Gujarat High Court
Mohabatsinh Pragji Jadeja vs State Of Gujarat on 4 February, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/2974/2011 ORDER DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2974 of 2011
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MOHABATSINH PRAGJI JADEJA & 8 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR BRIJESH RAMANUJ for MR ANKIT SHAH(6371) for the Applicant(s) No.
1,2,3,4,5,6,7,8,9
MR DEV PATEL for MR MEHUL SHARAD SHAH(773) for the Respondent(s)
No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
MS MD MEHTA, ASSISTANT PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 04/02/2022
ORAL ORDER
1. Heard learned Advocate Mr. Brijesh Ramanuj for learned Advocate Mr. Ankit Shah on behalf of the petitioners and learned APP Ms. M. D. Mehta for the respondent-State, Learned Advocate Mr. Dev Patel for learned Advocate Mr. Mehul Sharad Shah on behalf of the original complainant.
2. The present petition impugns an FIR registered by the respondent no. 2 herein being C. R. I-42 of 2011 registered with the Coastal Police Station Mundra, District: Kutch alleging offences punishable under Sections-143 and 447 of the Indian Penal Code inter Page 1 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 alia against the applicants herein. The allegation as leveled in the FIR being that the complainant who claims to be owner and occupier of the land alleges that on 20th July, 2011 at around 08.00 am when the applicant was undertaking agricultural activity on the land in question being Revenue Survey No. 83/1 and 83/2 at Village Baroi, at around 11.00 am, the applicants had allegedly come to the land in question seated in a tractor and entered into the agricultural land and threatened the complainant to leave the land in question since according to the complainant, it was stated by the applicants and others that the land belonged to them and they were going to till the land. Making such allegations, the impugned complaint inter alia alleging an offence of Criminal trespass had been registered.
3. Learned Advocate Mr. Ramanuj on behalf of the learned Advocate Mr. Ankit Shah for the petitioners would submit that as such the complainant is trying to establish his claim on the land in question and also attempting to establish possession over the land in question by filing the Criminal complaint. Learned Advocate Mr. Ramanuj would submit that as a matter of fact the applicants were relatives and labourers engaged by one Narendrasinh Jadeja, who was owner and occupier of the land since the year 2007. Learned Advocate Mr. Ramanuj would further submit that the complainant is claiming rights over the land on strength of Page 2 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 their predecessor being declared as tenant of the land, but at the same time it is submitted that, the concerned predecessor had relinquished his right in favour of the original owner, which fact had been mutated in the revenue record. It is further submitted that the said Narendrasinh Jadeja had purchased the land from a person whose father had purchased the land from wife of the original land lord. It is submitted that since at the relevant point of time the consequent effect of the relinquishment by the predecessor had not been mutated in the revenue record. i.e. the fact of the tenant tilling the land not being deleted, the complainant and her husband were lying to take undue advantage on account of the same. For the sole reason, according to the learned Advocate Mr. Ramanuj, the impugned complaint deserves to be set aside by this Court.
3.1. Learned Advocate Mr. Ramanuj would further elaborate by submitting that the land in question was originally of the ownership of one Shri Bhanji Monshi and such fact was mentioned in Entry No. 123 in the revenue record and whereas the said entry also mentioned that the land was being tilled by the one Jusa Abha as a tenant. That according to learned Advocate Mr. Ramanuj after demise of Jusa Abha his legal heir Fakirmamad Jusa had relinquished his right as a tenant over the land in question in favour of the original land lord vide an agreement dated 11.09.1968 and by further executing an affidavit dated 03.10.1968 before Page 3 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 the Mamlatdar stating as such.
3.2. Learned Advocate Mr. Ramanuj would submit that after the affidavit and the agreement, in the Revenue Record and the land was shown as belonging to the ownership of the original owner i.e. Shri Bhanji Monshi. Learned Advocate Mr. Ramanuj would further submit that vide a deed dated 20th November, 1973, the said Bhanji Monshi had transferred all rights over the land in question to his wife Panbai Bhanji. The said transaction was mutated in the revenue record vide Entry no.
736. Learned Advocate Mr. Ramanuj would further submit that the said Panbai Bhanji had sold the said land to one Harijan Murji Dhaya vide a registered Sale deed dated 23.07.1984 and whereas Entry with regard to the said transaction had been mutated as Entry no. 2012.
