Gujarat High Court
Himataji Kasturji Mali vs State Of Gujarat on 2 July, 2024
NEUTRAL CITATION
R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 12356 of 2021
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 12356 of 2021
With
CRIMINAL MISC.APPLICATION (FOR FIXING DATE OF HEARING) NO.
3 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 12356 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HIMATAJI KASTURJI MALI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ND NANAVATY, SR. ADVOCATE with MR HITESH N ACHARYA(2302)
for the Applicant(s) No. 1,2,3,4,5
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
MR BB NAIK, SR. ADVOCATE with MS AVANI PATELRULE SERVED for the
Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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NEUTRAL CITATION
R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024
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Date : 02/07/2024
ORAL JUDGMENT
[1.0] By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the petitioners - original accused Nos.1 and 3 to 6 have prayed to quash and set aside the FIR being I-CR No.34 of 2019 registered with Kanbha Police Station, Ahmedabad (Rural) for the offence punishable under Sections 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860 (for short "IPCP) and to quash all other consequential proceedings arising therefrom.
[2.0] It is the case of the petitioners that at the instance of respondent No.2, impugned FIR came to be filed in connection of the mutation Entry No.1321 dated 07.08.2002, which was made in revenue record stating that in connection of the land bearing Block No.243 (New Block No.400) of Mouje Bhuval, Taluka Daskroi, District Ahmedabad (Rural) (herinafter referred to as "disputed land"), which was running in the name of one Nathaji Jibhaji Vaghela wherein it was declared before accused No.7 - Talati cum Mantri that Nathaji Jibhaji Vaghela expired around 22 years ago and his heirs are Himtaji Nathaji, Chagaji Nathaji, Hemaji Nathaji and Ramaji Nathaji. Out of these heirs, Himtaji Nathaji had expired 12 years ago and name of his heirs viz. Fuliben Wd/o. Himtaji, Gangaram Himtaji, Shardaben Himtaji, Page 2 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Naranji Himtaji and Prakashji Himtaji are recorded in revenue record. Similarly, Chagaji Nathaji had expired around 9 years ago and name of his heirs i.e. Babuji Chagaji and Rohitbhai Chagaji are recorded in revenue record. Though Nathaji Jibhaji had no such heirs namely Himtaji Nathaji and infact actual name of Himtaji Nathaji is Himtaji Kasturji Mali and he is not dead and alive as on date. Himtaji Kasturji Mali who is actually heirs of Kasturji Mali and alive as on date, is wrongly shown as heirs of Nathaji Jibhaji and vide mutation entry No.1321, Himtaji Kasturji Mali who is alive as on date, is shown as expired around 12 years ago and name of his heirs i.e. Fuliben W/o. Himtaji Gangaram S/o. Himtaji, Sardaben D/ o. Himtaji Naranji S/o. Himtaji and Prakash S/o. Himtaji are recorded in revenue record so as to avail status of agriculturist in the State of Gujarat. Further, Himtaji Kasturji and his heirs got mutation Entry No.1321 posted in the revenue record in connivance with one Mr. M.B. Gadhvi - accused No.7 who was Talati cum Mantri of village Bhuval at that point of time. In this regard, complaint is filed at the instance of respondent No.2.
[3.0] Heard learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Hitesh Acharya Jani for the petitioners, learned APP Ms. H.K. Patel for respondent No.1 - State of Gujarat and learned Senior Advocate Mr. B.B. Naik assisted by learned advocate Ms. Page 3 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Avani Patel for respondent No.2 - original complainant.
[4.0] Learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Hitesh Acharya for the petitioners has submitted that the complaint is filed belatedly. He has submitted that though alleged incident took place in the year 2002 but the complaint is filed in the year 2019 and that too without any locus as the respondent No.2 - complainant has nothing to do with the disputed land and is not connected in any manner and he is not duped or not sustained any injury or loss due to the alleged act on the part of the petitioners. Even the allegations leveled in the impugned FIR do not prima facie disclose commission of any offence on the part of the present petitioners. The petitioners have not taken any undue advantage of the said forged document on the basis of which mutation entry was made in the revenue record and legal heirs having no objection and subsequently the alleged transaction is also reversed and in this regard appropriate entries being made in the revenue record and qua the said entry, revenue proceedings are pending before the Special Secretary, Revenue Department. Further, he has submitted that no any proceeding under Section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "Tenancy Act") is initiated by the State Government.
