Gujarat High Court
Hasmukhbhai Lakhmanbhai Bhatia vs State Of Gujarat on 25 April, 2024
NEUTRAL CITATION
R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 15438 of 2018
(FOR QUASHING & SET ASIDE FIR/ORDER)
With
R/CRIMINAL MISC. APPLICATION NO. 16560 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder ?
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HASMUKHBHAI LAKHMANBHAI BHATIA & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1,2
MR DHAWAN JAYSWAL APP for the Respondent(s) No. 1-3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 25/04/2024
COMMON ORAL JUDGMENT
1. As both these applications are arising out of common FIR, both these applications are heard together and are being decided by this common judgment.
2. By way of these applications under Section 482 of the Criminal Procedure Code, 1972, (hereinafter referred to as "CrPC" for short), the applicants Page 1 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined have prayed for quashing and setting aside the impugned FIR being C.R. No.I-58/2018 registered with Babara Police Station, Amreli for the offences under Sections 406, 409, 420, 465, 468, 471 and 120(B) of the Indian Penal Code (hereinafter referred to as "IPC" for short).
3. At this stage, it is required to be noted that the applicant no.2 viz., Hareshbhai Mavjibhai Bhatia of Criminal Misc. Application No.15438/2018 has expired during the pendency of this application and, hence, this application stands abated qua him and is fined to other applicants.
4. The brief facts leading to filing of the present applications are as under, 4.1 That, the land land bearing Survey No.717 situated in the sim of Village : Babra, admeasuring Acre 4-16 gunthas was granted to one Palabhai Bhurabhai on "sathani" basis and land admesuring Acre 5-20 Gunthas was granted to one Bhanabhai Palabhai in the year 1962-63 and in pursuance thereto, Entry Nos.888 and 953 came to be mutated in the revenue records. Thereafter on 01.11.1986 vide Entry No.2449, name of Kanjibhai son of Bhanbhai came to be mutated in the revenue record and the said entry was certified on 02.12.1986. 4.2 Thereafter on the strength of the application, the aforesaid land came to be converted into old tenure land from new tenure as per the order dated 29.10.1997 Page 2 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined passed by Mamlatdar, Babra and Entry No.3638 came to be mutated in the revenue record to that effect.
4.3 After conversion of the land from new tenure to old tenure, the applicants had purchased the land. Out of total land admeasuring Acre 5-20 gunthas of Survey No.717 paiki, the said Kanjibhai Bhanabhai executed registered sale deed in favour of Bhagvanbhai Mohanbhai Bhatiya for the land admeasuring Acre 3-0 gunthas by way of registered sale deed dated 29.10.1997, for which Entry No.3640 came to be mutated in the revenue record, whereas remaining parcel of land i.e. 2 Acres and 20 gunthas was sold to one Hareshbhai Mavjibhai Bhatiya by way of registered sale deed dated 20.10.1997, for which, Entry No.3639 came to be mutated in the revenue record. Aforesaid entries were also certified by the revenue authority.
4.4 Thereafter the said Palabhai Bhurabhai passed away and, hence, Varsai Entry No.3339 came to be mutated in the revenue record. Thereafter with respect to the other parcel of land admeasuring Acre 4-16 gunthas of Palabhai Bhurabhai, his legal heirs have executed a registered sale deed of the land bearing Survey No.717 admeasuring 2-0 gunthas in favour of one Himmatbhai Muljibhai Dholakiya and Lakhmanbhai Mohanbhai Bhatiya by Page 3 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined registered sale deed of even date i.e. 24.11.1998, for which, Entry No.3641 came to be mutated in the revenue record, whereas remaining parcel of land admeasuring 2 Acres and 16 gunthas was sold to Smt.Shardaben Himmatbhai Dholakiya and Hasmukhbhai Lakhmanbhai Bhatiya by way of registered sale deed dated 24.11.1998, for which, Entry No.3642 came to be mutated. Aforesaid entries were also certified by the revenue authority. 4.5 For the reasons best known, after a period of great delay, aforesaid entries No.3639, 3640, 3641 and 3642 were taken in suo motu revision by District Collector by issuing show cause notice on the ground that there is manipulation in measurementsheet and wrong information of metes and bounds has been given and on receipt of the notice issued by the District Collector, the applicants appeared before the authority and contended that the applicants are bona fide purchasers of the land in question on payment of entire sale consideration. However without properly considering the facts of the case, District Collector, by order dated 05.06.2007, cancelled aforesaid entries.
