Gujarat High Court
Sheikh Gulam Rasul S/O Jummabhai ... vs State Of Gujarat on 22 November, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 12558 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
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 ?
==========================================================
SHEIKH GULAM RASUL S/O JUMMABHAI HUSSAINBHAI & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR.D K.PUJ(3836) for the Applicant(s) No. 1,2,3
MALAV M MULANI(8844) for the Respondent(s) No. 2
MR PRAVIN GONDALIYA(1974) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/11/2021
ORAL JUDGMENT
1. The petitioners before this Court by preferring the present petition under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") has made a prayer to quash and set aside the FIR being C.R. Page 1 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 No.I - 148 of 2010 lodged with Radhanpur Police Station, Patan under Sections 406, 465, 467, 468, 471, 34 and 120B of IPC.
2. The petitioners state that they are independent and innocent persons being harassed by respondent no.2 alleging right on the land belonging to the father. Petitioner no.1 is brother of respondent no.2. The petitioners state that respondent no.2 has chosen to remain silent for 17 years. The land has been given by the father to petitioner no.1 by way of gift in the year 1993, petitioner no.2 has signed as a witness in the declaration deed along with other witness being Amanullakhan Kalekhan Pathan. Petitioner no.3 is a bonafide purchaser of the land from the petitioner no.1 by way of registered sale deed dated 18.08.2010.
3. Mr. D.K. Puj, learned advocate for the petitioners submits that false allegations have been made against the brother alleging that he has transferred the land belonging to their father by using forged declaration of the year 1993. Mr. Puj states that respondent no.2 has claimed her right on the property of the deceased father and that too after a long period of 12 years.
3.1 Mr. Puj submits that the father of the petitioner no.1 was a farmer and he owned agricultural land bearing Survey No.217, admeasuring 5-66-56 h-a-sq. Meters Page 2 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 known as Mokhasar farm in Village Satun, Taluka- Radhanpur. On 29.06.1993, the father gifted the land to his only son under the provision of 'Shariat Muslim Hanafi Mazhab' orally in presence of two witnesses and on the same day father made declaration of giving 'Bakshish' to petitioner no.1 on Affidavit before the Executive Magistrate, Radhanpur. The revenue entry was mutated on 27.12.1993 and certified on 31.01.1994 after due verification of the documents. Petitioner no.2 had signed the declaration of the father as a witness along with other witness namely Amanullakhan Kalekhan Pathan and petitioner no.1 being the absolute owner of the land cultivated the land by taking various crops for about 17 years.
3.2 Mr. Puj submits that since the value of the land has escalated, the respondent no.2 with malicious intention filed Regular Civil Suit No.59 of 2010 for declaration and permanent injunction on 12.08.2010. He submits that since the respondent no.2 could not succeed by way of any interim relief, therefore, false, frivolous and vexatious FIR has been lodged and criminal machinery was used as a weapon against the brother and the subsequent bonafide purchaser.
3.3 Mr. Puj further submitted that the revenue entry dated 27.12.1993 was certified on 31.01.1994 and the father of the petitioner no.1 died on 19.02.1998. Had Page 3 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 there been any false representation before the revenue authority, the father of the petitioner itself would have taken steps against the said entry. Mr. Puj states that the respondent no.2 for the very first time has doubted the signature of the father by filing Suit and till then neither revenue entry nor sale deed were challenged. He submits that the property gifted to son is in accordance to the principles of Mahomedan law and delay in filing the FIR itself would be very good ground for quashing the FIR.
4. Mr.Malav M.Mulani, learned advocate for the respondent no.2 by drawing the attention of this Court towards documents dated 27.12.1993 before Talati-cum- Mantri, Satun Gram Panchayat and an application dated 27.12.1993, states that there is great variance in the signature of the father, which itself suggests that there was forgery. He submits that such kind of forgery is not permissible under the Mahomedan law. He states that the trial is required for the complaint. The investigation has to be proceeded and the Investigating Officer should get an opportunity for examining the fact of any misrepresentation to the revenue authority. Mr. Mulani states that criminality of the matter can only be investigated by the police authority, thus, states that no discretion be exercised for quashing the FIR.
4.1 Mr. Mulani relying on the affidavit-in-reply of respondent no.2 submits that petitioner no.1 was declared as a 'donee' of the father and on the basis of the Page 4 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 gift deed (Baxix Karar) necessary entry to that effect was mutated, but no notice under Section 135(D) of the Bombay Land Revenue Code was issued by Talati-cum- Mantri, Satun Gram Panchayat to the heirs of Jummabhai Hussainbhai and therefore the heirs were not aware about the said entry. Mr. Mulani further stated that the land in question was given by way of partition which itself suggests that the property was not received by way of gift dated 29.06.1993.
4.2 Mr. Mulani states that father had died leaving five legal heirs and since under the provision of Mahomedan law, the son of the deceased would get double the share to that of the daughters to that reason false and forged deeds were created on 29.06.1993 with the help of petitioner no.2. Since the heirs of Jummabhai Hussainbhai had no knowledge of such gift deeds, therefore, Civil Suit was filed. Mr. Mulani also states that the petitioner no.1 has suppressed the material fact by not producing copy of statement dated 27.12.1993 and copy of notice of the same day issued under Section 135(D)(2) of the Bombay Land Revenue Code. He submits that by way of creating such gift deed, petitioner no.1 has usurped the property of the father. He states that one gift deed was executed on 29.06.1993 and another gift deed was executed on the same day for another property, which itself creates doubts and suspicion. He states that ingredients of sections invoked in the FIR get attracted to the offence by the petitioners and therefore the present Page 5 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 petition requires to be rejected.