[4.1] Learned Senior Advocate has further submitted that Page 4 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined accused Nos.1 to 6 had relinquished their rights over the disputed land and in this regard also, mutation entry No.1327 was effected and certified on 22.12.2004 and sale transactions have taken place in the years 2003 and 2004. After the great delay of 18 years, complaint is filed by respondent No.2 though he is not in anyway connected with any of the aforesaid transactions or the disputed land. The present petitioner No.1 is brother of Gangaram Mali and the said Gangaram Mali (petitioner No.2) and one Prakashraj Jain were business partners for very long time and since the year 2016, due to dispute in partnership, various civil as well as criminal proceedings are going on between them. Further, respondent No.2 herein is employee of Prakashraj Jain and he is being used as a pawn in lodging the impugned FIR with ulterior motive and with a view to harass the petitioners. Further, no any offence under Section 467 or 465 of IPC is being committed as present petitioners have not forged any document and not hatched any conspiracy. Even after filing of charge-sheet no iota of evidence is found which can suggest that present petitioners have forged any document. Learned Senior Advocate has relied on the affidavit dated 23.04.2018 sworn by Vaghela Ramaji Nathaji as collected by the Investigating Officer during investigation alongwith pedigree wherein it is submitted that he has no objection qua Entry No.1321 and that Himtaji Nathaji is Page 5 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined his step brother and in the capacity of step brother his name is mentioned as legal heir and he has no objection. Hence, he has requested to allow the present petition and to quash and set aside the impugned FIR and the further proceedings thereto.
[5.0] Learned Senior Advocate Mr. B.B. Naik assisted by learned advocate Ms. Avani Patel appearing for respondent No.2 has vehemently opposed the present petition and submitted that the present petitioners are involved in the offence and present petitioners belong to Hindu Mali community from Rajasthan still however, with a view to avail the status of agriculturist in the State of Gujarat, they in connivance of each other and in collusion of accused No.7 - Talati cum Mantri, forged the documents under the pretext that Nathaji Jibhaji has expired though said Nathaji Jibhaji is alive with an intention to usurp the disputed land belonging to illiterate people claiming themselves to be legal heirs of Himtaji Kasturji as no such person ever existed and for that they have forged the family pedigree of original owner Nathaji Mali and wrongly availed the status of agriculturists and they they have entered into many transactions in the capacity of agriculturists. Further, investigation is completed and charge-sheet is filed and evidence is collected showing involvement of the present petitioners. Further, discharge application filed Page 6 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined by accused No.7 - Talati cum Mantri is also dismissed. Hence, this is not a case where powers under section 482 of the CrPC are required to be exercised. In support of his case, learned Senior Advocate Mr. Naik has relied on the decision of Hon'ble Supreme Court in the case of Neeharika Infrastructure vs. State of Maharashtra reported in 2021 SCC OnLine SC 315 as well as Shiv Prasad Semwal vs. State of Uttarakhand and Others reported in 2024 LiveLaw (SC) 251.
[5.1] So far as submission made by learned Counsel for the petitioners that respondent No.2 do not have any locus to file the impugned FIR is concerned, learned Senior Advocate Mr. Naik has submitted that everyone has a right to put criminal law into motion. Further, respondent No.2 herein neither connected nor employee of Prakashraj Jain or his family. In this regard, he has relied on the decision of Hon'ble Supreme Court in the case of A.R. Antulay vs. R.S. Nayak reported in AIR 1984 (SC) 684.
[5.2] So far as submissions made by learned Counsel for the petitioners as regards affidavit of Vaghela Ramaji and reversal of revenue entry is concerned, learned Senior Advocate Mr. Naik has submitted that son of the said person has disown the fact before the police and in the statement he has stated that his father has never Page 7 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined solemnized the second marriage and said Himtaji was the step brother of Nathaji. Hence, he has requested to dismiss the present petition.
