Gujarat High Court
Sunilbhai Gulabsinh Padhiyar vs State Of Gujarat on 24 September, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/2409/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2409 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 2438 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 2439 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 2397 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HANSABEN W/O SUNILBHAI GULABSINH PADHIYAR
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
MR ISHAN MIHIR PATEL(6508) for the Respondent(s) No. 5,6
MR VISHWAS K SHAH(5364) for the Respondent(s) No. 4
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3
MS NISHA THAKORE, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/09/2020
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R/SCR.A/2409/2020 JUDGMENT
ORAL JUDGMENT
RULE. Learned advocates waive service of notice of rule on behalf of the respective respondents. These petitions involve identical questions on law and facts and hence, they are decided by this common judgment.
1. Challenge in these petitions filed under Article 226 of the Constitution of India is to the communications dated 02.09.2019, 04.10.2019 and 10.10.2019 addressed by the respondent, Police Sub Inspector, Vadodara Taluka Police Station, Vadodara Rural to the respondent-Bank Manager, whereby the respondent - Bank has been instructed to "freeze" the bank accounts of the petitioners in exercise of powers under section 102 of the Criminal Procedure Code.
2. For the purpose of narration of facts, Special Criminal Application No.2409 of 2020 is taken as the lead matter;
The land bearing Block No.116 (Old Revenue Survey No.70/54), situated at Village : Sherkhi, District : Vadodara, ad-measuring 0-94-09 Hectare-Are-Sq. Metres, was proposed to be acquired under the provisions of the National Highways Act, 1956 (hereinafter referred to as "the Act") for the purpose of Vadodara - Mumbai Expressway. The Notification under section 3A of the Act came to be published on 03.03.2014 in the local newspapers.
2.1 It appears that on 09.09.2016, two individuals, viz. (i) Page 2 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT Gajendrasinh Pratapsinh Parmar and (ii) Dharmendrasinh Gohil, filed objections before the competent authority on the basis of a sale deed in respect of the subject land executed in their favour on 06.09.2016. The competent authority passed award dated 05.09.2017, whereby the land bearing Block No.116 of Village : Sherkhi, Taluka & District :
Vadodara, ad-measuring 0-21-38 H-A-Sq. Meters, was acquired for a total compensation of Rs.1,53,10,495/-. Proceeding under section 3H(3) of the Act was initiated for determining the persons who are entitled to receive the amount payable to each of them. After hearing both the sides, the competent authority rejected the objections and directed to make payment of compensation to the land- owners, whose names are reflected in the Village Form No.7/12 extract, vide order dated 25.10.2018.
2.2 It appears that on 23.09.2019 a first information report being C.R. No. I-56 of 2019 was lodged with Vadodara Taluka Police Station by one of the objectors -
Gajendra Pratapsinh Parmar against all the 21 co-owners of the subject land inter alia alleging that the accused persons, in connivance with each other, fraudulently obtained the amount of compensation awarded in respect of the land ad- measuring 0-25-00 H-A-Sq. Meters, out of the land ad- measuring 0-94-09 H-A-Sq. Meters, of Block No.116 (Old Revenue Survey No.70/54), which was sold to the complainant and witness - Dharmendra Ravjibhai Gohil and the sale deed was executed on 06.09.2016. Out of the Page 3 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT land allegedly sold in favour of the complainant, land ad- measuring 0-18-85 H-A-Sq. Meters, has been acquired by the competent authority for the purpose of Vadodara - Mumbai Expressway. It is alleged that though the accused persons knew that the complainant and the other witness were legally entitled to receive the awarded amount, the accused persons received the entire awarded amount on the premise that their names appear as co-owners of the land in question in the Village Form No.7/12 abstract and had thereby, committed the offence punishable under sections 420 and 114 of the Indian Penal Code.
2.3 During the course of investigation, the police allegedly found some incriminating material and accordingly, deemed it necessary to address the impugned communications to the respondent-bank instructing them to "freeze" the bank accounts of the individuals named therein. Being aggrieved by the aforesaid action of the respondents, the present petitions have been filed.
3. Mr. N.K. Majmudar, learned advocate for the petitioners, submitted that the competent authority has duly considered the objections filed by the complainant and other witness and has, thereafter, rejected the same by way of a reasoned order. It is not the case of the complainant and other witness that the objections jointly filed by him and other witness before the competent authority have not been adjudicated upon by the competent authority or that Page 4 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT they have not been afforded reasonable opportunity to defend themselves. It was submitted that once the objections have been rejected on merits, the land owners are vested with the absolute right and privilege to withdraw the amount of compensation and to utilize the same in the manner they desire.