3.3. It is further stated that the said Harijan Murji Dhaya had partitioned the land and half parcel of the land had come to the ownership of his son one Deshal Murji which partition had been recorded in the revenue records as Entry No. 2013. Learned Advocate Mr. Ramanuj would further submit that the said Deshal Murji had applied for electricity connection from the Gujarat Electricity Board for carrying out agricultural activity on the land in question and such connection had been granted in favour of the then owner of the land in the year 2001. Page 4 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022
R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 3.4. In the interregnum according to learned Advocate Mr. Ramanuj, since the husband of the complainant was claiming some right upon the land in question on basis of the fact that Entry with regard to the tenant having not been deleted from the Revenue Record, therefore, the original owner i.e. Harijan Deshal Murji had initiated a Tenancy Case No. 69 of 2003 and whereas vide order dated 04.02.2004, the Special Mamlatdar had been pleased to inter alia hold that upon the affidavit filed by the predecessor of the complainant in the year 1968, name of the tenant should have been removed from the revenue record at that stage and thus holding the Mamlatdar had directed that such name should be deleted from the Revenue Record. It would be pertinent to mention here that the fact of the transfer of the land ownership of the land had also been noted by the Mamlatdar.
3.5. Learned Advocate Mr. Ramanuj would further submit that the husband of the complainant had thereafter preferred an appeal before the Deputy Collector, Bhuj challenging the order of the Mamlatdar and whereas the said order had been confirmed by the Deputy Collector vide order dated 25.01.2007 in Appeal no. 4/2006. Learned Advocate Mr. Ramanuj would further submit that it is during the interregnum after the Deputy Collector had confirmed the order of the Mamlatdar that one Page 5 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 Narendrasinh Gulabsinh Jadeja i.e. relative of the applicants herein had purchased the land in question from the then owner of the land i.e Harijan Deshal Murji vide two separate registered Sale deeds dated 09.2.2007, such fact being mutated in the revenue record under the Entry No. 4623 and 4622.
3.6 It is further stated by learned Advocate Mr. Ramanuj that after the land had been purchased by the present applicants since the order of the Mamlatdar and the Deputy Collector in Tenancy Case for deletion of name of the tenant had not been given effect to, even the said Narendrasinh Jadeja had preferred a Tenancy Case No. 429 of 2007 inter alia requesting that the Entry in the revenue record which shows Bhajir Fakir Mahmod Jusa Abha i.e. husband of the complainant as tilling the land be deleted from the record. The Mamlatdar, Bhuj, Kutch vide an order dated 04.07.2007, had been pleased to accept the contention of the owner of the land and whereas the said endorsement was directed to be deleted from the Revenue Record.
3.7. Learned Advocate Mr. Ramanuj would further submit that husband of the complainant after a delay of approximately 33 years, had challenged Certification of Entry No. 736, 2012 and 2013 by preferring an Appeal no. 130 of 2008 before the Deputy Collector, Bhuj Page 6 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 and whereas the owner of the land Narendrasinh Gulabsinh Jadeja had not been joined in such litigation and whereas vide an order dated 7 th November, 2008, all the three entries referred to herein above were directed to be deleted from the revenue record by the Deputy Collector. Learned Advocate Mr. Ramanuj would submit that the said order had been challenged by the owner of the land Narendrasinh Jadeja before the Collector, Kutch by preferring Revision Application No. 64 of 2008 and whereas vide an order dated 25.08.2009 the order passed by the Deputy Collector had been confirmed by the Collector.
3.8. Learned Advocate Mr. Ramanuj would submit that the said order had been challenged by the owner of the land by preferring an appeal before the Revisional Authority being the SSRD by preferring Revision Application No. 23 of 2009 and whereas vide an order dated 07.09.2011, the Learned Special Secretary Revenue Departments (Appeals) had been pleased to direct the parties to maintain status quo as regards the Revenue Record with regard to the land in question till the final disposal. Learned Advocate Mr. Ramanuj would submit that it is after the order of the Collector and before the order of the Status quo with regard to the Revenue Entries being passed by the SSRD that the complainant filed the present impugned complaint inter alia alleging the Criminal trespass.
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R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 3.9. Learned Advocate Mr. Ramanuj would submit that as such the present applicants were relatives as well as labourers engaged by the owner of the land Narendrasinh Jadeja and whereas the impugned complaint had been preferred by the complainant just to establish possession over the land in question and whereas the applicants have been unnecessarily roped in as accused. Learned Advocate Mr. Ramanuj would further submit that while Section-447, states with regard to the punishment for Criminal trespass, the term Criminal trespass has been defined in Section-441. Learned Advocate Mr. Ramanuj would submit that no offence of Criminal trespass as explained under Sections-441 and punishable under Section-447 of the Indian Penal Code has been committed by the applicants.