5. The Revenue Entry No.929 dated 27.12.1993 certified on 31.01.1994, shows that father had stated before the concerned authority of handing over the land to his son because of his old age and ill health. The declaration is by way of Affidavit. It has also been stated that petitioner no.2 and one Amanullakhan Kalekhan Pathan were the witnesses to the declaration and after the declaration the father died on 19.02.1998. The petitioner no.1 cultivated the land taking various crops for about 17 years. Subsequently on 18.02.2010, the land came to be sold by way of registered sale deed to petitioner no.3 and respondent no.2 has also filed Regular Civil Suit No.59 of 2010.
5.1 The documents which have been questioned by respondent no.2 in the form of declaration to the gift, both are executed on the same day before the Executive Magistrate, Radhanpur. The executant - father of respondent no.2 and petitioner no.1, was identified before the Executive Magistrate. Both the documents disclose different properties. The documents of declaration of the gift is stated to be made Muslim Hanafi law. Witnesses to these deeds of two properties are the same. The father was before the revenue authority, who entrusted the property of Survey No.217 to his son which was certified on 31.01.1994. Thereafter, there has been encumbrance on the said land of co-operative society, wherein Page 6 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 agricultural loan appears to have been taken and the entry has been made on 19.07.2001 and 12.08.2002. The 7/12 extracts shows Survey No.217 in the name of petitioner no.1, the second right is of the cooperative society on the said property. Account No.45 by way of Village Form No.8/A extracts reflects the name of petitioner no.1. Thereafter, declaration has been made for the said property on 29.06.1993 before the Executive Magistrate that the said property is gifted to petitioner no.1. While on the very same day another declaration was made for City Survey No.45 with Entry No.2287 being gifted to petitioner no.1. The respondent no.2 is before the Civil Court by way of Civil Suit No.59 of 2010. It appears as per the record that, respondent no.2 has never challenged all these entries during the life time of her father.
6. Chapter XI of the Principles of Mahomedan Law in the book of Mulla of 22nd Edition, refers that, the gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter, which literally means giving away such thing from which the person in whose favour the gift is made may draw benefit. The gift is also known as 'Hiba'. Under the Mahomedan Law 'Hiba' is also making of another person owner of the corpus of property without taking consideration from it. Every Mahomedan of sound mind and not a minor may dispose of his Page 7 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 property by gift. A gift is distinguished from a will, may be made of the whole of the donor's property, and it may be made even to an heir. Thus, gift or Hiba comes into operation the very moment immediately during the life time of the person who donates the property to the concerned person.
6.1 It has been noted under Rule 142 of the principles of Mahomedan Law, Mulla as under:
Rule 142: Extent of donor's Power:- A gift as distinguished from a will, may be made of the whole of the donor's property, and it may be made even to an heir.
"The policy of a Mahomedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs," although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms".
6.2 If a gift is made with intent to defraud the creditors of the donor then is voidable at the option of the creditors. Such intention however cannot be inferred Page 8 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 from the mere fact that the donor owed some debts at the time of the gift. So any challenge to the gift, could be given by the creditors of the donor; however, if the daughter feels aggrieved by such act of the donor, she would have all right to go before the Court of law to challenge the same. The respondent No.2 by way of filing Regular Civil Suit No.59 of 2010 has prayed for certain reliefs which the competent Court after the evidence on record would appreciate those deeds and actions of the deceased in accordance to the provisions of Mahomedan Law.
7. The impugned FIR dated 12.10.2010 refers to the period of offence as 27.12.1992 to 01.07.2010. There is inordinate delay in filing the FIR, offence has to be reported promptly. No explanation is coming forth for delay in registration of FIR. As per the record, the FIR is registered evenafter filing of the Regular Civil Suit, on 12.08.2010.
8. The Hon'ble Apex Court in case of Kishan Singh (Dead) Through Lrs. Vs. Gurpal Singh And Other, reported in (2010) 8 Supreme Court Cases 775, while dealing with the inordinate delay in filing of the FIR held that:
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for Page 9 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal.
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."
9. The dispute raised is civil in nature. There has been gross delay in filing the FIR. The FIR cannot be allowed to be used as a weapon in the hands of the aggrieved against the petitioners.
10. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court formulated Page 10 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, Page 11 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) 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;
(f) 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 Page 12 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022 R/CR.MA/12558/2010 JUDGMENT DATED: 22/11/2021 concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) 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."
11. Thus, the parameters laid down in the case of State of Haryana V. Bhajan Lal and others (supra) should be appreciated to the facts of the case. There has been inordinate delay in filing the FIR and the criminal proceeding is manifestly attended with malafide intention and maliciously instituted with an ulterior motive. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the petitioners for securing the ends of justice.
12. For the foregoing reasons, the petition is allowed. The impugned FIR being C.R. No.I - 148 of 2010 lodged with Radhanpur Police Station, Patan and the proceedings initiated pursuant thereto are quashed and set aside qua the present petitioners. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 13 of 13 Downloaded on : Wed Jan 12 03:23:16 IST 2022