3.1 The learned advocate for the petitioner further submitted that the petitioners in Special Criminal Application Nos.2409/2020, 2397/2020 and 2438/2020 are not connected with the proceedings before the competent authority in any manner whatsoever. The petitioners have no dispute with the land owners and / or the complainant and other witness. They have nothing to do with the subject land or the land acquisition proceedings. In spite of that their bank accounts have been 'freezed', without there being any cognate evidence of any kind regarding any transaction/s between the petitioners and the land-owners. It was, accordingly, urged that the action of the respondents of freezing the bank accounts of the petitioners is illegal and without any basis and it deserves to be quashed and set aside.
3.2 Mr. Majmudar, learned advocate for the petitioners, further submitted that the impugned communications is also bad in law for the reason that the same has been issued without following the principles of natural justice. It was submitted that the subject matter of dispute is civil in Page 5 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT nature and it is always open for the complainant to avail such remedy. It was, accordingly, urged that the present petitions may be allowed and appropriate directions may be issued to the respondents to de-freeze the bank accounts of the petitioners.
3.3 In support of his submissions, learned advocate Mr. Majmudar placed reliance upon the following decisions of this Court;
(A) Gangaben Wd/o Govindbhai Vajehsingh Vanjara v. State of Gujarat, 2017 JX (Guj) 99.
(B) Bhaveshbhai Dahyabhai Modi v. State of Gujarat, 2017 JX (Guj) 65.
4. Mr. Ishan Patel, learned advocate appearing for respondent Nos.5 and 6, who were the objectors in the proceedings under section 3(H)3 of the Act, submitted that land ad-measuring 0-25-00 H-A-Sq. Meters had been purchased by respondent Nos.5 and 6 by way of registered sale deed dated 24.08.2016. It was submitted that out of the total land bearing Block No.116, land ad-measuring 0-21-28 H-A-Sq. Meters has been acquired by the competent authority and out of the land so acquired, land ad- measuring 0-18-85 belonged to respondent Nos.5 and 6. It was further submitted that the petitioners have alternate remedies under section 452, 453 or 457 of the Code, as the case may be and therefore, this Court may not entertain these petitions. It was, accordingly, urged that respondent Page 6 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT No.5 & 6 are entitled to receive compensation for the subject land, which has been acquired.
5. Ms. Nisha Thakore, learned Additional Public Prosecutor, submitted that during the course of investigation into the complaint, it appeared to the investigating agency that respondent Nos.5 and 6 were entitled to receive compensation since out of the total area of land purchased by them by way of registered sale deed dated 06.09.2016, land ad-measuring 0-18-85 H-A-Sq. Meters had been acquired by the competent authority for the purpose of the Expressway. The investigating agency also found that false affidavit, power of attorney and consent letters were produced by accused - Fatehsinh Devjibhai Gohil before the authority in order to receive the entire amount of compensation in his own name and had, thereafter, transferred the amounts into different accounts, including the account of the petitioner in Special Criminal Application Nos.2409/2020, 2397/2020 and 2438/2020, who happen to be the daughters / son-in-law of said Fatehsinh Devjibhai Gohil. It was, accordingly, urged that since the investigation is still under progress and necessity was felt to safeguard the interests of the actual land-owners, the impugned communication under section 102 Cr.P.C had been issued. The attention of the Court was drawn towards the order passed in Criminal Misc. Application No.19526 of 2019 dated 23.10.2019 passed by the coordinate Bench of this Court whereby the police was permitted to proceed Page 7 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT further with the investigation in accordance with law. It was, therefore, prayed that the present petitions may be rejected.
6. Mr. Vishwas Shah, learned advocate appearing for the respondent-Bank, supported the submissions advanced by learned advocate Mr. Ishan Patel and the learned Additional Public Prosecutor and adopted their arguments.
