Gujarat High Court
Karmanbhai Revabhai Bharwad (Decd.) vs State Of Gujarat on 21 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8734 of 2019
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 ? Yes
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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KARMANBHAI REVABHAI BHARWAD (decd.)
Versus
STATE OF GUJARAT
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Appearance:
MR CB DASTOOR(238) for the Applicant(s) No. 1,1.1
for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/10/2021
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice on behalf of respondent State. By consent of both the sides, the matter is taken up for final hearing today.
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2. The original petitioner - Karmanbhai Revabhai Bharwad had approached this Court under the provisions of Section 482 Cr.P.C. with a prayer to take immediate action against the P.S.I., Tarapur Police Station through respondent no.2 - District Superintendent of Police in the form of departmental inquiry for the abuse of process of law and misusing the power and illegally confining/detaining the petitioner and his family members in the police lockup/custody for more than 24 hours; thus with further prayer to consider the said action of P.S.I. Tarapur to be illegal, arbitrary and violative of Articles 14, 19 and 21 of the Constitution of India.
2.1. Vide amendment dated 12.10.2021, it was further prayed to quash and set aside the FIR being C.R. No.II/72/2019 registered at Tarapur Police Station, District Anand for the offences punishable under Sections 186 and 114 of IPC, dated 08.09.2019.
2.3. After the death of the original petitioner his son Vijay Karamanbhai Bharvad by an order dated 19.08.2021 in Criminal Misc. Application No.1 of 2019 has placed himself as petitioner in the matter.
3. The petitioner challenges the inaction on the part of the respondent nos.2 and 3 for not deciding his application dated 23.08.2019 and challenges the action of respondent no.3 - P.S.I. Tarapur Police Station directing Page 2 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 and compelling the petitioner to hand over the vacant possession of the land on which the petitioner claims his ownership submitting that Civil Suit No.128 of 2013 was filed before the Principal Civil Judge, Tarapur, District - Anand and also stating that the Regular Civil Appeal is pending before the learned District Court.
3.1 It is stated that in Civil Suit No.128 of 2013, the petitioner had prayed for cancellation of the sale deed dated 17.06.2004 as was on the basis of misrepresentation, cheating, forgery and taking undue advantage of the illiteracy of the petitioner, as being a poor farmer he was in need of advance finance, the agricultural land in question was put under mortgage. It is alleged that instead of executing the mortgage deed, a sale deed was registered, corresponding Mutation Entry in the revenue record, was sought to be served thus the fact came to the knowledge of the petitioner; thereby raising his objection and therefore, had filed Civil Suit for cancellation of the registered sale-deed. The defendants of the Suit had filed an application under Order 7 Rule 11 C.P.C. at Exhibit-51 before the learned Principal Civil Judge, Tarapur which came to be allowed rejecting the Suit on 16.08.2018.
3.2 It is stated that aggrieved by the said order, petitioner had filed Regular Civil Appeal with delay condonation application being Misc. Civil Application Page 3 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 No.133/2019 before the learned Principal District Court at Anand and a notice was issued to the respondents in the matter making it returnable on 13.09.2019.
3.3 It is contended by the petitioner that in spite of knowledge of pendency of the delay condonation application, the defendants of the Suit had tried to illegally take the possession of the land from the petitioner and therefore an application was moved on 23.08.2019 to the respondent nos.2 and 3 police authorities, it is alleged that without following the due process of law a case came to be registered against the original petitioner and his brother under Sections 186 and 114 of IPC. They were arrested and then released on 09.09.2019.
4. Mr. Dastoor, learned advocate for the petitioner vehemently contended that the police has no business to interfere in the proceedings of the Court and ought to have given consideration to the application dated 23.08.2019. He submits that in spite of receiving the application which was in the form of Pre-empt Caveatory Plea, the police high handedly in connivance with the defendants of the Civil Suit No.128 of 2013, filed impugned FIR and had tried to take law into their hands.