4.6 Against the aforesaid order, the applicants filed revision before learned Special Secretary (Revenue Department) bearing No.MVV/HKP/ AMA/8/2007, which was partly Page 4 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined allowed, whereby order of the Collector came to be set aside and the matter was remanded to the Deputy Collector, Lathi for deciding the issue afresh.
4.7 Pursuant to the aforesaid order of remand, Deputy Collector once again took up the matter, however without properly considering the facts of the case and the evidence led by the applicants, the Deputy Collector, Lathi, by an order dated 31.03.2015, cancelled aforesaid four entries.
4.8 Against the said order of the Deputy Collector cancelling the entries, the applicants approached learned Collector by way of filing Revision Case No.101 of 2015, however, the learned Collector once again rejected the said revision by order dated 30.07.2016 and land was ordered to be vested in the State Government for breach of condition.
4.9 Against the aforesaid orders of the Deputy Collector as well as the Collector, the applicants preferred Revision Application before learned SSRD being Revision Application No.MVV/HKP/AML/54/2016, who has ultimately rejected said revision by an order dated 31.03.2018 and confirmed the orders of the revenue authorities.
4.10 Therefore being aggrieved by the aforesaid orders, the applicants approached this Court Page 5 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined by filing writ petition being Special Civil Application No.7040/2018, wherein while issuing notice by the Coordinate Bench of this Court, an order of status quo to be maintained by the parties with regard to the subject matter has been passed. At this stage, it is pertinent to note that the said writ petition was heard by the Coordinate Bench of this Court and allowed the said writ petition by an order dated 08.06.2022, against which, Letters Patent Appeal was preferred by the State of Gujarat, which has been dismissed by the Division Bench of this Court by an order dated 06.12.2023. 4.11 However to the utter shock and surprise of the applicants, after a period of more than 18 years, the respondent no.2 herein has lodged impugned FIR alleging inter alia that in connivance with each other, the accused have forged and fabricated the sale deed by mentioning incorrect metes and bounds and used it as a genuine and thereby committed cheating with the Government.
4.12 Therefore as soon as the applicants came to know about the registration of the impugned FIR, being a bonafide purchasers of the land, they have approached this Court by filing aforesaid quashing petitions, wherein while issuing notice, the applicants have been protected by passing an order of no coercive Page 6 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined steps, however, the investigation was directed to be continued.
5. Heard learned advocate, Mr. Hriday Buch for the applicants and learned advocate, Mr. Dhawan Jayswal for the respondents.
