Darvesh Solanki vs Smt Asha Solanki D/O Gendalal Solanki on 22 August, 2019

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Madhya Pradesh High Court

Darvesh Solanki vs Smt Asha Solanki D/O Gendalal Solanki on 22 August, 2019

The present petition is being filed challenging the order dated 08.05.2019 passed by the Tahsildar whereby, direction has been issued by the learned Tahsildar to Police authority to take appropriate steps against the petitioner for playing fraud.

It is alleged by learned counsel for the petitioner that petitioner and respondent No. 1 are real brother and sister. An application has been filed by one Asha Solanki under Section 250 of M.P.L.R.C before the Lok Seva Kendra for restoration of possession for agricultural land bearing Survey No. 288/4/4 area 0.005 hectare situated at Village, Behlot, Vidisha.

The report was called from the Patwari by the learned Tahsildar to the effect that land in question belongs to one Gendalal and the present petitioner is in possession of the property while land is recorded in the name of Asha Solanki in the revenue record. It is further alleged that Asha Solanki is not the owner of the property by showing fake documents, she mutated her name in the revenue record. Against which, the appeal was filed which is pending consideration before the Commissioner. It is alleged that learned Tahsildar while THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 2 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) deciding the application, a direction has issued to take appropriate action against the petitioner to the police Authorities and in pursuance to the aforesaid direction, an FIR has been registered against the present petitioner.

Counsel for the petitioner is alleged that such directions cannot be issued by the Tahsildar and he is aggrieved by the aforesaid direction issued against him. He has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Vishnu Chandru Gaonkar Vs. N.M. Dessai, reported in (2018) 5 SCC 422 and in the case of Iqbal Singh Marwah and Anr. Vs. Meenakshi Marwah and another reported in (2005) 4 SCC 370. It is further argued that in terms of the Section 340 of Cr.P.C preliminary enquiry was required to be conducted prior to issuance of any direction, but learned Tahsildar has not conducted any preliminary enquiry, on the contrary, has issued the directions directly for taking action against the petitioner which is against the law laid down by the Hon'ble Apex Court. He has prayed for quashment of the aforesaid order.

Per contra, learned counsel for State has submitted that there is no requirement for conducting preliminary enquiry in the matter as in term of Section 340 of Cr.P.C, if it is opinion of the Court, the offence is made out, then such direction can be issued. It is further contended that the learned Tahsildar has not given any directions for registration THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 3 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) of FIR against the petitioner, rather he has only directed for taking appropriate action against the petitioner as per law. Thus, there is no illegality being committed by the learned Tahsildar in passing the order. It is further contended that the petitioner has preferred revision before the learned Additional Collector, Vidisha under Section 50 of MPLRC against the order passed by the Tahsildar along with an application for granting interim relief, the same is pending consideration. He has contented that the petitioner may pursue the revision and ask for interim relief pending before the Additional Collector. No such relief as claimed can be granted to the petitioner. The order impugned is well reasoned and justified order and does not call for any interference in the present writ petition. He has prayed for dismissal of the writ petition.

Heard learned counsel for the parties and perused the document appended therein.

The petitioner and respondent No. 1 are real brother and sister and application was submitted by the Asha Solanki before the Lok Seva Kendar to the effect that the petitioner is not owner of the agricultural land bearing Survey No. 288/04/04 area 0.005 hectare situated at Village Behlot, Vidisha and on the said land the petitioner has forcefully taken possession, therefore, her possession be restored in terms of provision under Section 250 of MPLRC.

Learned Tahsildar has called for report from the Patwari stating THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 4 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) that the land belongs to Gendalal and petitioner was found to be in possession of the same. The land recorded in the name of Asha Solanki. The response was filed to the application contending that Asha Solanki is not the owner of the land in question and her name has wrongly been mutated on the basis of fake false partition. It is alleged that the Gendalal has constructed the residential house and shop, the petitioner and his family has resided at residential house and the shop were partitioned with petitioner in pursuance to the will executed by Gendalal. It is further alleged that a civil suit was filed by one Lalit Pachaury for declaration of title with respected to disputed land which was dismissed. A decree of eviction was passed by the Civil Courts on 27.03.2017 and in pursuance to the execution of the said decree the possession of shop was being handed over on 29.03.2017 by the Nazir of the petitioner. The aforesaid application was filed by the Asha Solanki is not maintainable.