7. Heard learned advocates on both the sides and perused the material on record. Before we advert to the merits of the case, it would be beneficial to high-light certain facts which are not in dispute. The preliminary Notification under section 3A of the Act in respect of the subject land came to be published on 03.03.2014. In the acquisition proceedings before the competent authority, the complainant, respondent No.5 herein and the other witness, had jointly filed detailed objections vide objections dated 09.09.2016. Just two days prior to the filing of such objections, i.e. on 06.09.2016, and after the publication of the final Notification under section 3D of the Act, it appears that a registered sale deed was executed in favour of the complainant and other objector by the co-owners of the subject land. On the basis of such registered sale deed, change Entry No.11369 dated 07.09.2016 was effected in the revenue record; however, subsequently, the said change entry was set aside by the competent revenue authority vide order 09.01.2017. Against the order dated 09.01.2017, the Page 8 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT complainant has preferred appeal being R.T.S. Appeal No.83 of 2017 before the District Collector, Vadodara, which is reported to be pending adjudication. The award under section 3G of the Act was passed on 05.09.2017, whereby land ad-measuring 0-21-38 H-A-Sq. Meters of Block No.116 (old Revenue Survey No.70/54) came to be acquired for total compensation of Rs.1,53,10,495/-. In the proceedings initiated under section 3H(3) of the Act, the competent authority has duly considered every aspect of the case and has, thereafter, rejected the objections filed by the complainant and other objector, vide order dated 25.10.2018 and has ordered payment of compensation to the co-owners of the subject land, whose names are reflected in the Village Form No.7/12 extract. As per the present status, the names of 21 persons, who have been arraigned as accused in the present complaint, appear as co-owners of the subject land in the Village Form No.7/12 extract, copy of which has been produced on record by the petitioners.
8. Apparently, the case involves disputed questions of fact. It is the say of the complainant, respondent No.5 herein and the respondent No.6 that they are the joint owners of the subject land in view of the registered sale deed dated 06.09.2016 executed in their favour. However, it is required to be noted that precursor to the execution of the said sale deed, is an agreement to sell purported to have been executed in their favour before about six years, i.e. on Page 9 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT 17.04.2010. It appears that in the said sale deed dated 06.09.2016, the 'consent' of all the co-owners of the subject land had not been obtained, which fact would raise question marks about the validity of the sale deed itself. In other words, the names / signatures of three co-owners, whose names are reflected in the Village Form No.7/12 extract, does not find place in the sale deed. Apart from that there is variance in the amount of sale consideration of the subject land, as appearing in the sale deed and in the objection application dated 09.09.2016. It appears that on the basis of the sale deed dated 06.09.2016, respondent No.5 (original complainant) and respondent No.6 had made an application before the revenue authority seeking change in the record of rights, which was accepted vide Entry No.11369 dated 07.09.2016. However, the said entry was, subsequently, cancelled by the competent revenue authority (Mamlatdar) vide order dated 09.01.2017. It appears that against the order dated 09.01.2017, respondent Nos.5 and 6 have preferred appeal before the District Collector, Vadodara being R.T.S. Appeal Nos.83/2017 and 84/2017, which is reportedly pending. Hence, the names of the 21 accused persons named in the complaint were reflected as co-owners of the subject land at the relevant point of time. The competent authority has believed the possession of the 21 co-owners in respect of the subject land, which is evident from the observations made in the order dated 25.10.2018 wherein, it has been recorded that one of the co-owners, viz. Kanubhai Devjibhai Gohil (original accused No.2) was Page 10 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT present at the land site on 08.03.2016 when the competent authority had carried out physical inspection of the site and had also signed in the joint panchkyas prepared at the relevant time, which proves the possession of the co-owners in respect of the subject land. The competent authority has also recorded that one of the co-owners, viz. Fatehsinh Devjibhai Gohil, has filed affidavit dated 29.09.2018, wherein he has categorically stated that he has filed a civil suit regarding the subject matter before the competent civil Court at Vadodara and that he shall abide by any order that may be passed by the civil Court in the said proceedings regarding deposit of the amount of compensation. Thus, it is evident that civil proceedings are pending between the parties both before the appellate revenue authority and also before the competent civil Court at Vadodara regarding the subject land.
9. If one goes through the order dated 25.10.2018 passed by the competent authority under section 3H(3) of the Act, it is apparent that the said authority has carefully examined every aspect of the case, including the aspects of the execution of the registered sale deed dated 06.09.2016, the change Entry No.11369 dated 07.09.2016 and the subsequent cancellation of such entry vide order dated 09.01.2017. The competent authority found that the sale deed in question was executed after the issuance of the Notifications under section 3A and 3D of the Act, which was contrary to the provisions of the Act. The execution of the Page 11 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT sale deed dated 06.09.2016 is also barred by the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 since the preliminary Notification under section 3A of the Act was published on 03.03.2014 and the sale deed had been executed on 06.09.2016, i.e. after the publication of the preliminary Notification under section 3A of the Act.
