police will be nothing, but an empty formality.
15 In the result, this application is allowed. The First Information Report bearing bearing C.R. No.I199 of 2015 registered with the Gandhigram Police Station, District: Rajkot is hereby quashed. Rule is made absolute. Direct service is permitted.
16 The civil suit, which has been filed by the applicants herein, shall proceed further in accordance with law. The Civil Judge concerned shall dispose of the civil suit on its own merits without being influenced, in any manner, by any of the observations made by this Court in this order.
(J.B.PARDIWALA, J.) chandresh Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Mar 03 00:23:27 IST 2017