[6.0] Learned APP appearing for respondent - State of Gujarat has adopted the submissions made by learned advocate for respondent No.2 and has submitted that present petition seeking quashing of FIR is not required to be entertained and hence, has requested to dismiss the present petition.
[7.0] I have given thoughtful consideration to the arguments canvassed by learned Counsel appearing for respective parties and gone through the impugned FIR as well as the averments made in the petition.
[8.0] At the outset, so far as issue of locus of the complainant is concerned, it is true that every citizen has a right to put in motion the criminal law. In this regard, learned Senior Advocate has relied on the decision in the case of A.R. Antulay (Supra) but in the case on hand, considering the allegations leveled in the impugned FIR filed by respondent No.2, he is neither connected in any manner with the disputed land nor is he legal heir of any party nor witness or party to any conveyance. In short, in any manner present respondent No.2 is not adversely affected as his direct interest is not involved or jeopardized his interest in any manner.
Page 8 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined [8.1] Learned Counsel for the petitioners has relied on the decision of Hon'ble Supreme Court in the case of A.R. Antulay (Supra) qua locus standi. Section 2(wa) of the CrPC defines term 'victim'. It is true that if offence is against the State and if State shields the culprit and if the society is adversely affected or interest of the society being jeopardized, in that event, citizen has a right to put criminal law into motion and it is the duty of the State that prosecution of serious offences is required to be undertaken in the name of State representing the people which would exclude any element of private vendetta or vengeance. Considering the aforesaid public policy in a penal statute, right is given to the third party also to set into motion criminal law however there should be some nexus qua cause of action or interest of party if offence is not adversely affecting the larger interest of society and against the State. The Hon'ble Apex Court in the case of Amanullah and Another vs. State of Bihar and Others reported in (2016)6 SCC 699 has explained the concept of 'locus standi' and principles also summarized. In paragraph Nos.19 and 20 of the said decision, it is observed thus:
"19. The term 'locus standi' is a Latin term, the general meaning of which is 'place of standing'. The Concise Oxford English Dictionary, 10th Edn., at page 834, defines the term 'locus standi' as the right or capacity to bring an action or to appear in a court. The traditional view of 'locus standi' has been that the person who is aggrieved or affected Page 9 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined has the standing before the court, i.e., to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to 'locus standi', allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves. Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in the CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bonafide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice.
20. In this regard, the Constitution Bench of this Court in the case of P.S.R. Sadhanantham case2 has elaborately dealt with the aforesaid fact situation. The relevant paras 13, 14 and 25 of which read thus: (SCC pp. 146-48 & 150-51) "13. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted "visa". It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty.
14. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of Page 10 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While "the criminal law should not be used as a weapon in personal vendettas between private individuals", as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression "standing" is necessary for Article 136 to further its mission. There are jurisdictions in which private individuals -- not the State alone -- may it statute criminal proceedings. The Law Reforms Commission (Australia) in its Discussion Paper No. 4 on "Access to Courts -- I Standing: Public Interest Suits' wrote:
'The general rule, at the present time, is that anyone may commence proceedings and prosecute in the Magistrate court. The argument for retention of that right arises at either end of the spectrum -- the great cases and the frequent petty cases. The great cases are those touching Government itself -- a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on Government funds; its officers will inevitably have personal links with government. They will be part of the 'establishment'. There may be cases where a decision not to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the courts.' Page 11 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Even the English System, as pointed by the Discussion Paper permits a private citizen to file an indictment. In our view the narrow limits set in vintage English Law, into the concept of person aggrieved and "standing" needs liberalisation in our democratic situation. In Dabholkar case this Court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards "standing" in the famous case of Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N'jie12, spoke thus: (AC p.634) '... the words "person aggrieved" are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him;' Prof. S.A. de Smith takes the same view:
'All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest -- the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.**"
Prof. H.W.R. Wade strikes a similar note:
'In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers.' In Dabholkar case10, one of us wrote in his separate opinion:(SCC p. 720), para 59) Page 12 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined '59. ...The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the Judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system.' This view is echoed by the Australian Law Reforms Commission.