4.1 Mr. Dastoor stated that in spite of the application dated 23.08.2019, detailing about the Civil Page 4 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 Suit proceedings and having knowledge of the Appeal before the Deputy Collector, Petlad the police provided 'bandobast' to Dilipsinh Malubhai Davi for entering into Survey No.488, the subject property of the Suit. Mr. Dastoor submits that such police 'bandobast' was not under any order of Civil Court, the Police on its own volition had provided the police 'bandobast' and when the petitioner had resisted such an act, the impugned FIR came to be filed and the original petitioner, his brother and the son of the original petitioner were taken in police custody and an FIR under Sections 186 and 114 of IPC was registered by the police, which Mr. Dastoor submitted that, is hit by Section 155(2) read with Section 195(1)(a)(i) of Cr.P.C. He submits that the police has no authority to investigate non-cognizable offence without complaint in writing before the Magistrate under whose order the complaint can be lodged.
4.2 Mr. Dastoor further submitted that respondent no.3 has misused his power by interfering in the Civil disputes without obtaining any order from the competent Court.
4.3 In support of his submissions, Mr. Dastoor has relied upon the following judgments: (1) Smt. Nirmalaben Arvindbhai Itwala Vs. Kalavatiben natvarlal Sidhwawala, reported in 1997 (2) G.L.H. 349 (ii) Saloni Arora Vs. State (Govt. Of NCT of Page 5 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 Delhi), reported in 2017 (0) AIJEL-SC 59615 (iii) Keshav Lal Thakur Vs. State of Bihar, reported in (1996) 11 Supreme Court Cases 557 (iv) Sudalaimadam Vs. State, reported in 1985 CrLJ 1310
(v) J. Lakshmi @ Lakshmamma Vs. Commissioner of Police, reported in 2004 LawSuit (AP) 30 (vi) T.V. Sadananda Bai Vs. C.M. Ravi, reported in 2008 LawSuit (KER) 86 (vii) George Mirante Vs. State of Kerala, reported in 1989 Law Suit (Ker) 470 (viii) B.Lakshmi Kanthamma Vs. Superintendent Of Police, Chitoor, reported in 1996 (0) AIJ-AP 430815
(ix) S.Masthan Saheb Vs. P.S.R. Anjaneyulu, reported in 2002 (0) AIJ-AP 407340 (x) Pratipati Narasimha Rao Vs. S.H.O. Krishna District And Ors., reported in 2017 (2) ALT (Cri) 397.
5. Learned APP, Mr. Pranav Trivedi submitted that Dilipsinh Malubhai Davi had given an application on 27.08.2019, which was received by the D.S.P., Anand on 28.08.2019 who had asked for police protection on Revenue Survey No.488 and in view of the application a positive opinion was given from the office of the Superintendent, for police protection on 06.09.2019 which was communicated by the office of Superintendent Anand and on the private expense, police protection was provided on the land in question and the same order was on the opinion of the in-charge police inspector, Tarapur Police Station.
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6. The admitted fact is that the Civil Suit No.128 of 2013 was filed before the Principal Civil Judge, Tarapur, Anand. The Suit came to be rejected on an application under Order 7 Rule 11. The original petitioner had informed the police on 23.08.2019 of the Suit and the proposed action of the defendants of the Suit, to move an application for adopting illegal means of usurping the agricultural land.
6.1 On perusal of the copy of the complaint, it appears that the petitioner specifically informed the police that there was no order of handing over the possession of the land to the defendants of the Suit. The documents of requisition given by in-charge police inspector Tarapur Police Station, the opinion of the office of the Superintendent dated 06.09.2019 and the copy of the application of Dilipsinh Malubhai Davi dated 27.08.2019 is produced by learned APP for perusal of this Court.
6.2 The F.I.R. impugned is filed under Sections 186 and 114 of IPC by A.S.I. Jaydip Sinh Jorubha, Buckle No.0822, in-charge police sub-inspector, Tarapur Police Station, District-Anand on the ground that the police was on private 'bandobast' on Survey No.488, where Dilipsinh Davi was planting crops and during that process Vijaybhai Karmanbhai Varwad, Karmanbhai Ravabhai Page 7 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 Varwad and Chhelabhai Ravabhai Varwad had come to the place and they were instigating the labourers not to go into the land for sowing purpose and at that time accused were informed that the Police Superintendent, Anand had given 'bandobast' on the private expense of Dilipsinh Davi on the land. At that time, the accused claimed the land to be of their ownership and had stated that they would not permit any sowing the crop on the land and since they threatened that they would not allow any agricultural process and would not even move out of the land, the police found the accused to be creating hinderance in their public duty.
