Gujarat High Court
Anish Bhupendrakumar Bhatt vs State Of Gujarat & on 26 March, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/16569/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16569 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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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ANISH BHUPENDRAKUMAR BHATT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR JINESH H KAPADIA, ADVOCATE for the Applicant(s) No. 1
MR NARENDRA L JAIN, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR AN SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/03/2015
Page 1 of 15
R/CR.MA/16569/2014 CAV JUDGMENT
CAV JUDGMENT
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused No.1 seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.712 of 2014 pending in the Court of the the learned Metropolitan Magistrate Court No. 23, Ahmedabad.
2. The facts giving rise to this application may be summarized as under :-
2.1 The respondent No.2 lodged a private complaint in the Court of the learned Metropolitan Magistrate Court No. 12, Ahmedabad against the applicant herein and one another person namely Mehboob Musaji Kuchamalwala for the offence punishable under Sections 466, 471, 473, 323, 120-B read with Section 114 of the Indian Penal Code.
3. A bare reading of the contents of the complaint would indicate that the same was filed more in public interest rather than redressing any personal grievance.
Otherwise also the complainant has made it clear in the complaint that he is not in aggrieved party. It is alleged that the manner in which the applicant herein, when he is serving as a Bailiff in the City Civil Court at Ahmedabad in collusion with the co-accused took over the possession of the disputed premises with the help of the Police speaks Page 2 of 15 R/CR.MA/16569/2014 CAV JUDGMENT volume about the illegal activities going in the City Civil Court more particularly by the Bailiffs.
4. It is his case that one Shri Sultan Mohammad Nagorwala happens to be his friend. A civil litigation is going on between Shri Nagorwala and the co-accused namely, Mehboob Musaji Kuchamalwala. It appears that Shri Kuchamalwala is the owner of the premises occupied by Shri Nagorwala as a tenant. Shri Kuchamalwala filed an H.R.P. Suit No. 1222 of 1997 in the Small Cause Court for possession of the suit premises. It is alleged in the complaint that the applicant herein in collusion with the co-accused forcibly dispossessed Shri Nagorwala from the premises on the strength of a warrant and with the aid of the local Police. To put briefly, it is alleged in the complaint that on Sunday, the applicant herein without obtaining any order from the concerned Small Cause Court forged the seal of the Court and obtained the help of the Police for the purpose of taking over of the possession of the premises.
5. The learned Metropolitan Magistrate took cognizance upon the complaint and ordered Police inquiry under Section 202 of the Code. It appears that the Police Inspector of the Gayakwad Haweli Police Station conducted the inquiry and gave a detailed report to the learned Magistrate stating that no offence worth the name could be said to have been committed by the accused Page 3 of 15 R/CR.MA/16569/2014 CAV JUDGMENT persons named in the complaint.
6. The learned Metropolitan Magistrate after taking into consideration the report of the Police Inspector and other materials on record though fit to issue Process against the accused persons for the offence punishable under Section 466, 471, 473, 323, 120-B read with Section 114 of the Indian Penal Code vide order dated 21st August, 2014.
7. It also appears from the materials on record that the respondent No.2 herein had filed Criminal Misc. Application No.7 of 2011 in the Court of the learned Metropolitan Magistrate, Court No.23 under Section 340 of the Code, praying that the Court should file a complaint against the applicant herein and the other co-accused for the alleged offence said to have been committed in the course of a judicial proceeding. Such application was ordered to be rejected, vide order dated 18th February, 2011. Being dissatisfied with such order passed by the learned Metropolitan Magistrate the complainant filed a Criminal Revision Application No.102 of 2011 in the City Sessions Court. The Principal Judge of the City Sessions Court allowed the Revision Application and remanded the matter to the learned Metropolitan Magistrate for fresh consideration of the issue.
8. The applicant herein has come up with this application praying that the complaint lodged by the Page 4 of 15 R/CR.MA/16569/2014 CAV JUDGMENT respondent No.2 is not only false but the same is tainted with mala fiedes.
