Gujarat High Court
Vaniya Dilipkumar Hemabhai vs State Of Gujarat on 23 January, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/SCR.A/7719/2022 ORDER DATED: 23/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7719 of 2022
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VANIYA DILIPKUMAR HEMABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR MAKBUL I MANSURI(2694) for the Applicant(s) No. 1
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/01/2023
ORAL ORDER
1. By way of the present application, the applicant herein is aggrieved by the impugned order dated 05.12.2019 passed in Criminal Revision Application No. 18 of 2018 passed by the Additional Sessions Judge, Patan.
2. Mr. Makbul I. Mansuri, learned advocate appearing for the applicant submitted that the applicant herein is the original accused in Criminal Case No. 1507 of 2016, and the applicant herein is also the applicant in Criminal Revision Application No. 18 of 2018.
3. Briefly stated, it is alleged in Criminal Case No. 1507 of 2016 by the complainant that in the year 1994-1995, the Page 1 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined Government of India had initiated a scheme for providing land to landless farm labourers. In the said scheme, 20 persons who were not eligible also made an application by providing false and / or concocted documents including pedigree, which was affirmed by Talati and Sarpanch of Samoda Gram Panchayat. Thereafter, in the year 1999, the Government of India passed an order and restricted the said scheme for only those landless farm labourers, who are below poverty line. After 10 years i.e. in the year 2009, when the regular Talati-cum-Mantri was on leave, at that point of time, the applicant was in-charge Talati-cum-Mantri of Samoda Gram Panchayat and at the said point of time, despite the plots being cancelled, it is alleged that one person made an application to the applicant herein for recording of her name. The applicant herein had recorded the name of said person vide order dated 14.12.2009 in the village form No.2 - permanent yield record.
4. In view of above, impugned F.I.R. came to be filed being I-C.R. No. 42 of 2016 for the offences punishable under Sections 465, 467, 468, 471, 420 and 120(B) of the Indian Penal Code, 1860 registered with Siddhpur Police Station. The said F.I.R. came to be culminated into charge-sheet and Criminal Case No. 1507 of 2016 came to be registered before the Chief Judicial Magistrate, Siddhpur.
5. Mr. Mansuri, learned advocate appearing for the applicant submitted that the alleged document in question, by which the applicant herein recorded the names of the alleged Page 2 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined candidates in Village Form No. 2, on the basis of the list sanctioned by the Taluka Development Officer. It is specifically submitted by Mr. Mansuri, learned advocate that, the applicant was acting in-charge Talati-cum-Mantri, at that point of time, one Rabari Jeetaben Ishwarbhai made an application for recording her name in Village Form No.2 - permanent yield record. It is also submitted that Sarpanch did not make such endorsement, and therefore, the applicant verified the same from the list dated 31.03.2009 prepared by Talati-cum-Mantri and after verification from the said list and believing the same to be just and proper, recorded the name of Rabari Jeetaben Ishwarbhai, in course of his duty. The applicant also recorded the names of the other persons from the said list in Village Form No. 2, for permanent yield record in line of his duties.
6. It is submitted by Mr. Mansuri, learned advocate that the applicant being Talati-cum-Mantri was not aware of any such Noting that the said plots are cancelled and no permission be granted without due diligence.
7. Per contra, Ms. Maithili D. Mehta, learned Additional Public Prosecutor appearing for the respondent- State has disputed the submissions advanced by Mr. Mansuri, learned advocate appearing for the applicant. Ms. Mehta, learned APP has produced on record the communication dated 27.11.2019, which is also relied upon by the applicant and submitted that, it addressed to the Sarpanch, wherein, there is a Note, the Note Page 3 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined which is disputed by the applicant herein, reads thus:
"Note: Since the said plots have been cancelled, further proceeding shall be made after verification with respect to the said matter at the Taluka.
Sd/- (illegible) Sarpanch Samoda Gram Panchayat Ta. Siddhpur"
8. Heard Mr. Makbul I. Manusri, learned advocate appearing for the applicant and Ms. Maithili D. Mehta, learned Additional Public Prosecutor appearing for the respondent- State.
9. The Additional Chief Judicial Magistrate, Siddhpur passed an order dated 10.01.2018, whereby, rejected the application for discharge of the applicant below Exh.8. The relevant para of the said order reads thus:
"(5) Thus, according to the above facts as well as according to the complaint of the complainant, the accused no.16 has not kept any accuracy during his duty which he supposed to. As stated by the accused, the Sarpanch has made the endorsement afterwards, but as per the facts of the complaint, the allotment of the plot was canceled in 1999, while the present accused has recorded it in the yield register in the year 2009. Thus, in view of the facts of the complaint, if the accused is acquitted without conducting a trial, the facts of the entire prosecution which are sequentially connected and the criminal conspiracy described by the prosecution may adversely effect to the evidence of the facts.