7. In case of Smt. Nirmalaben Arvindbhai Itwala Vs. Kalavatiben natvarlal Sidhwawala (supra), this Court referring to the provisions of Section 195 Cr.P.C. has observed that the Court is precluded from taking cognizance for the offences mentioned in Section 195(1) of the Cr.P.C. It has been held that even if the charge- sheet is filed after investigation by the Police in such offences, the Court cannot take the cognizance of the offences in view of the embargo on the power of the Court to take cognizance; and it is also a priori that the police too cannot take cognizance of the F.I.R. observing that the filing of the charge-sheet would remain only a piece of paper on which no action can be taken by the Court.
Page 8 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 7.1 In Saloni Arora Vs. State (Govt. Of NCT of Delhi) (supra), the Hon'ble Supreme Court of India had held that it is mandatory to follow procedure prescribed under Section 195 Cr.P.C. and the action taken by the prosecution against referred appellant in relation to the offence under Section 182 IPC was rendered ab initio against law.
7.2 In case of Sudalaimadam Vs. State (supra), it has been observed in para-3 as under:
"The offence under Section 186, I.P.C. is voluntary obstruction of any public servant in the discharge of his public functions. Under Section 195(l)(a)(i) of the Crl. P.C, no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the I.P.C., except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is, therefore, urged by the learned Counsel for the petitioners that inasmuch as V. V. Sundararajan, the Deputy Tahsildar, Check Post, who is said to have been obstructed in the discharge of his public function, has not given the complaint before the court, the prosecution must Page 9 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 fail. The contention, I am afraid, has to be accepted for, Section 195(l)(a)(i), Cri. P.C. is a total bar to the cognizance of any offence under Section 186, I.P.C. by a Court unless the complaint is given by the public servant concerned or any other public servant to whom he is administratively subordinate.
7.3 In the case of J. Lakshmi @ Lakshmamma Vs. Commissioner of Police (supra), the High Court of Andhra Pradesh, while referring the observations in Writ Petition No.12737 of 2003 decided on 21.11.2003, regarding the power of police to interfere in civil disputes and coerce people to compromise, summarized the legal position as under:
"The Supreme Court has repeatedly held that when the dispute is purely of civil nature, the jurisdiction under Art. 226 of the Constitution cannot be exercised. The Supreme Court also repeatedly laid down that when the dispute between the two citizens is of civil nature and no crime is registered, police have no jurisdiction to interfere in the civil dispute. Further, when there is a civil litigation either before the court of law or before the tribunal, the police have no jurisdiction Page 10 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 to interfere in the civil disputes.
Further, when there is a civil litigation either before a court of law or before a tribunal, the police cannot interfere and even if a complaint is made in relation to such dispute pending in a civil court, the citizens have to be advised to resolve the dispute through a duly constituted court of law.
In the scheme of the Constitution of India, the duty to resolve civil disputes is entrusted to judiciary. Police have no such power. Any interference by police in a pending civil dispute or a potential civil dispute between two citizens or two groups of citizens is not within the province of the police.
Furthermore, if a cognizable offence is reported to the police, it is the duty of the police to register the crime under Section 154 of the Code of Criminal Procedure, 1973 (Cr. P. C.) and take up investigation immediately. In a given case, even if a civil dispute, to say a land dispute, is pending before a civil court and if the quarrel between the two warring parties has a potential of resulting in a law and order problem posing threat to the society at large, the police can always take up the case only Page 11 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 after registering the crime under Section 154 Cr.P.C. Without registering the crime and without any reason the police cannot interfere."
7.4 In case of T.V. Sadananda Bai Vs. C.M. Ravi (supra), the Division Bench of High Court of Kerala has observed about the role of the police in civil disputes while referring the case of George Mirante Vs. State of Kerala (supra), and has observed in para-7 as under:
"In matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this court to interfere under Art.226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts on which the parties should approach those courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose.Page 12 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022
R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognizable offences, and to preserve law and order. It will be totally against the rule of law, if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated to seek their enforcement by the civil court itself."