6. Learned advocate, Mr. Buch appearing for the applicants submitted that there is gross delay in registration of the FIR because the so-called incident has taken place on 29.10.1987, for which, impugned FIR came to be lodged on 11.08.2018 and thus, there is no explanation offered by the respondent no.2 for such huge delay, which clearly goes on to show that the applicants are falsely implicated in the aforesaid commission of crime. Learned advocate submitted that in fact, the applicants are the bonafide purchaser of the land on payment of entire sale consideration by executing registered sale deed and on the strength of the said sale deed, they have become the absolute owner and occupant of the land in question. Learned advocate submitted that as can be seen from the facts narrated hereinabove, there are chequered history in the present case because after the execution of the sale deed and mutation of entries in the revenue record on the strength of the registered sale deed, suo motu revenue proceedings have been initiated under Section 108(6) of the Gujarat Land Revenue Code (hereinafter referred to as "Revenue Code" for short), which reached upto this Court in the form Page 7 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined of writ petition being Special Civil Application No.7040/2018 challenging the orders passed by the revenue authorities. Learned advocate submitted that the basis for filing of the impugned FIR is that at the time of preparing the sale deeds, details of metes and bounds have been wrongly mentioned with a sole intent to cheat the Government. Learned advocate, however, submitted that there was no malafide intention on the part of the applicants in mentioning metes and bounds but through oversight, it has been wrongly mentioned but that does not mean that the intention of the applicants are not good and cheat the Government. Learned advocate further submitted that initiation of the proceedings under the Revenue Code are not tenable in eye of law in view of delay in initiation of proceedings and only on the ground of conjecture and surmises, the impugned FIR has been lodged. Learned advocate submits that at the time of registration of the impugned FIR, the respondent no.2 has not properly considered the revenue records including the sale deed executed between the parties and having jumped to a conclusion that there is change in the location of land, thereafter, ordered to refer the case to Special Investigating Team (SIT) without giving an opportunity of hearing to the applicants and, thereafter, issued directions for registration of the FIR and ultimately, the Collector has lodged impugned FIR. Learned Page 8 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined advocate, however, submitted that plan reading of the contents of the FIR clearly goes on to show that the applicants have not been part of the commission of crime and they are not at all involved in creating and/or making any forged documents and on the contrary, the applicants are the bonafide purchaser of the property and they have paid entire sale consideration and executed registered sale deed in their favour in the year 1987 and on the strength of the registered sale deed, revenue entry was also mutated and subsequently certified by the concerned revenue officer and after lapse of more than 18 years, the impugned FIR came to be lodged without assigning any justifiable reasons for registration of FIR after a period of long delay. Learned advocate submitted that in fact, civil dispute has been converted into criminal one, that too, after a period of more than 18 years.
7. Learned advocate submitted that as stated above, revenue proceedings were instituted before the revenue authorities and being aggrieved by the orders passed by the revenue authorities, the applicants have approached this Court by filing writ petition being Special Civil Application No.7040/2018, wherein after hearing both the parties, the Coordinate Bench of this Court, by an order dated 09.06.2022, allowed the said writ petition and quashed and set aside the orders passed by the revenue authorities, copy of said Page 9 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined order is produced on record by way of filing additional affidavit. Learned advocate, therefore, submitted that now in view of the order passed by the Coordinate Bench of this Court in the aforesaid writ petition, the grounds on which the impugned FIR has been filed, do not survive and sustain for a moment and, hence, the impugned FIR is required be quashed and set aside as continuation of proceedings would nothing but gorss abuse of process of law. Learned advocate submitted that while passing an order in the writ petition, the Coordinate Bench of this Court has considered all aspects including the delay in initiation of proceedings. Learned advocate submitted that in fact, the said order of the Coordinate Bench has been challenged by the State of Gujarat by filing F/Letters Patent Appeal No.31424/2023 before the Division Bench of this Court and as there was delay, an application for condonation of delay being Civil Application No.2004/2023 was also filed and the Division Bench of this Court heard the said Letters Patent Appeal as well as Civil Application on merits and, thereafter by an order dated 06.12.2023, dismissed the aforesaid LPA on the ground of delay, copy of said order has also been produced on record by way of additional affidavit. Learned advocate submitted that if the Hon'ble Court would make a cursorily glance upon the observations made by the Division Bench of this Court, it is clearly Page 10 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined mentioned that there was no fraud committed by the applicants. It is, therefore, submitted that in view of the above facts, the impugned FIR is nothing but a great abuse and misuse of the power and, hence, the same may be quashed and set aside.
8. Learned advocate submitted that the charge of criminal breach of trust is leveled against the applicants, however for the purpose of establishing those charge, the prosecution has to show that the property was entrusted to the applicant by the Government authority and/or putting the applicants with the dominion over the property, however, neither said property has been dishonestly misappropriated nor converted to the personal use by the applicants, therefore, there is no question of applicability of Section 406 of the IPC is concerned. Learned advocate submitted that so far as invocation of provision of Section 420 of the IPC is concerned, bare perusal of the contents of the FIR clearly goes on to show that the applicants have not deceived the complainant and/or dishonestly induced into delivering the property to the applicants nor have committed any cheating and there is no question of inducing the complainant for deceiving and delivering any property to the applicants, therefore, basic ingredients of Section 420 of the IPC are missing in the present case. Learned advocate submitted that so far as other allegations with regard to forgery of valuable security, will etc. are Page 11 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined concerned, the documents were forged with sole intent to cheat the Government and using the forged documents as genuine, for the purpose of providing those charges leveled against applicants, the prosecution has to first prove that the documents upon which reliance has been placed by the applicants at the time of submission of papers before the competent authority, were forged and fabricated one. Learned advocate, therefore, submitted that if bare reading the allegations leveled against the present applicant, by no stretch of imagination, it can be said that the essential ingredients of forgery are attracted.