Moreover, the offense registered against the present accused is a serious one. If recording of the evidence is not started against accused, the prosecution may suffer a lot in proving the facts of the prosecution. Thus the facts of the present offense can only be decided at the end of the trial. Therefore, it cannot be assumed that the accused is completely innocent on the basis of the present facts alone. Because, looking at the record produced by Page 4 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined the prosecution, prima facie the accused no.16 appears to be committing an offense and when such an offense is of serious nature, it is not considered fair to discharge the accused at the present stage, therefore, the following order is passed in the present application.
ORDER The present application at Exhibit-08 is set aside. Order is passed to further continue the trial against accused No.16 Order pronounced in the open Court on this 10th of January 2018."
10. The Court below while declining the application / rejecting the application seeking discharge, in order dated 05.12.2019, the Additional Sessions Judge, Patan in Criminal Revision Application No. 18 of 2018 below Exh.11 held thus:
"(10) Thus, the findings recorded by the Trial Court while rejecting the discharge application of Exhibit-8 filed by the applicant / accused No.16 do not appear wrong, unlawful and against the provisions of law in any manner, because considering the police papers produced with the charge-sheet before the Trial Court, Ramesh D. Patel, the Extension Officer (Panchayat), Siddhpur has given the complaint to the P.I., Siddhpur.
According to the complaint, about twenty persons, despite not being eligible for getting a benefit of the government scheme, submitted application forms to get a free of cost gharthal plot in government land of Samoda Gram Panchayat and concealed true information in the application forms for it and used a false pedhinama instead of a true pedhinama and thus, despite not being eligible, the plots were granted to them free of cost. But thereafter in 1999, following the order of the Government of Gujarat to cancel the plots of those not belonging to the B.P.L. list, the plots granted to all the twenty persons were cancelled. However, in 2009, when the regular Talati of Samoda Gram Panchayat was on leave, the In-charge Talati of Khali D. H. Vania - the applicant / accused, despite the plots were cancelled in accordance with the order of the Government and there was a remark made by the then Sarpanch that, "To proceed further Page 5 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined after verifying with respect to the said matter from the date of cancellation of the plots", disregarded the remark and made an entry of the cancelled plots in the name of the respective persons in a significant revenue record being Gram Panchayat Form No.2
- Permanent Yield Register and provided a copy of the same to the concerned applicants on 14/12/2009 and thereby, committed a misconduct and cheating with the Government by hatching a criminal conspiracy in collusion with other persons. Thus, considering the facts of this complaint, police undertook an investigation and filed a charge-sheet against total 19 accused persons and is yet to arrest other seven accused persons in this offence. Thus, when the Extension Officer has filed a complaint against the applicant / accused by name and thereafter, a charge- sheet has been filed against the applicant / accused following the investigation, it cannot be considered just to discharge the accused without taking evidence on record in such a serious offence. Further, considering the provision under Section-195 of the Cr.P.C., the complaint in Criminal Case No.1507/16 before the Trial Court has been given by virtue of the Office of Extension Officer of Siddhpur Panchayat, i.e. the complaint of the offence against the accused has been given by a Public Servant and considering the facts of the complaint, the act of the applicant / accused prima facie does not appear lawful. Therefore, it prima facie does not appear that the bar of section- 195 of the Cr.P.C. is attracted in this case. On the basis of the whole discussion, the grounds recorded by the Trial Court while rejecting the discharge application of the applicant / accused do not appear wrong, unlawful and irrelevant in any manner. Thus, considering the gravity of the offence against the applicant / accused, it does not appear proper and reasonable to discharge him without recording evidence and therefore, this Court does not find any need to interfere with the order passed by the Trial Court and therefore, the decisions for the issue No.1 and issue No.2 are given in negative and with respect to the issue No.3 regarding the revision application, the following final order is passed.
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1. The Criminal Revision Application No.18/2018 filed by the applicant / accused is hereby dismissed.
2. The order passed by the Court of Additional Chief Judicial Magistrate, Siddhpur in Criminal Case No.1507/2016 rejecting the discharge application of Exhibit-8 filed by the applicant / accused is hereby confirmed.Page 6 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023
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3. The original record of Criminal Case No.1507/2016 of the Trail Court along with a copy of this order be sent to the concerned Court at the earliest."
11. Placing reliance on the same, Ms. Mehta, learned APP submitted that the submissions of the applicant herein may not be accepted for the reason that, at the relevant time, when the said entry came to be posted, the applicant herein was in-charge and the Note in question was very much there.