9. Mr. Jain, the learned advocate appearing on behalf of the applicant vehemently submitted that the respondent No.2 has no locus to file such a complaint in the Metropolitan Court, more particularly, when the person who is alleged to have been illegal dispossessed from the premises has nothing to say in that regard. Mr.Jain submitted that the respondent No.2 is a Court bird and is in the habit of filing such frivolous complaints in the name of administration of justice. According to Mr. Jain, the first and the foremost issue that arises for the consideration of this Court is whether the complaint itself is maintainable.
10. Mr. Jain further submitted that assuming for the moment that the complaint is maintainable, still it fails to disclose commission of any cognizable offence. He submitted that the learned Magistrate without any application of mind took cognizance and ordered issue of process. He submitted that even the report of the Police Inspector under Section 202 of the Code fully exonerates the applicant herein. He submitted that the Registrar of the Small Cause Court informed the Police Inspector in writing that the round seal affixed on the Policeyadi is of the Court and no forgery as alleged by the complainant could be said to have been committed. He submitted that his client who is serving as a bailiff has been empowered Page 5 of 15 R/CR.MA/16569/2014 CAV JUDGMENT to issue Policeyadi for such purpose. He further submitted that the owner of the premises i.e. the co-accused holds a valid decree in his favour of eviction and possession of the premises. The co-accused has filed an execution petition and in connection with the execution petition the applicant herein took over the possession of the premises. He submitted that his client committed no wrong not to speak of any offence alleged to have been committed.
11. In such circumstances, referred to above Mr.Jain prays that there being merit in this application, the complaint be quashed.
12. This application has been vehemently opposed by the respondent No.2, appearing-in-person. He submitted that the complaint filed by him is legally maintainable. He submitted that although he has no interest in the premises or in the litigation yet, the judgment debtor happens to be his friend and on behalf of his friend he though fit to file a private complaint as the possession of the premises was taken over by the bailiff with the aid of the Police in a very high handed manner.
13. He submitted that the learned Magistrate committed no error in issuing process against the applicant and the co-accused. He submitted that there being no merit in this application, the same be rejected.
Page 6 of 15 R/CR.MA/16569/2014 CAV JUDGMENT14. Mr. A.N. Shah, the learned APP submitted that the complaint lodged by the respondent No.2 herein is not maintainable as he has nothing to do with the disputed premises or the alleged illegal action on the part of the applicant and the co-accused. He submitted that there is nothing on record to even prima facie suggest that the judgment debtor had authorized him in any manner to file such a complaint. He submitted that the judgment debtor may happen to be his friend but that by itself is not sufficient to make him legally entitled to file such a complaint. He submitted even otherwise no offence could be said to have been committed in the facts of the present case.
15. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the complaint and the order of process passed by the Magistrate deserves to be quashed.
16. I deem fit to first deal with the main issue as regards the maintainability of the complaint at the instance of the respondent No.2. It is not in dispute that the complainant is not the owner of the disputed premises. He is not even a party in the civil litigation, pending before the Small Cause Court at Ahmedabad. It appears that he has voiced a grievance on behalf of his friend who is said to have been dispossessed forcibly and in an illegal manner. It also Page 7 of 15 R/CR.MA/16569/2014 CAV JUDGMENT appears that against such alleged forcibly dispossession from the premises, no legal steps have been taken in that regard by the judgment debtor.
17. Without going into the question of locus standi which is generally dependent upon the question whether the person invoking the aid of the High Court is a person aggrieved, suffice it to say, that the doctrine of locus standi even of a stranger is gradually gaining ground, provided he is not a busybody or mischievous intruder. Lord Dennink while considering the question of locus standi with regard to granting certiorari, mandamus or prohibition has observed that the Courts of common law "have always kept their options open. They have held that it is in the discretion of the Court whom it shall hear : and whether to grant such a remedy or not. The tendency in the past was to limit them to persons who had a particular grievance of their own over and above the rest of the public. But in the recent years there has been a remarkable series of cases in which private persons have come to the Court and have been heard. There is now a much wider concept of locus standi when complaint is made against a public authority. It extends to anyone who is not a mere busybody but is coming to the Court on behalf of the public at large." (Lord Denning in the Discipline of Law at page 117). But those observations were confined to prerogative writs (now replaced by orders with the same names) of certiorari, mandamus and Page 8 of 15 R/CR.MA/16569/2014 CAV JUDGMENT prohibition aimed at restraining the abuse or misuse of power by a public authority.