10. The date of filing of objections in the proceedings under section 3H(3) of the Act is noteworthy. The sale deed in question was executed on 06.09.2016 in pursuance of an agreement to sell purported to have been executed before about six years, i.e. on 17.04.2010. If the complainant (respondent No.5) and respondent No.6 were really concerned about their rights in respect of the subject land, they would have filed the objections immediately after the issuance of the preliminary Notification under section 3A of the Act. However, they did nothing and woke out of slumber only on 09.09.2016, i.e. just two days after the execution of the registered sale deed on 06.09.2016, by filing the objections. The entire sequence of events casts doubts about the intentions of the complainant, particularly, when civil proceedings are pending between the parties.
11. It is pertinent to note that in the proceedings under section 3H(3) of the Act, the complainant and other witness, respondent Nos.5 and 6 herein, had alleged that Fatehsinh Devjibhai Gohil, original accused No.1, has procured false Page 12 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT affidavit of the co-owners and forged power of attorney and consent letters of original accused Nos.2 to 21 in order to receive the entire amount of compensation. However, the said allegation did not find favour with the competent authority though under the provisions of section 3H(3) of the Act, the competent authority is empowered to examine in detail the issue regarding eligibility of persons, who, in its opinion, are entitled to receive the amount payable to each of them, if several persons claim that they are interested in the amount deposited under sub-section (1) of section 3H of the Act. Once it is established that original complainant, respondent No.5 herein and the other witness, are not eligible to receive any compensation in the proceedings initiated under section 3H(3) of the Act, the respondent- police authority was required to be careful and circumspect in their action, more particularly, when civil proceedings are pending between the parties before two different forums, viz. one before the Collector, Valsad and the other before the Court of Civil Judge (S.D.), Vadodara.
12. Coming now to the provisions of section 102 of the Code, it would be apposite to refer to the same, which reads thus:
"S.102. Power of Police Officer to seize certain property. -
(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which Page 13 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same."
12.1 A plain reading of section 102(1) of the Code makes it abundantly clear that the police officer has the power to seize any property, which is found under "circumstances" that create suspicion of the commission of any offence. Thus, in a given case, one has to look for the "circumstances" under which a "property" has been seized, if the validity of the exercise of powers under section 102 of the Code has to be examined. In order to have a better insight on the issue whether a police officer investigating into an offence can issue prohibitory orders in respect of a bank account of the accused in exercise of powers under section 102 of the Code, it would be beneficial to refer to a decision of the Apex Court in the case of State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685. While considering the applicability of section 102 of the Code in a given case, the Apex Court held that if circumstances exist in relation to a bank account, then Page 14 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT section 102(1) of the Code would be attracted empowering the police officer investigating the offence to seize the bank account and to issue orders prohibiting the account from being operated upon, if the property has direct links with the commission of offence for which the police officer is investigating into. Thus, the bank account of an accused or of his relatives could be said to be 'property' within the meaning of sub-section (1) of section 102 of the Code.
13. In a decision of this Court rendered in the case of Paresha G. Shah v. State of Gujarat passed in Special Criminal Application No.150 of 2015 decided on 15.06.2015, it has been observed as under;
"Like any other property a bank account is freezable. Freezing the account is an act in investigation. Like any other act, it commands and behaves secrecy to preserve the evidence. It does not deprive any person of his liberty or his property. It is necessarily temporary i.e. till the adequate material is collected. It clothes the authority with the power to preserve a property subjected to have been used in the commission of the offence in any manner. The property, therefore, requires to be protected from dissemination, depletion or destruction by any mode. Consequently, under the guise of being given information about the said action, no accused, not even a third party, can overreach the law under the umbrella of a sublime provision meant to protect the innocent and preserve his property. It is also not necessary at all that a person must be told that his bank account, which is suspected of having been used in the commission of an offence by himself or even by another, is being frozen to allow him to have it closed or to have its proceeds withdrawn or transferred upon Page 15 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT such notice."