12. That both the Courts below concurrently held against the applicant-accused and considering the complaint / F.I.R. in question, both the Courts below came to the conclusion that, considering the gravity of the offence of the applicant/ accused, it does not appear proper and reasonable to discharge him, without recording evidence.
13. The Courts below considered the contents of the discharge application filed by the applicant-accused no.16, also considered the complaint / F.I.R. in question with regard to the fact that 20 persons despite not eligible for getting the government scheme, submitted the application form to get the free of cost Garthad plot in Samoda Gram Panchayat and that the true information of the application form was concealed and used a false Pedhinama, instead of a true Pedhinama and thus, despite not being eligible, the said plots were granted at free of costs. The Courts below also considered that thereafter, in the year 1999, following the order of the Government of Gujarat to Page 7 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined cancel the plots of those not belonging to B.P.L. list, the plots granted to all the 20 persons were cancelled. However, in the year 2009, when the regular Talati of Samoda Gram Panchayat was on leave, the in-charge Talati of Khali D. H. Vania - the applicant herein - accused, allotted the plots, disregarded the remarks and made an entry of the cancelled plots in the name of the respective persons, in the significant revenue record being Gram Panchayat Form No. 2 - Permanent Yield Register and provided a copy of the same to the concerned applicants on 14.12.2009 and thereby the applicant herein has committed alleged misconduct and cheating with the Government by hatching a criminal conspiracy in collusion with other persons. Considering the aforesaid, the investing authority undertook the investigation and after investigation, filed charge-sheet against total 19 accused persons and is yet to arrest other seven accused persons in the alleged offence. Considering the gravity of offence against the accused-applicant, the Courts below deemed fit to not to discharge the applicant-accused without recording evidence and therefore, the orders passed by the trial Court came to be confirmed and the Revision accordingly came to be dismissed.
14. At this stage, it is apposite to refer to the decision in the case of State Presented by the Inspector of Police v/s. M. Maridoss & Anr. reported in 2023 LiveLaw (SC) 25, wherein, the Hon'ble Supreme Court has held as under:
"From the impugned judgment and order passed by the High Page 8 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined Court and the reasoning given by the High Court, it appears that the High Court has quashed the criminal proceedings as if the High Court was conducting the mini trial. The scope and ambiguity of powers to be exercised under Section 482, CrPC has been elaborately dealt with and considered by this Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra). In para 57, it is observed and held as under:-
"From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, 39 recognized to secure the ends of Page 9 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the Page 10 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023 NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined investigating agency/police to investigate the allegations in the FIR."
Even otherwise, it is a settled position of law that while exercising powers under Section 482, CrPC, the High Court is not required to conduct the mini trial. What is required to be considered at that stage is the nature of accusations and allegations in the FIR and whether the averments/allegations in the FIR prima facie discloses the commission of the cognizable offence or not.
Under the circumstances, the impugned judgment and order passed by the High Court, which is just contrary to the decision of this Court in M/s Neeharika Infrastructure Pvt. Ltd (supra) and the other decisions on the points, is unsustainable."
15.1. It is alleged against the applicant herein that the applicant herein was Talati-cum-Mantri of Samoda Gram Panchayat and at that point of time, though the plots in question were cancelled, on an application made by one person for recording her name in the Village Form No.2 - permanent yield record, the name came to be recorded in the said Form. It is the case of the applicant herein that no such Note was on record at that relevant point of time.
15.2. Per contra, Ms. Maithi D. Mehta, learned APP placed on record the communication, which is relied upon the applicant herein and there is a Note, which is disputed by the applicant herein, as referred above, states that the said plots have been cancelled and further proceedings shall be conducted after verification with respect to the said matter at Taluka.
Page 11 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023NEUTRAL CITATION R/SCR.A/7719/2022 ORDER DATED: 23/01/2023 undefined 15.3. Considering the concurrent findings arrived at by the Courts below and in view of the submissions advanced by Ms. Mehta, learned APP, prima-facie, the case having been established against the present applicant, wherein, it is alleged against the applicant-accused with regard to the misconduct and cheating with the government record by hatching criminal conspiracy in collusion with other persons and considering the gravity of offence, as referred above, no interference is called for to exercise the discretion under Section 482 of the Code of Criminal Procedure, 1973, in the impugned order dated 05.12.2019 passed in Criminal Revision Application No. 18 of 2018 passed by the Additional Sessions Judge, Patan.
15.4. It is however kept open for the applicant herein to take all the contentions at the time, when the matter is taken-up before the concerned trial Court.
In view of above, the present Application stands dismissed.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 12 of 12 Downloaded on : Sun Sep 17 21:07:07 IST 2023