* * * *
25. In India also, the criminal law envisages the State as a prosecutor. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898, the State was entitled to appeal to the High Court, and the complainant could do so only if granted special leave to appeal by the High Court. The right of appeal was not given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the States has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the prerequisite condition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The Law Commission of India gave anxious thought to this matter, and while noting Page 13 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the common law jurisprudence obtaining in England and other countries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law. But simultaneously the Law Commission also noted that if the right to appeal against acquittal was retained and extended to a complainant the law should logically cover also cases not instituted on complaint. It observed:
'58. ...Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, the limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person.' However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to appeal, in the case of private parties to a complainant. This is, as it were, a material indication of the policy of the law."
(emphasis supplied)"Page 14 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024
NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Hence, considering the aforesaid fact, competence of private party is distinguished from the State to invoke jurisdiction of Court. Herein, present respondent No.2 having no any nexus qua property under right, title or interest in the property or having no any cause of action arose to set criminal law into motion. Considering the aforesaid the authority relied on by learned Counsel for respondent No.2 on the case of A.R. Antulay (Supra) would not avail any assistance to respondent No.2.
[9.0] Now coming back to the second limb of argument of applicant, it is alleged in the complaint that forged pedigree was prepared and record is concocted with a view to avail status of agriculturists in the State of Gujarat and after availing such status of agriculturists, many land transactions being entered into by the petitioners but no any direct loss caused to the public at large and there is no any allegation qua the present petitioners that they have forged or concocted any document. Hence, how present petitioners are connected with the offence is nowhere mentioned. In the petition, a specific stand taken by the petitioners is that, respondent No.2 is employee of one Prakashraj Jain and is working in M/s. Real Strips Ltd. of Prakashraj Jain. Considering the partnership dispute between brother of petitioner No.1 and Prakashraj Jain, present Page 15 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined respondent No.2 is being used as a pawn for lodging of the impugned FIR. The said allegations remain uncontroverted and respondent No.2 has not filed any affidavit in reply or denied the said allegation.
[9.1] If we peruse the allegations made in the FIR, present petitioners are facing charge for the offence punishable under sections 465, 467, 48, 471 and 120(B) of the IPC. The main allegation against the present petitioners is that, they have forged the pedigree and concocted the documents to avail the status of agriculturists in the State of Gujarat. So far as offence of forgery is concerned, to make out an offence under section 464 of the IPC, prosecution has to prove or there should be some material which indicates that present petitioners / accused have made forged document and due to such document or part of document with intent to cause damage or injury to the public or any person or to support any claim or title. In this regard, section 463 of IPC which defines 'forgery' is required to considered which reads as under:
"463. Whoever makes any false document or false electronic record or part of a document or electronic record, 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 any express or implied contract, or with intent Page 16 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined to commit fraud or that fraud may be committed, commits forgery.
Section 464 of the IPC reads as follows:
"464. Making a false document.- A person is said to make a false document or false electronic record--
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 electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic 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, singed, 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 electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or Page 17 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined alter a document or an electronic record or to affix his electronic 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 mans signature of his own name may amount to forgery.
Explanation 2.--The making of a false document in the name of a fictious 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.
Section 463 of IPC defines the offence of 'forgery' while section 464 of IPC substantiates the same by providing an answer as to when a forged document can be said to have been made for the purpose of committing an offence of forgery under section 463 of the IPC. If we peruse the element of section and ingredients of section 464 of the IPC, prima facie, it appears that charge of forgery cannot be imposed or sustained against a person who is not the maker of document in question. Making the document is different than causing it to be made. Explanation 2 of section 464 of the IPC further clarifies for constituting the offence under section 464 of the IPC. It is imperative Page 18 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined that false document is made and accused person is maker of same otherwise accused person is not liable for the offence of forgery.