9. Learned advocate submitted that at the time of registration of the impugned FIR, the prosecution has heavily put reliance upon suo motu proceedings initiated by the District Collector, Amreli on the aspect that at the time of execution of the registered sale deed, particulars of metes and bounds are wrongly mentioned and on the strength of the prima facie opinion prepared by the District Collector, Amreli, the impugned FIR has been lodged. Learned advocate submitted that however as stated above, the said revenue proceedings have reached upto this Court and the Coordinate Bench of this Court in a writ petition filed by the applicants has quashed and set aside the orders passed by the revenue authorities cancelling the entries mutated in favour of the Page 12 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined applicants and the said order has been confirmed by the Division Bench of this Court in the LPA filed by the State of Gujarat. Learned advocate at this stage submitted that the said LPA has been dismissed by the Division Bench of this Court on the ground of delay as well as on merits by making specific observations that the revenue authorities are miserably failed to satisfy the conscious of the court so far as the merits of the case as well as delay application and, hence, the said appeal as well as civil application both have been dismissed. Learned advocate further submitted that in fact, the Coordinate Bench of this Court while allowing the writ petition filed by the applicants has opined in a very categorical terms that as per the case of the Government, the distance between two properties (land) is more than one kilometer situated within the territory of same village, however as per the case of the Government, three side boundary are tallied with each other and, hence, the said ground raised by the Government cannot be found tenable in eye of law because three side boundaries of particular land cannot be tallied for longer distance of more than one kilometer area at a stretch. Learned advocate submitted that as per the information of the applicants, the order passed by the Division Bench of this Court in LPA and connected matter has not been challenged before the higher forum, therefore, the base of allegations and averments Page 13 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined mentioned in the FIR itself is at all not in existence at this stage, therefore, the proceedings instituted against the present applicants are required to be quashed and set aside as continuation of the proceedings would tantamount to abuse of the process of law and ultimately would become futile exercise.
10. Learned advocate, therefore, submitted that considering the principle of law laid down by the Hon'ble Apex Court in case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the impugned FIR is required to be quashed and set aside. It is, therefore, urged that the present application may be allowed.
11. Per contra, learned APP Mr. Jayswal has opposed the present applications with a vehemence and submitted that prima facie the involvement of the present applicants are found out since inspection of commission of crime from the investigation papers collected so far. Learned APP submitted that at the time of issuance of notice and protecting the applicants, specific order was passed by the Court to continue with the investigation and in pursuance thereto, the concerned IO has carried out investigation, wherein sufficient incriminating material is found out against the applicant, however, the chargesheet has not been filed till date due to Page 14 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined pendency of the present applications. Learned APP, however, submitted that from the documents collected so far, it is found out that the applicants are actively involved in the commission of crime and, hence, no inherent power can be exercised in favour of the applicants. Learned APP submitted that with a sole intent to grab the valuable Government land, wrong information with regard to metes and bounds have been mentioned in the sale deed and when the said fact has come to the notice of the revenue authority, suo motu proceedings have been initiated, which reached upto this Court. Learned advocate submitted that it is true that the writ petition filed by the applicants against the cancellation of those entries, is allowed by the Coordinate Bench of this Court, however that does not mean that the applicants have not committed any offence as alleged and they were absolved from the criminal proceedings. Learned APP submitted that before registration of impugned FIR against the applicants, detailed inquiry was carried out by the Senior Revenue Officer and on the strength of the report submitted by the officer concerned, the Collector, Amrelie found substance in the report and, hence, ordered to register FIR against the accused persons. Not only that, thereafter after registration of FIR, the investigation was done by the Police Officer, wherein incriminating material is found out which shows the involvement of the Page 15 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined applicants in the commission of crime and this stage of proceedings is a very premature stage and, hence, the Hon'ble Court need not have to throttle the investigation by exercising inherent jurisdiction at this stage. Learned APP submitted that there cannot be said to be delay in registration of impugned FIR against the applicants, however when the facts came to the notice of the revenue authority, immediately suo motu proceedings were initiated, which reached upto this Court and, hence, the said contention cannot be considered at this stage. It is, therefore, urged that considering the above factual aspects and the involvement of the applicants in the commission of crime, no inherent power can be exercised in favour of the applicants and the present applications may be rejected and the concerned IO may be permitted to file chargesheet before the court concerned so that trial may proceed further.
