Gujarat High Court
Dineshkumar Achlanand Rathi vs State Of Gujarat on 29 January, 2025
NEUTRAL CITATION
R/SCR.A/3297/2017 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3297 of
2017
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DINESHKUMAR ACHLANAND RATHI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
DIGPALSNGH H RATHORE(8083) for the Respondent(s) No.
2,3,4,5
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/01/2025
ORAL ORDER
1. By way of filing present petition, petitioner seeks to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for quashing and setting aside the order dated 31.01.2015 passed by the learned Additional Chuief Metropolitan Magistrate, Court No.19, Ahmedabad in Criminal Inquiry Case No. 6 of 2013 as well as order dated 23.03.2017 passed by the learned Additional Sessions Judge, Court No.8, Ahmedabad in Criminal Revision Application No.79 of 2015.
2. Heard the petitioner - party-in-person, learned APP Mr. Soaham Joshi appearing for respondent No. 1 - State and learned advocate Mr. Rathore for respondent Page 1 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined Nos. 2 to 5 - original accused.
3. The petitioner - party-in-person Mr. Dineshkumar Achlanand Rathi - original complainant is personally present in the Court and submits that he has filed one complaint against the accused persons under Sections 379, 427, 452 and 114 of the Indian Penal Code before the Court of learned Additional Metropolitan Magistrate, Court No.19, Ahmedabad on 30.05.2013 and on the same day verification of the petitioner was recorded and thereafter the court concerned has passed order that before institution of the present complaint petitioner has already registered FIR against the accused persons and those facts have already been averred in the body of the complaint. Therefore, considering the same, Court concerned thought it fit to call for the report from the police under Section 210 Cr.P.C. and inquiry number was also given to the said complaint. Based upon the said order passed by the Court concerned, the investigating officer, who had recorded the statements of the witnesses and prepared a report, appeared before the Court concerned. After considering and appreciating the contents of the said report, learned Additional Metropolitan Magistrate, Court No.19, Ahmedabad, dismissed the said complaint on 31.01.2015 under Section 203 of the Cr.P.C. Being aggrieved and dissatisfied with the said order, petitioner herein has preferred revision application before the Revisional Court. The said revision Page 2 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined application has also not been entertained by the Revisional Court solely on the ground that the reasons assigned by the learned Magistrate are just, fair, reasonable and based upon the sound principle of law and therefore learned Revisional Court has not interfered with the said order. Therefore, present petition is filed.
4. The party-in-person submits that the view adopted by the learned Trial Court as well as learned Revisional Court is against the settled provisions of law and therefore the same is required to be quashed and set aside. The case of the petitioner is that he is the owner of Flat No.9/92 in Suramya Apartment, Naranpura, Ahmedabad and he has also given honorary service as a Treasurer in the Owners Association of Suramya Apartment. The petitioner has constructed one wall and made wire fencing and put-up iron gate for the purpose of protection. The said wall and iron gate were demolished by the respondents - accused on 12.11.2012 when he went to Gandhidham. On returning back, petitioner came to know about the demolition made by the accused persons. It is the case of the petitioner that the accused persons had demolished the wall and iron gate without the prior permission of the petitioner. Therefore, petitioner has filed Criminal Inquiry Case No.6 of 2013 on 30.05.2013 before the learned learned Additional Metropolitan Magistrate, Court No.19, Ahmedabad against the respondents - original accused for the offence Page 3 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined punishable under Sections 379, 427, 452 and 114 of the Indian Penal Code. The said criminal inquiry case came to be dismissed by the learned Court concerned on 31.01.2015 under Section 203 of the Cr.P.C. Being aggrieved by and dissatisfied with the said order, he preferred Criminal Revision Application No.79 of 2015 before the learned City Civil & Sessions Court, Ahmedabad. The said revision application also came to be dismissed by learned Additional Sessions Judge, Court No.8, Ahmedabad vide order dated 23.03.2017. The petitioner further submits that the learned trial court dismissed the complaint only on the ground that earlier the complainant - petitioner was managing the affairs of the society and the members of the society found some financial irregularities and therefore they sought clarification from the complainant and thereafter complainant has given a cheque of deficit amount to the office bearers of the society. The said cheque was dishonoured and therefore complaint under Section 138 of the Negotiable Instruments Act also filed by the office bearers of the society against the complainant. Moreover, civil disputes between the parties were also going on and the parties have amicably settled those disputes. Thus, considering and appreciating the documents available on record, the Court concerned jumped to the conclusion that no offence as alleged by the complainant against the accused persons has been made out. Hence, the said complaint came to be dismissed by the learned Court concerned. The said order is also confirmed by the Page 4 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined Revisional Court by cementing the reasons assigned by the learned Magistrate. Thus, the view adopted by the learned Trial Court as well as learned Revisional Court are not in consonance with the settled provisions of law and therefore the impugned orders passed by the learned Courts concerned are required to be quashed and set aside.