[9.2] In aforesaid settled preposition of Law, if uncontroverted allegations leveled in the complaint are examined, prima facie, it appears that the allegations qua forgery is not against the present petitioners. It appears whatever allegation is that they have made a false declaration before the authority and they themselves have claimed or impersonated themselves as legal heirs of Nathaji Jibhaji Vaghela stating that,though he was expired though he was alive and impersonated himself as legal heir and their name got entered in the revenue record as a legal heir and entry No.1321 came to be effected, which was certified. Subsequently, the entry was also reversed. In short, legal heir of late Shri Nathaji has not raised any grievance and never disputed the said fact. Now, the fact remains that forged pedigree was prepared but in the said pedigree which is enclosed alongwith charge- sheet paper on affidavit of Shree Vaghela Ramaji Nathaji dated 23.04.2018 wherein it is stated that in Entry No.1321, name of Himtaji Nathaji is shown, as he was his step brother and he does not have any objection to said entry and due to such entry he is not adversely affected in any manner and having no any objection and said fact Page 19 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined is declared on oath on 23.04.2018. While the impugned complaint is filed subsequently on 29.07.2019. There is no any evidence which indicates that present petitoners have forged any government document or put any entry in the revenue record and hence present petitioners have not forged any document or any valuable security. Even, the revenue authority has not initiated any proceeding qua violation of section 63 of the Bombay Tenancy Act. Subsequently before the police, Ramaji Vaghela has disown the said fact of affidavit but it is needless to say that the said statement been made before the police after lodging of the FIR while the affidavit was sworn earlier in April, 2018 before the Notary in earlier point of time.
[9.3] Further, at the instance of respondent No.2 -
complainant proceeding under Sections 84(C) and 63 of the Bombay Tenancy Act came to be initiated before the ALT & Mamlatdar, Daskroi Taluka, which is annexed with the petition at Annexure-K and said proceedings are pending before the revenue authority. The legal heirs and original owner of disputed land has neither filed any complaint nor raised any grievance against the said act. Subsequently, the entry is also reversed way back in the year 2004. Perusing the investigation papers also, there is no iota of evidence which suggests that present petitioners have made any forged document or valuable Page 20 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined security and they are maker of any forged document. Present petitioners have not forged any government record or any valuable security also. It is pertinent to note that accused No.7 - Talati cum Mantri had made the entry in question but he is not before this Court. If he has forged or made any false entry then it is on different footing. Even if for the sake of argument we accept that the petitioners have made false declaration claiming themselves to be the legal heirs of Shree Nathaji which is nothing but amounts to a false declaration and merely to make false declaration or statement would not amount to making forged document as per explanation 2 of section 464 of the IPC. In this regard, reference is also required to be made to the decision of this Court in the case of Motising Gambhirsing vs. The State reported in 1961 GLR 4812 as well as in the case of State of Gujarat vs. Motibhai Jethabhai Makwana reported in 1992 (1) GLR 764 wherein it is observed and held as under:
"Indian Penal Code, 1860 (XLV of 1860) - Secs. 465 & 511 - Where there is no attempt to show that a document has been prepared by a person other than the one who has prepared it, there is no offence of forgery - Once the accused has done on done an act whic if completed would be an offence, but by some agency beyond the control of the accused, the offence is not complete, there is the offence of attempting to commit an offence."Page 21 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024
NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Further, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009)8 SCC 751, wherein the Hon'ble Supreme Court in paragraph Nos.14 to 17 has observed and held as under:
"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 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 Page 22 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined `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. There is a fundamental difference between a 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 Page 23 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined not made or executed. 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 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."
In view of above conspectus facts of case and settled proposition of law, as discussed in the earlier part, even if uncontroverted allegations leveled in the impugned FIR are accepted as it is then also, neither any case is made out that present petitioners have forged any document nor present petitioners have any interest in the disputed land. Herein, no one is aggrieved party as the legal heirs of the original owner of the disputed land have no any objection and respondent No.2 has nothing to do with the offence. If any false assertion being made in any pedigree before any authority, it would not amount to creating any false document. Thus, no offence of forgery is made out.