12. At this stage, before dealing with the contentions raised by learned advocates appearing for the parties, I would like to refer to the decisions of the Hon'ble Apex Court, which are relevant for deciding the the present applications. 12.1 The Hon'ble Apex Court in a judgment in case of Bhajan Lal (supra) has issued certain guidelines, which are required to be taken into consideration at the time of deciding quashing petition. The relevant para reads as under:
Page 16 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined "In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any 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 formula 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 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
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NEUTRAL CITATION
R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024
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F.I.R. 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 non-cognizable 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 Page 18 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, (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."
12.2 The Hon'ble Apex Court in case of R.P. Kapur (supra) has summarised some categories of cases where inherent power can and should be exercised to quash the proceedings, which are as under,
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 12.3 In the case of Dinesh Dutt Joshi Vs. State of Rajasthan, reported in (2001) 8 SCC 570, while Page 19 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined dealing with the inherent powers of the High Court, the Hon'ble Supreme Court has observed thus;
"The principle embodied in Section is based upon the maxim: Quando lex aliquid alicuiconcedit, concederevidetur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedural law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases. The principle embodied in Section is based upon the maxim:
Quando lex aliquid alicuiconcedit, concedere videtur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found Page 20 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined in procedureal law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases."
12.4 At this juncture, I would also like to rely upon and refer to the observations made by the Hon'ble Apex Court in case of G. Sagar Vs. State of U.P., reported in (2000) 2 SCC 636 with profit the observation of the Hon'ble Apex Court is as follows;
"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to Page 21 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined secure the ends of justice."
12.5 The Supreme Court in the case of Rishipal Singh Vs. State of U.P., & Anr., reported in (2014) 7 SCC 215, has very succinctly discussed the position of law so far as quashing of the criminal proceedings are concerned. The Apex Court observed thus;
"10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its Page 22 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C.
11. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd and Others 2000 (3) SCC 269, has discussed at length about the scope and ambit while exercising power under Section 482 Cr.P.C. and how cautious and careful the approach of the Courts should be. We deem it apt to extract the relevant portion from that judgement, which reads:
"Exercise of jurisdiction under inherent power as envisaged in Section 482 of the Code to have the complaint or the charge sheet quashed is an exception rather than rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution with the lodgement of First Information Report. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of Page 23 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the fact of it does not constitute or disclose any offence alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situations as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount".
12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC
122. This Court in Zandu Pharmaceuticals Page 24 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined Ltd., observed that:
"The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look Page 25 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact."
13. Thus in view of the broad guidelines issued by the Hon'ble Apex Court in the aforesaid decisions, which have been followed by the Hon'ble Supreme Court in subsequent decisions as well as by this Court from time to time, it will be useful to briefly notice the scope and ambit of the inherent powers of the High Court under Section 482 of the IPC. The section itself envisages three circumstances, under which, the inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code;
(ii) to prevent an abuse of the process of court; and (3) to otherwise secure the ends of justice.
14. Nevertheless, it is neither possible nor discernible to lay down any inflexible rule, which govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said provision is very wide, but is not unlimited. Therefore, it has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exits. It needs little emphasis that the inherent jurisdiction does not confer any arbitrary power on the High Page 26 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce any justice.
