Gujarat High Court
Mohmadhanif Abdulhamid Shaikh vs State Of Gujarat on 24 July, 2024
NEUTRAL CITATION
R/CR.MA/14028/2011 ORDER DATED: 24/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14028 of 2011
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2011
In R/CRIMINAL MISC.APPLICATION NO. 14028 of 2011
==========================================================
MOHMADHANIF ABDULHAMID SHAIKH & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1,2,3,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/07/2024
ORAL ORDER
[1.0] RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 - State of Gujarat.
[2.0] By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the petitioners have prayed to quash and set aside the FIR being I-CR No.70 of 2011 registered with Umargaon Police Station, District Valsad for the offence punishable under Sections 420, 465, 466, 467, 468, 471, 474 and 114 of the Indian Penal Code, 1860 (for short "IPC) and to quash all other consequential proceedings arising therefrom.
Page 1 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined [3.0] At the outset, it is submitted that petitioner Nos.1 and 2 have expired during the pendency of the present petition and hence, present petition stands abated qua petitioner Nos.1 and 2 and is being considered for petitioner Nos.3 to 5 only.
[4.0] It is the case of the petitioners that the petitioners have been arraigned as accused Nos.3, 4, 5, 7 and 8 respectively in the complaint whereas Abdulhamid who is the father of petitioner Nos.1, 2 and 3 who has been arraigned as accused No.1 has expired on 14.12.1994. It is further the case of the petitioners that accused No.2 viz. Ezazahmed Shaikh is the adopted son of accused No.1 Abdulhamid. Further, when accused No.2 Ezaz separated from the family, accused No.1 decided to give land being Survey No.93 admeasuring 3 Acres and 20 Gunthas situated in village Bhilad to accused No.2 for which he made an application dated 11.01.1987 to the Talati Cum Mantri to enter name of accused No.2 Ezaz in the revenue records of the said land. Pursuant to the said application, Talati cum Mantri prepared a statement petitioner Nos.1 to 3 were made to sign the same under the pretext that they were only giving no objection to the name of accused No.2 Ezaz being entered in the revenue record. Thereafter, a panchnama was prepared in presence of petitioner Nos.4 and 5 who supported the say of accused No.1 and confirmed that accused No.2 is being given share by accused No.1. Thereafter, Talati cum Mantri made a temporary entry No.1664 in the revenue records which came to be certified on 12.03.1987. It is further the case that the petitioners have not Page 2 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined committed any offence of cheating, forgery of valuable securities, Will etc. as alleged. That the impugned complaint is filed after 24 years of making the said entry in the revenue records.
[5.0] At the outset, so far as issue of locus of applicant of Criminal Misc. Application No.15797/2011 is concerned, it is true that every citizen has a right to put in motion the criminal law. Considering the averments made in CR.MA No.15797/2011, it appears that applicant - ABHEY NITIN AREKAR had made written complaint to the Mamlatdar and as per his say the impugned FIR is filed by the Mamlatdar on the basis of said application. However, in view of the findings recorded hereinbelow it is to be noted that, the dispute whether the present petitioners had entered their names in the revenue records of the land by creating forged documents is answered in negative and therefore, the applicant of CR.MA No.15797/2011 as such has no locus as he had made the written application to the Mamlatdar on 28.09.2010 and since thereafter he has never turned up and after filing of the impugned complaint which was filed in the year 2011 i.e. after 24 years of making the disputed mutation entry, he has filed the application being CR.MA No.15797/2011 requesting to implead him as a party respondent in main petition. In short, in any manner, said Abhay Nitin Arekar is not adversely affected as his direct interest is not involved or jeopardized his interest in any manner. In this regard, reference is required to be made to the decision of Hon'ble Supreme Court in the case of Page 3 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined A.R. Antulay vs. R.S. Nayak reported in AIR 1984 (SC) 684. Further, 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 No.19 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 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 Page 4 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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."
Hence, considering the aforesaid fact, competence of private party is distinguished from the State to invoke jurisdiction of Court.