3.10. Learned Advocate Mr. Ramanuj would submit that the facts narrated herein above would show that neither the applicants had entered into a property which was of the possession of another nor were the applicants unlawfully in the property in question. Learned Advocate Mr. Ramanuj would submit that the complainant, having not even prima facie established as to how they remain or are in possession, more particularly, predecessor of the complainant having already relinquished his right over the property as far as back in the year 1968. Learned Page 8 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 Advocate Mr. Ramanuj would further submit that while the complainant after approximately 35 years, were attempting to take undue advantage of a mistake committed by the Revenue Authorities that is of not removing the name of the predecessor of the complainant from the Revenue Record as tenant over the land in spite of the fact that the said predecessor had already relinquished tenancy rights in favour of the land lord in question and whereas the land also having been sold and re-sold. Thus, according to the learned Advocate Mr. Ramanuj without showing any semblance of right over the land, the FIR is filed only to establish possession over the land in question.
3.11. Learned Advocate Mr. Ramanuj, at this stage, would further submit that as such even the order of the Deputy Collector which had been confirmed by the Collector had been set aside by the Revisional Authority vide an order dated 26.11.2012. Learned Advocate Mr. Ramanuj would further submit that thereafter, the order of the Revisional Authority had been challenged by the family of the complainant by preferring Special Civil Application No. 16836 of 2012 and whereas while originally vide an order dated 24.12.2012, this Court had directed the parties to maintain status quo whereas the owner of the land i.e. Narendra Jadeja had preferred a Civil Application No. 1495 of 2013 for vacating of Interim relief and vide an order dated 22.02.2013, this Court Page 9 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 had been pleased to vacate the Interim Relief.
3.12. Learned Advocate Mr. Ramanuj would submit that the fact of the complainant as such having no right over the land in question has been confirmed by the order of the SSRD and whereas since as of now there is no Interim Relief against the said order, the said Narendrasinh Gulabsinh Jadeja, who is the owner of the land in question, and any person claiming through him upon the entering into the land in question could not be stated to commit Criminal trespass. Learned Advocate Mr. Ramanuj has also, at this stage, drawn the attention of this Court to the fact that the complainant, immediately upon the order being passed by the Deputy Collector in November 2008, setting aside Entries No. 736, 2012 and 2013, had sold the land in question. Learned Advocate Mr. Ramanuj would submit that this fact also would reflect upon the conduct of the complainant and family members. Learned Advocate Mr. Ramanuj would therefore submit that the complaint being an abuse of the process of law, this Court may be pleased to quash and set aside the same.
4. As against the same, learned Advocate Mr Dev Patel for learned Advocate Mr. Mehul Sharad Shah would submit that issue of possession over the land in question, remains disputed. Learned Advocate Mr. Patel would submit that while there may be intervening Revenue Entries and Page 10 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 also transactions with regard to sale of land in question but the fact remains that the the possession of the land, as belonging to the either party has not been established in any competent Court of Law. Learned Advocate Mr. Patel would submit that the complainant being in possession of the land at the relevant point of time was justified in filing a complaint for Criminal trespass, more particularly, since persons who were otherwise not legally entitled to enter into the land in question had entered into the land and had intimidated the complainant.
4.1. Learned Advocate Mr. Patel would further submit that even the fact of the SSRD having set aside the order of the Deputy Collector as confirmed by the Collector would be of no avail, more particularly, since the petition challenging the order of the learned Revisional Authority is still pending consideration. Learned Advocate Mr. Patel would submit that serious allegations being raised in the complaint, this Court exercising discretionary jurisdiction may not interfere with the complaint.
5. Learned APP Ms. M. D. Mehta for the State would submit that the applicants, claiming through one Narendrasinh Jadeja, who had purchased the land vide registered Sale deed in the year 2007 and such registered Sale deed and Sale deeds in favour of predecessor in title of the Page 11 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 said Narendrasinh Jadeja not being interfered with, it could not be stated that the applicants upon entering into the land would be committing an offence of Criminal trespass.
6. Heard learned Advocates for the parties who have not submitted anything further.
7. At the outset, it is required to be noted as evident from perusal of order of this Court dated 22.02.2013 in Civil Application No. 1495 of 2013 whereby the interim relief in favour of the original petitioner that is the complainant herein being vacated that the complainant had sold the land vide three different Sale deeds dated 22.03.2007, 03.07.2007 and 23.10.2009. The dates mentioned would be absolutely relevant since the semblance of right which had been borne out in favour of the complainant was through an order dated 07.11.2008 by the Deputy Collector whereby Entries 736, 2012 and 2013 came to be set aside.
7.1. It would be further pertinent to mention here that the said order while it had been confirmed by the Collector vide order dated 25.08.2009, the original owner had preferred a Revision Application and the Revisional Authority had directed to maintain status quo with regard to the Revenue Record of the land in question vide order dated Page 12 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 07.09.2011. Thus, the fact which would be relevant and evident from these dates is that at a stage when the complainant or her husband had no real title or interest upon the land in question, merely on strength of an order passed by the Revenue Authority only they had twice sold the land in question furthermore even after the order of the Collector the land was sold once again. That after having thrice sold the land, the complainant was still claiming the possession over the land in question in the year 2011. The dishonesty on part of the complainant is clearly evident from this narration.