Both the sale deeds dated 19.07.1966 was filed along with the photocopy of the sale deed dated 12.01.1982. The learned Tahsildar after considering the reply has arrived at conclusion that though their appears to some manipulation in the map enclosed along with the sale deed, but as the Court has no jurisdiction to examine the validity of the sale deed, but as the documents filed appears to be suspicious, he has issued direction to the Police Authority to take appropriate action against the petitioner and upon such instruction, an FIR at Crime THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 5 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) No.350/2019 for alleged offences under Sections 420, 467, 468 and 470 of IPC has been registered against the petitioner. It is not disputed that the revision was filed by the petitioner against the order passed by the learned Tahsildar and the same is pending consideration.

The provision under Sections 195 and 340 of Cr.p.C are required to be seen:-

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 6 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

340. Procedure in cases mentioned in section 195.

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195. (3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section," Court" has the same meaning as in section 195.

The Hon'ble Supreme Court in the case of Vishnu Chandru Gaaonkar (Supra) has considered the aspect of applicability of THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 7 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) Section 195 of Cr.P.C has held as under:-

"33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view.Section 195(1)(b)

(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evi- dence in a proceeding in any court i.e. during the time when the docu- ment was in custodia legis."

The Hon'ble Supreme Court has considered the scope of the preliminary en-quiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the of- fence should have been committed dur- ing the time when the document was in custodia legis.

The Hon'ble Supreme Court in the case of Iqbal Singh Marwah (Supra) has considered the commission of forgery in respect of a document produced or given in evidence in a proceeding in any court and has held as under "if such offence is committed prior to its production or giving in evidence in court, no complaint by court would be necessary and a private complaint would be maintainable." The Hon'ble Supreme Court has further considered the aspect where the provision under section 195 of Cr.P.C. are penal in nature and has held as under:-

"Section 195(1)(b)(ii) Cr.P.C which we are required to interpret is not a penal provision but is part of a procedural law, namely, Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 8 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court. A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against the State, whatever is the character of the penalty for the offence. The principle that a penal statute should be strictly construed, as projected by the learned counsel for the appellants can, therefore, have no application here."

The aforesaid law laid down by the Hon'ble Supreme Court and bare reading of provision of Sections 195 and 340 of Cr.P.C it is clear that it is upon the Courts to give an opinion that it is expident and interest of justice i.e. an enquiry should be made into any offence related to Clause 1-B of Section 195 of Cr.P.C which appears to have been committed in or relation to proceedings in that Court or as the case may be in respect to the documents given in evidence in a proceedings in that Court. After such preliminary enquiry, if any, as it things fit may direct". In the present case learned Tahsildar merely on the basis of report received from the Patwari has issued direction to the Concerning SHO for taking action against the petitioner. But the fact remains that in pursuance to the aforesaid direction, SHO has registered an FIR against the petitioner.

The petitioner has already challenged the order passed by the Tahsildar before the Appellate Authority which is pending consideration. In such circumstances, as the revision is pending, no relief can be granted to the petitioner as filing of the writ petition amounts to parallel proceedings which is not permissible. The THE HIGH COURT OF MADHYA PRADESH WP-14657-2019 9 (DARVESH SOLANKI Vs SMT ASHA SOLANKI D/O GENDALAL SOLANKI) petitioner is directed to pursue the revision pending before the authority. At this stage, counsel for the petitioner submits that a direction be issued regarding early disposal of the revision before the Authority, till then no coercive action in pursuance to the FIR registered against him.

Considering the prayer made by the learned counsel for the petitioner the authority is directed to expedite the proceedings of the revision and decide the same as expeditiously as possible within the period of three months from the date of receipt of certified copy of the order. The Authority is further directed to decide the application filed by the petitioner seeking interim relief within a period of 15 days from receipt of certified copy of the order.

Petition stands disposed off. No order as to costs.

(VISHAL MISHRA) JUDGE LJ* LOKENDRA JAIN 2019.08.27 10:06:23 +05'30'

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