[6.0] Heard learned Advocate Mr. Zubin Bharda for the petitioners and learned APP Ms. Divyangna Jhala for respondent No.1 - State of Gujarat.
[7.0] Going through the record it appears that it is the case of the petitioners that present petitioners have not forged any document. The father of petitioner has made a declaration before the Talati that Ezaz is his son and prepared the pedigree certificate and Ezaz has taken the benefit of being farmer and purchased the agricultural land. In the said pedigree dated 12.01.2004, present petitioner being son of Abdul Hamid Jafar, he has declared before the Talati and pursuant to the said declaration, pedigree was prepared wherein present petitioner had declared that Ezaz is their brother and they do not have any Page 5 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined objection if his name is entered in the revenue record. The sum and substance of the complaint is that based on said forged declaration before the Talati, pedigree is prepared and pursuant to that, Ezaz has taken the benefit of being agriculturist. Present petitioners have not signed any document and have not forged any document. Merely they have stated that Ezaz is their brother and they are not having any objection. Except this, no role attributed to the present petitioners. In view of the above, there was no intention since inception and even otherwise father of the petitioner viz. Abdul Hamid Jafar is expired and even the beneficiary of the said declaration is Ezaz Ahmed Jafar who has also expired. Even, subsequently revenue proceedings came to be initiated wherein property is restored once again in the name of father of the present petitioners. Further, it reveals fro the record that Ezaz was step son of Abdul Hamid Jafar as, as per the Shariyat Law marriage of mother of Ezaz was solemnized with the father of present petitioners and subsequently the mutation entry No.1664 dated 12.03.1987 is also canceled and thus, today, no any family arrangement or pursuant to that some alleged forged pedigree. No any further proceeding or right of properties being created. The alleged entry was made in the year 1987 while complaint is filed belatedly in the year 2011 and complaint itself is filed in connection of the offence that took place in February, 1987 on 26.09.2011 at the instance of Mamlatdar as there is no any loss caused to the government and no any valuable security being forged by the present petitioners.
Page 6 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined [7.1] If we peruse the allegations made in the FIR, present petitioners are facing charge for the offence punishable under sections 420, 465, 466, 467, 468, 471, 474 and 114 of the IPC. 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 forged any 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 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;Page 7 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024
NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined
(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 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 Page 8 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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 that false document is made and accused person is maker of same otherwise accused person is not liable for the offence of forgery.
[7.2] 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. There is no any evidence which indicates that present petitioners 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. Subsequently, the mutation entry No.1664 dated 12.03.1987 is also canceled and thus, today, no any family arrangement or pursuant to that some alleged forged pedigree. Perusing the investigation papers also, there is no iota of evidence which suggests that present petitioners have made any forged document or valuable security and they are maker of any forged document. Present petitioners have not forged any government record or any valuable security also. Even if for the sake of argument we accept that the petitioners have made false declaration which is nothing but amounts to a false declaration Page 9 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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."
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 Page 10 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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 `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 Page 11 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined knows that it was 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. Thus, no offence of forgery is made out.
[7.3] 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 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.
[7.4] 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 Page 12 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined support the same and disclose commission of offence of forgery.
[8.0] Further, the impugned FIR is filed after a huge delay of more than 24 years, which is totally unexplained and 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:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay.Page 13 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024
NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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."
[9.0] 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 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 Page 14 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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 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 Page 15 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024 NEUTRAL CITATION R/CR.MA/14028/2011 ORDER DATED: 24/07/2024 undefined 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."
[9.1] 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..
[10.0] In wake of aforesaid discussion, present petition is allowed. Impugned FIR being I-CR No.70 of 2011 registered with Umargaon Police Station, District Valsad alongwith all its consequential proceedings is hereby quashed and set aside qua the present petitioner Nos.3, 4 and 5 only. Rule is made absolute to the aforesaid extent.
In view of discussion in paragraph No.[5.0] above, Criminal Misc. Application No.15797/2011 stands dismissed.
(HASMUKH D. SUTHAR, J.) Ajay Page 16 of 16 Downloaded on : Sat Jul 27 00:24:10 IST 2024