7.2. It would be appropriate to state at this stage that for alleging commission of offence punishable under Section-447, i.e. with regard to Criminal trespass, the accused should have committed offence of Criminal trespass as explained at Section-441. Section- 441 is quoted herein below for benefit.
'Section 441: Criminal trespass - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".' Page 13 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 7.3. Section-441 postulates two different contingencies. i.e.
a) Entering in the property in possession of another
b) Lawfully entering a property but unlawfully remaining there. The later requirement being common in both cases i.e. intimidate, insult, annoy person in possession or commit/ intend to commit offence. Thus, for Criminal trespass to be alleged, the property being in possession of another is the primary requirement.
7.4. Having regard to the contingencies postulated in Section-441, the primary requirement is that the property should be in possession of another. In the instant case, there is overwhelming material from the year 1968 onwards which would show that the property was never belonging to the complainant. As has been noticed above, after the property had reverted back to its original owner, the same had changed other ownership, by way of registered sale deeds, multiple times. Furthermore the person at whose instance the petitioners were on the land was the present owner of the land through registered sale deeds. Thus, the complainant having lost legal right upon the land in the year 1968 and not having initiated any proceedings for 33 years, could not on the strength of the orders passed by the Deputy Collector, confirmed by the Collector be stated to be in possession of the land, and nor could the petitioners be stated to have committed Criminal trespass by entering into the land. Page 14 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022
R/SCR.A/2974/2011 ORDER DATED: 04/02/2022
8. Thus, in the considered opinion of this Court, the present impugned complaint is nothing but an abuse of the process and whereas the complainant by instituted the complaint malafidely and for a malicious purpose of trying to establish possession over the land in question.
8.1. In the instant case in the considered opinion of this Court, the complaint was filed to establish possession by the complainant over the land. Facts show that the predecessor of the complainant had relinquished his right over the property as far as back in the year 1968. The property changed hands quite a few times before reaching the person on whose behalf the applicants were there on the property. No claim appears to have been raised by the complainant or her husband in the interregnum. It is only after the predecessor in the title of the person on whose behalf the applicants were on the property initiated proceedings to have the name of the predecessor of the complainant removed from the revenue record that the complainant/ her husband were made aware about the same and thereafter started revenue proceedings. Thus, it appears that from 1968 onwards the complainant or her predecessor did not have any right upon the property and could also not be stated to be in possession of the property. On the other hand, the complainant after the first order of Page 15 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 the Deputy Collector in her favour had sold the land thrice. Thus, the complainant could not claim the land as belonging to her or owned by her as narrated in the complaint. In this scenario the complainant could not in the considered opinion of this Court alleged an offence of Criminal trespass and consequently, the complaint clearly appears to be an attempt by the complainants to establish that they have possession over the land.
9. The Hon'ble Apex Court in case of State of Haryana Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 has inter alia laid down certain categories of cases by way of illustrations, wherein extraordinary power under Article-226 or inherent powers under Section - 482 of the Code of Criminal Procedure could be exercised by this Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice. Paragraph No. 102 of the said decision being the relevant, the same is reproduced herein below for benefit.
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the Page 16 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 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 formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a 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 instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the Page 17 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022 R/SCR.A/2974/2011 ORDER DATED: 04/02/2022 grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide 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."
10. In the considered opinion of this Court, illustration (5) and (7) as enumerated by the Hon'ble Supreme Court would aptly apply to the present issue. The complainant who had no semblance of right over the property and who could not even justify legal possession over the land alleging Criminal trespass in the year 2011 against applicants who were related to and labourers engaged by a person who had purchased the property by way of registered sale deeds of the year 2007. Furthermore the complainant having sold the land thrice in the interregnum i.e. after getting orders of revenue authorities for a brief period could not claim legal possession since the land had been sold by her. Thus, these facts would point to the absurd and inherently improbable nature of the allegations. Furthermore since it appears that the person through whom and under whose instructions the applicants were on the land, having resisted the complainant in revenue proceedings, in the considered opinion of this Court, more particularly, looking to the improbable nature of facts is maliciously instituted for wreaking vengeance on the said person who was also having registered sale deeds in his favour. Page 18 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022
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11. Having regard to the discussion, reasoning and conclusion arrived of herein above, in the considered opinion of this Court, the impugned complaint being C. R. I-42 of 2011 registered with the Coastal Police Station Mundra, District: Kutch, dated 20.07.2011, alleging offences punishable under Sections-143 and 447 of the Indian Penal Code, deserves to be interfered with and hence the same is quashed. Rule is made absolute to the above extent.
12. Direct service is permitted.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 19 of 19 Downloaded on : Sun Apr 24 11:52:46 IST 2022