15. Now considering the above ratio enunciated by the Hon'ble Apex Court in the aforesaid decisions, now I would like to consider the facts of the case.
16. In the facts of the present case, as can be seen from the above facts and summarized, it is found out that the dispute pertains to mentioning of wrong information of metes and bounds of a particular land at the time of preparing the sale deed and producing it before the revenue authority and Government land has been sold, which ultimately initiation of suo motu proceedings against the applicants, wherein the entries mutated in favour of the applicants came to be cancelled and, hence, the applicants have approached the revenue authorities and the said proceedings have reached upto this Court by filing writ petition being Special Civil Application No.7040/2018, wherein the applicants succeeded and the State have preferred Letters Patent Appeal, which has been dismissed on the ground of delay as well as on merits. A plan reading of the contents of the impugned FIR, it is found out that the initiation of suo motu proceedings against the applicants is just because of mentioning of wrong particulars of metes and bounds of land alleging that the applicants have committed forgery with malafide intention. However, it is an admitted Page 27 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined position of fact that writ petition filed by the applicants challenging the orders of cancellations of entries has been allowed by the Coordinate Bench of this Court by detailed judgment, against which, Letters Patent Appeal preferred by the State has been dismissed and the said order has not yet challenged by the State before the higher forum and thus, it has attained its finality. On perusal of the observations made by the Coordinate Bench of this Court while passing an order in writ petition, it is found out that there is specific observation made that the Government has failed to produce any record, which suggests that the land in question, which is sold to the applicants, is Government land. In the said judgment, the provision of Section 37(2) of the Revenue Code as well as Rule 108 of the Revenue Code have been considered by the Court. The observations made by the Coordinate Bench in Paragraph No.10 read as under, "10. On perusal of the order of learned Collector at page 88, it appears that while dealing with the sale transactions, he has opined that there is wrong description of boundaries of the land and Government land has been sold. Now, on perusal of the chart, which has been mentioned in the same order, it is found that description of land 2 Acres and 20 gunthas of Survey No.717 as well as 3 gunthas of same Survey number, Page 28 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined which are reflected at page 90 are concerned, description on three sides is same and only on one side i.e. on western side there is some discrepancy in the description of boundary. Thus, when three boundaries of both the lands are same then stand taken by the respondent that both the lands are 1 km. away from each other is not believable. It also reflects from order that, at the relevant time, some measurement was made and map was prepared, which according to the Collector is forged one, but the fact remains that learned Collector was dealing with revenue entries and he was exercising his power under RTS proceedings. Therefore, he could not have passed order on the ground that there is breach of condition and vesting the land in government. Thus, cross-utilization of powers by the Collector itself is also not in consonance with well settled principles of law."
17. I would also like to reproduce certain observations made by the Hon'ble Division Bench in the Letters Patent Appeal filed by the State, which reads as under, "3. On a pointed query made by the Court as to where the fraud is agitated by the State appellants, observations made in the order of the Collector and the statement made in Page 29 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined the counter affidavit filed before the writ Court has been placed before us. However, apart from three lines in the order passed by the Collector and the statement in paragraph '13' of the counter affidavit, to reiterate the statement made in the order of the Collector, Amreli, nothing has been brought before us. Along with the appeal as well, there is nothing on record which would indicate that any proceeding has been conducted by the State appellant in the matter of encroachment of Government land by way of illegal transfer through a Sale Deed. .........................................
4. For the reasoning given by the learned Single Judge in the aforesaid paragraphs and the fact that nothing has been brought before the writ Court or before us to the extent that any substantive proceeding has been initiated by the respondent on the allegations of encroachment of the Government land in the garb of Sale Deed, we do not find any good ground to interfere in the reasoning given by the learned Single Judge. It is also relevant to note that the present appeal is highly belated by 461 days for which no plausible explanation has been furnished before us. We, therefore, dismiss the present appeal both on the ground of delay as well as on Page 30 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined merits. Consequently, the connected Civil Applications for condonation of delay and stay also stand dismissed."