8. Admittedly, the police in the present matter was having knowledge of the civil disputes between the parties concerned. The petitioner through his application dated 23.08.2019 had apprised the police of all the facts of the disputed agricultural land. The petitioner had informed the police of his apprehension from the side of the defendants of the Suit, to make false application claiming any proceedings, which the petitioner had informed would be considered as illegal, on the ground that no order was passed by the Civil Court qua handing Page 13 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 over the possession of the disputed land. The petitioner had also informed of his intention to file an Appeal before the appellate Court. The said facts also get fortified by the report of the in-charge police inspector, Tarapur Police Station dated 05.09.2019. The pendency of civil disputes was brought to the knowledge of the Superintendent of Police. In spite of that fact, a positive opinion was given for providing police 'bandobast' on the disputed agriculture land. The petitioners were within their rights to dispute the process of the police on the alleged date of incident. There was no cause for filing an F.I.R. and arresting the accused, as alleged in the impugned F.I.R. The police have no authority or statutory power to meddle in civil disputes or to enforce the interim or final orders of the civil Court. The dispute as to whether an interim or final order of a civil Court is violated is itself a civil dispute, which has to be adjudicated by the competent Court and remedial action has to be taken by that Court. During that process, the Court has the power under section 151 of the Code of Civil Procedure to address the police to provide assistance to the aggrieved. If the police are acknowledged of power to decide whether the order of the Civil Court is violated and render assistance, based on the finding entered by them to the applicant, the same shall have disastrous consequences on the administration of justice in the country.
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9. Section 195 Cr.P.C. is a sufficient protection provided, which are in the mandatory form and non- compliance of it would vitiate the prosecution. Sub- section (1)(a)(i) of Section 195 Cr.P.C. provides that the offence which are punishable under Sections 172 to 188 of the IPC would be taken cognizance by the Court only on a complaint in writing to that Court or by such officer of the Court, as that Court may authorize in writing in that behalf or such other Court to which that Court is subordinate; So the law provides for a private complaint in writing before the Court for the Court to take cognizance of the matter; filing of F.I.R. by the police before the Police Station is bad in law.
9.1 The Hon'ble Supreme Court while dealing with the provisions of Section 195 Cr.P.C. in Saloni Arora Vs. State (Govt. Of NCT of Delhi) (supra) referring to the case of Daulat Ram Vs. State of Punjab reported in AIR 1962 SC 1206, has observed in para-11 as under:
"11. It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:
There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 Page 15 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar's complaint in writing is, therefore, without jurisdiction ab initio."
(Emphasis supplied) 9.2 Thus, in accordance to the provision of Section 195 Cr.P.C. read with Section 155(2) Cr.P.C., the complaint referred in Section 195 Cr.P.C. is a complaint to the Court and not complaint to the police and Section 195 Cr.P.C. requires that complainant before the Court and not to any officer concerned.
Page 16 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 9.3 Here in this case, the F.I.R. impugned is lodged by A.S.I. Jaydip Sinh Jorubha before police sub-inspector, Khambhat City Police Station, Kamp Tarapur Police Station. Any complaint under Section 186 read with Section 114 of PIC get hit by the provisions of Section 195 Cr.P.C., as the said section contemplates a complaint before the Court and not before the police.
10. Mr. Dastoor, learned advocate, has vehemently hinted upon the high handedness of the police in civil disputes. He stated that this Court should deprecate such actions of the police so that henceforth the police would restrain themselves in private civil disputes of the parties. This Court does not want to go into the merits of any civil disputes, lest it would affect the pending proceedings before the competent Court. Suffice it is to say that the observation made hitherto above is for the police to consider that when the disputes are between two citizens in civil nature, no crime is required to be registered and more specifically when the civil litigations are before the Court of law or before any tribunals, the police have no jurisdiction to interfere in the civil disputes.
11. In view of the above observations and reasonings, petition is allowed. The FIR being C.R. No.II/ 72/2019 registered at Tarapur Police Station, District Anand, Charge-sheet, if any, and the proceedings Page 17 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022 R/SCR.A/8734/2019 JUDGMENT DATED: 21/10/2021 initiated in pursuant thereto are quashed and set aside. Rule is made absolute. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 18 of 18 Downloaded on : Mon Jan 17 01:32:59 IST 2022