14. In the present case, it is an admitted position that the competent authority has duly considered the rights of the concerned under section 3G of the Act while passing the award dated 05.09.2017 in Compensation Case No.13 of 2013. The subsequent order dated 25.10.2018 passed under section 3H(3) of the Act dealt with the submissions dated 09.09.2016 made by the objectors on the registered sale deed dated 06.09.2016 as also on the change Entry No.11369 dated 07.09.2016, which was subsequently rejected by the revenue authority vide order dated 09.01.2017. Thus, the competent authority has duly considered all the objections raised by the original complainant and other objector. It is a matter of fact that against the order dated 09.01.2017, the objectors have filed appeal before the Collector, Vadodara, which is reported to be pending. The civil suit filed by one of the co-owners of the land, whose name is reflected in the Village Form No.7/12 extract, is also pending. Thus, admittedly, civil disputes are pending between the parties regarding the subject land.
15. In the light of the principle laid down by the Apex Court in State of Maharashtra v. Tapas D. Neogy's case (supra), the police officer concerned would definitely have the power to order 'seizure' of the bank account of an accused or of his relatives, as the same is 'property' within the meaning of section 102 of the Code. It is to be noted that seizure and production in Court of any property will Page 16 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT have a two-fold effect. Seizure may be necessary in order to preserve the property, for the purpose of enabling the Court, to pass suitable orders under section 452 or 453 of the Code, as the case may be, at the conclusion of trial; and production of the property may be necessary as evidence of the commission of the crime. This two-fold object of investing the police with the powers of seizure, have to be borne in mind while setting this legal issue.
16. It is evident from the record that the investigating officer was well aware about the pendency of civil litigation and revenue proceedings between the parties regarding the subject land. When the issue was subject to civil jurisdiction before the competent civil Court and revenue forum, the investigating officer ought not to have initiated any action under the criminal jurisdiction in connection with the compensation awarded under the provisions of the National Highways Act, 1956. The property seized under section 102 of the Code has to be reported to the Magisterial Court having jurisdiction and if the property becomes subject matter of criminal complaint, then its outcome would be subject to the order that may be passed under sections 452, 453 or 457 of the Code, as the case may be. Under the circumstances, the action of respondent-Police Sub Inspector of instructing the respondent-Banks to 'freeze' the bank accounts of the petitioners would create a conflict between the civil and criminal jurisdictions.
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17. It is true that the petitioners have an alternate remedy under the Code for redressing their grievances. However, the availability of alternate remedy does not preclude the High Court from exercising jurisdiction in a particular case. In the face of alternate statutory remedies, when the High Court declines to exercise the jurisdiction under Article 226 of the Constitution, it is a self imposed restriction only. Considering the overall facts and circumstances of the case and when the dispute is pending adjudication before two different forums where the parties are agitating their civil rights, no fruitful purpose would be served in continuing with the order of "seizure" of the bank accounts of the petitioners. There appears to be no justification in "freezing" the bank accounts of the petitioners. All that the respondents seem to want to establish from the bank account is that some funds were transferred by Fatensinh Devjibhai Gohil to his relatives' accounts. This can be proved at any time by comparison of the two accounts and since the entries in the accounts are always available, no purpose seems to be served by freezing the bank accounts of the petitioners. Hence, the impugned communication issued by the respondent authority deserves to be quashed and set aside.
18. For the foregoing reasons, the petitions are allowed. The impugned communications dated 02.09.2019, 04.10.2019 and 10.10.2019 issued by the respondent-P.S.I. are quashed and set aside. The petitioners in Special Page 18 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021 R/SCR.A/2409/2020 JUDGMENT Criminal Application Nos.2409/2020 and 2397/2020 are directed to execute a bond of Rs.50,00,000/- each to the satisfaction of the learned Principal Sessions Judge, Vadodara within a period of 15 days from today. No sooner the petitioners execute such bonds, the Investigating Officer shall inform the banks concerned to de-freeze the accounts of all the petitioners, including the petitioners in the remaining two petitions and shall permit the account holders to operate their accounts. Each of the petitioners are directed that they shall not cause any damage to the bank entries, which are already effected in the past and are relevant for the check period. The petitions stand disposed of accordingly. Rule is made absolute to the above extent. Direct service is permitted.
(GITA GOPI,J) Pallavi / Pravin Page 19 of 19 Downloaded on : Sun Feb 21 13:12:06 IST 2021