18. Since the complainant has raised an issue relating to the administration of justice- in which field, irrespective of private complainant's locus, the community at large is also concerned and may in a given case, have a vital locus. Therefore, to that limited extent, I am inclined to give him that benefit and have decided not to quash the complaint solely on the ground that he has no locus to file such a complaint. But to what extent there is an element of truth in his complaint and whether the same discloses commission of any offence is a matter which I shall now consider.
19. Even if the entire case of the complainant is accepted to be true then in my view no offence, not to speak of any offence of forgery could be said to have been committed by the applicant herein. The applicant is serving as a bailiff. There is an eviction decree against the tenant of the premises. The decree was to be executed.
20. Although, it was a Sunday yet there is nothing to show that a decree cannot be executed on a holiday. The Registrar of the Small Cause Court, Ahmedabad in his letter dated 12th May, 2014 addressed to the Police Inspector, Gayakwad Haweli Police Station has stated as under. The free English translation of the same is as under:-
Page 9 of 15 R/CR.MA/16569/2014 CAV JUDGMENT"1. At the time of execution of arrest warrant or any other warrant or notice, if the bailiff finds that there is apprehension of breach of the peace or obstruction in the proceedings then they usually execute with the help of Police. And for that they keep forms of Policeyadi with them duly sealed with the seal of the Court.
2. Bailiff determines dates of execution of warrant so that they my supply the Policeyadi to the concerned Police Station on or before the day of execution for the purpose of Police Protection. As to whether they give yadi to the Police Station on public holiday that depends upon their convenience of execution and they keep with them the yadi duly stand with the seal of the Court.
3. Hon'ble Court has not passed any order with regard to seek the help of Police at the time of executing arrest warrant.
4. Round seal affixed on Policeyadi to seek Police Protection is of this Court only."
21. The In-Charge, Registrar of the Small Cause Court, Ahmedabad gave a report to the Court of the learned Metropolitan Magistrate, Court No.23 Exhibit-15 in inquiry No.6 of 2011 inter alia, stating as under. The free English translation of the same is as under:-
"I, the understand, Registrar in Charge, Small Cause Court, Ahmedabad represents that with reference to the notice executed in application vide exhibit-14 and dispatch number (Jaavak Number - 667/13) filed by the applicant in the Hon'ble Court:-
In this proceedings, have nothing more to say beyond the statement made by the then Registrar.
Bailiff carries forms of Policeyadi with the seal of the Court at the time of execution of warrant when the Court orders for the same.
I have neither to submit any documentary evidence nor any other materials except this written submissions.
In-Charge Registrar
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R/CR.MA/16569/2014 CAV JUDGMENT
Small Cause Court,
Ahmedabad
Dated : 25/11/2013"
22. A portion of the report of the Police Inspector under Section 202 of the Code, reads as under. The free English translation is as under:-
"As per statement recorded from opponent no.1, Anish B. Bhatt, Bailiff, he states that he is working as bailiff in the Small Cause Court, Bhadra at Ahmedabad since eleven years. As per the order of the Hon'ble Court we received arrest warrant no.172/2010 dated 8th September, 2010 for the purpose of its execution and for that power of attorney holder of plaintiff Mr. Mehboob Musaji Kuchamalwala had came on 9th September, 2010 and he sought for the time to execute the same and time has been granted accordingly for 13th September, 2010 in the morning. Therefore, we had given Policeyadi on 11th September, 2010 to seek police protection for 13th September, 2010. I and each bailiff are provided those yadis on the papers processed by Court with the seal of the Court for the purpose of its execution. And on the basis of those yadis we are provided police protection from 11.00 a.m. to 3.45 p.m. on the day of 3rd September, 2010 and accordingly we have proceeded.