[9.4] As discussed above, prima facie, no any offence of forgery being made out, question of using such forged document as a genuine one does not arise. Hence, this Court is of considered view that no offence is made out as alledged in the Complaint . Hence, this is a fit case to Page 24 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined exercise power under section 482 of the CrPC as the case satisfy the test and falls within the parameters laid down by Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335.
[9.5] Herein, prima facie, it appears that the allegations made in the impugned FIR does not disclose commission of any offence of forgery and material collected during the investigation does not support the same and disclose commission of offence of forgery. The complaint is filed at the instance of third party who has nothing to do and who is not connected in any manner with the disputed land and it appears that the present litigation is filed with ulterior motive to settle score. Even, the government has not taken or initiated any further proceeding under section 84(C) of the Bombay Tenancy Act.
[10.0] Learned Counsel for respondent No.2 has relied on the case of Neeharika Infrastructure (Supra). I have given thoughtful consideration to the said pronouncement of the Apex Court wherein Apex Court has been pleased to lay down certain parameters but considering the peculiar facts of the case on hand and as no case is made out to continue such proceedings, reference is required to be made to the decision of the Hon'ble Supreme Page 25 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined Court in the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P. reported in AIR 2004 SC 132, wherein it has been observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
In view of the above, the decision in the case of Neeharika Infrastructure (Supra) relied upon by the learned Counsel for respondent No.2 would not be of any help to respondent No.2. It is true that while exercising powers under Section 482 of the CrPC, High Court should exercise same sparingly yet High Court must not hesitate in quashing such criminal proceedings which are essentially of civil nature and gross abuse of process of law initiated with ultierior motive. In this regard reference is also required to be made to the decision in the case of Naresh Kumar vs. State of Haryana reported in (2024) 3 SCC 573.
[11.0] Further, the impugned FIR is filed after a huge delay of more than 17 years, which is totally unexplained and Page 26 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined inordinate delay in filing of FIR is one of the criteria which is required to be considered while considering the quashing petition. It is true that delay in lodging of the FIR is not a ground for quashing of proceedings but in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. In this regard, reference is required to be made to the decision in the case of Mohammad Wajid and Anr. v. State of U.P. and Ors. reported in 2023 INSC 683. In this regard, reference is also required to be made to the decision of the Hon'ble Supreme Court in the case of Deepak Kumar Shrivas vs. State of Chattisgarh reported in (2024) 3 SCC 601. It is also appropriate to refer to the decision in the case of Kishan Singh (Dead) Through Lrs vs. Gurpal Singh and Others reported in (2010) 8 SCC 775 wherein the Hon'ble Supreme Court in paragraph No.22 has observed thus:
Page 27 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined "22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."
[12.0] Further, it is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be Page 28 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 and in case of Bhajan Lal (Supra), the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"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 Art. 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 process of any court or otherwise to secure the ends of justice, though it may not be Page 29 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined 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 :
(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 grievance of the aggrieved party.
(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."
[12.1] Considering the aforesaid proposition in consonance with the facts of the case on hand, to continue such proceeding against the present petitioners would be abuse of process of law and hence, present is a fit case to exercise powers under Section 482 of the Cr.P.C..
[13.0] In wake of aforesaid discussion, present petition is Page 30 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024 NEUTRAL CITATION R/CR.MA/12356/2021 JUDGMENT DATED: 02/07/2024 undefined allowed. Impugned FIR being I-CR No.34 of 2019 registered with Kanbha Police Station, Ahmedabad (Rural) alongwith all its consequential proceedings is hereby quashed and set aside qua the present petitioners only. Rule is made absolute to the aforesaid extent.
In view of disposal of Criminal Misc. Application No.12356 of 2021, Criminal Misc. Application Nos.1 of 2022 and 3 of 2022 in Criminal Misc. Application No.12356 of 2021 would not survive and are disposed of accordingly.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 31 of 31 Downloaded on : Tue Jul 02 21:27:50 IST 2024