18. Thus from the above observations, it is clear that the Coordinate Bench of this Court has categorically stated that description on three sides is same and only on one side i.e. on western side, there is some discrepancy in the description of boundary and thus when three boundaries of both the lands are same then, stand taken by the respondent that both the lands are 1 km. away from each other is not believable. Thus from this fact itself, it is apparent that there might be some discrepancy occurred while mentioning the boundaries, which can be said to be bonafide and not malafide. Therefore merely because of bonafide mistake on the part of the applicants, who are bonafide purchaser of the land in question, they cannot be prosecuted without there being any fault on their part.
19. At this stage, I would like to put reliance upon the decision of the Hon'ble Apex Court in the case of Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr., reported in 2010 (1) GLH 184, wherein the Hon'ble Supreme Court has exhaustively explained as to what will constitute forgery. The ratio as propounded by the Hon'ble Apex Court in the said case squarely applies in the case on hand. The relevant paragraphs are reproduced hereinbelow:
"10. Section 467 (in so far as it is relevant to Page 31 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Section 464 defining "making a false document" is extracted below:
"464. Making a false document.--A person is said to make a false document or false electronic record---
Page 32 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined First.--Who dishonestly or fraudulently - (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Page 33 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined Thirdly.-- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate Page 34 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a Page 35 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a Page 36 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some Page 37 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted."
20. Now I may come to Section 420 of IPC. Section 415 of IPC deals with 'cheating' and reads as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
21. A bare reading of the Section suggests that to hold a person guilty of cheating, as defined in Section 415 of the IPC, it is necessary to show that at the time of making the promise, he had fraudulent or dishonest intention to mislead any authority or to induce the person so deceived to do some thing which he would not otherwise do.
Page 38 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined However in the facts of the present case, such ingredients are missing.
22. The ingredients required to constitute an offence of cheating have been succinctly laid down in Ram Jas Vs. State of U.P., reported in (1970) 2 SCC 740 as follows:
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
23. Similar views were echoed in Medchl Chemicals & Pharma (P) Ltd. Vs. Biological E. Ltd. & Ors., reported in (2000) 3 SCC 269, wherein it was observed that:
"In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill Page 39 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined the promise by itself would not attract the provisions of Section 418 or Section 420.
Mens rea is one of the essential
ingredients of the offence of cheating
under Section 420. As a matter of fact
Illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract...................."
24. It is well settled that in order to constitute an offence of cheating or forgery, the prosecution has to prove that the accused had fraudulent or dishonest intention at the time of making the representation which, in my opinion, the prosecution has completely failed to establish in the present case. Therefore in view of the aforesaid observations made by the Hon'ble Apex Court in the aforesaid decision as well as provisions of law, if the facts of the present case are examined, in that event, it is found out that there are allegations with regard to the forgery of the documents and based on it, an attempt is being made by the applicants to grab the valuable land. However from the facts of the case as narrated hereinabove, I do not find any substance in the allegations leveled by the respondent no.2 in view of the fact that in the revenue proceedings, the Coordinate Bench of this Page 40 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024 NEUTRAL CITATION R/CR.MA/15438/2018 JUDGMENT DATED: 25/04/2024 undefined Court has quashed and set aside the orders passed by the revenue authorities by allowing the writ petition filed by the applicants. Not only that, specific observations have been made in this regard. Over and above that, merely by mentioning of incorrect particulars of metes and bounds, it cannot be said that the applicants have committed alleged offence in view of the fact that as observed by the Coordinate Bench of this Court while allowing the writ petition filed by the applicants, description on three sides is same and only on one side i.e. on western side, there is some discrepancy in the description of boundary. Therefore in my considered opinion, the averments in the FIR if assume to be true, do not make out any offence under Sections 406, 409, 420, 465, 468, 471 and 120(B) of the IPC. Therefore, the present application deserves to be allowed.
25. In the result, the present applications are allowed. The impugned FIR being C.R. No.I-58/2018 registered with Babara Police Station, Amreli for the offences is hereby quashed and set aside qua the applicants. All consequential proceedings pursuant thereto stand terminated qua the applicants. Rule is made absolute. Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 41 of 41 Downloaded on : Fri May 10 20:59:31 IST 2024