On the basis of inquiry with Shri Bharatbhai Govindbhai, Registrar, Small Cause Court, it is found that Anish B. Bhatt is working in our Court. The Nazir Branch issues warrant to him when the Hon'ble Court passes an order and these warrant is being forwarded to bailiff department for its execution and there the Head of the Bailiff bifurcates the warrant area-wise and thereafter hand over to the concerned area bailiff. Thereafter, it goes for its execution to the plaintiff as per dates decided earlier. I have recorded the statements with regard to the tendency prevailing in the Small Cause Court regarding preparation of policeyadi in advance.
During the investigation in the matter of the present complainant, it is found that the present accused in the matter had mislead the Police by affixing forged round seal of the Small Cause Court and handed over the possession of the disputed property. During the investigation it is found that present opponent Mr. Anish B. Bhatt has possessed yadi duly sealed with the seal of the Hon'ble Small Cause Court in advance, for the purpose of its execution, issued by the Nazir Branch, application no.172/10 on 8th September, 2010. further it is found that present opponent Mr. Anish B. Bhatt had prepared the policeyadi duly sealed with the seal of the Hon'ble Court on 13th Page 11 of 15 R/CR.MA/16569/2014 CAV JUDGMENT September, 2010 for the purpose of Police Protection and to hand over the possession of the disputed property in the matter.
Further it is found that there is no evidence of breach of the peace or the necessity of the use of the police force when the present opponent Mr. Anish B. Bhatt and Mr. Mehboob Musaji had gone to take possession of the disputed property in the matter. It is found that the present opponent has arranged police protection on the basis of policeyadi duly sealed with the round seal of the Hon'ble Court as per the direction of the Small Cause Court. During the investigation, it is found that, there is no evidence of any incrimination in the present complaint. It is requested to record the statements of the opponent and do the needful in the matter as deem fit."
23. Thus, it appears from the materials on record that no stamp and seal has been counterfeited by the applicant herein at the behest of the co-accused for the purpose of taking over of the possession. The Policeyadi, which is given to the bailiffs is only for the protection of the bailiffs and for that a resolution has been issued in that regard. The Director General of Police, Gujarat State has also issued necessary instructions.
24. The respondent No.2 appearing-in-person has placed reliance on few decisions of the Supreme Court. The first judgment relied upon is in the case of Brhamdev Chaudhary Vs. Rishidev Prashad Jaishwal reported in AIR 1997 SC 856. He has placed reliance on the observation made by the Supreme Court as contained in paragraph no.5.
"5.In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree- holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is Page 12 of 15 R/CR.MA/16569/2014 CAV JUDGMENT only under Order XXI, Rule 97 sub-rule (1) and he cannot by- pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualize that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule
99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of inquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and Page 13 of 15 R/CR.MA/16569/2014 CAV JUDGMENT barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."
25. In my view, the aforenoted decision of the Supreme Court is of no avail to him in any manner, so far as the issue whether any offence is committed or not. The Supreme Court has only explained the provisions of Order 21 Rule 97 and Rule 99 of the C.P.C.
26. He has also relied upon the decision of the Supreme Court in the case of Som Mittal Vs. State of Karnataka (2008) 3 SC, 574, Wherein, the Supreme Court has observed that the powers under Section 482 of the Code are to be exercised very sparingly and with circumspection. Well, there cannot be any dispute with regard to the proposition of law explained by the Supreme Court but the case on hand is one wherein, if the complaint is not quashed then it will be amount to abuse of the process of law.
Page 14 of 15 R/CR.MA/16569/2014 CAV JUDGMENT27. In the over all view of the matter, I find the complaint to be absolutely frivolous and vexatious.
28. In the result, this application is allowed. The proceedings of the Criminal Case No.712 of 2014, pending in the Court of the learned Chief Metropolitan Magistrate, Court No.23 are ordered to be quashed. All consequential proceedings pursuant thereto also stands terminated. Rule is made absolute.
(J.B.PARDIWALA, J.)
After the pronouncement of the order, the
respondent No.2 appearing-in-person-the original
complainant prays for certificate for Appeal to the
Supreme Court under Article 134 A of the Constitution. The prayer is out-right rejected.
(J.B.PARDIWALA, J.) Manoj Page 15 of 15