5. The petitioner further submits that during the course of inquiry, statement of present petitioner and other witnesses were recorded by the investigating officer and those statements are forming part of the present petition. If the Hon'ble Court would go through the contents of the said statements, in that event, it would be found out that the witnesses have in very graphical manner described the entire sequence of events by specifically stating that on particular day, despite the fact that tenant of the petitioner has tried to stop the said illegal activity, the accused persons had carried out the said activity. He further submits that despite the fact that those kind of ample evidences in the form of statement of independent witnesses are available on record, learned Magistrate Court has dismissed the complaint filed by the complainant and the learned Revisional Court has upheld the said order. Therefore, the impugned orders passed by the Courts concerned are required to be quashed and set aside.
6. Learned APP Mr. Soaham Joshi appearing for the Page 5 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined respondent - State has submitted that the documents submitted by the petitioner along with the memo of the petition clearly goes on to demonstrate that initially he has tried to register the FIR, however, he could not get success in his attempt and therefore he approached before the Court concerned and the learned Court concerned has called for the report from the inquiry officer and after considering and appreciating the material supplied by the investigating officer, the court concerned jumped to the conclusion that prima facie no offence is made out against the accused persons. Thereafter the said view has also been upheld by the Revisional Court, which clearly goes on to show that no error of law and or facts can be said to have been made by the learned Court concerned at the time of passing the order. Therefore, the petition is required to be dismissed.
7. Learned advocate Mr. Rathore appearing for the respondent Nos. 2 to 5 - original proposed accused persons has submitted that in fact after considering and appreciating all the materials available before the Court of learned Magistrate as well as Revisional Court, they passed the orders with justifiable reasons and therefore no interference is required to be made by this Court. He further submits that almost all arguments have been canvassed by learned APP and he is adopting those arguments. He further submits that in fact there was dispute going on between the Page 6 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined petitioner and private respondents. Both the parties are the members of the common residential society. The petitioner has encroached upon the property of the society and therefore he was directed to remove the said illegal and unauthorized constructions carried out by him. Despite the said fact, petitioner has not removed the said construction. He further submits that the wall constructed by the petitioner is situated adjoining to the children play area and the said wall was in dilapidated condition, which is confirmed by the documents produced along with the compliant. Therefore, with an intention to maintain the safety of the society members the said wall was demolished by the members of the society and said fact was well within the knowledge of the petitioner and said facts have already been placed on record. Thus, considering the same, the order came to be passed by the learned Magistrate Court and confirmed by the learned Revisional Court. Hence, no interference is required to be made by this Court. He, therefore, urges that petition may be dismissed.
8. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it is found out that petitioner - party-in-person - original complainant has filed one complaint against the accused persons under Sections 379, 427, 452 and 114 of the Indian Penal Code before the Court of learned Additional Metropolitan Magistrate, Court No.19, Ahmedabad on 30.05.2013.
Page 7 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined After considering and appreciating the contents of the report submitted by the investigating officer, learned Additional Metropolitan Magistrate, Court No.19, Ahmedabad, dismissed the said complaint on 31.01.2015 under Section 203 of the Cr.P.C. Being aggrieved and dissatisfied with the said order, petitioner herein has preferred revision application before the Revisional Court. The said revision application has also not been entertained by the Revisional Court solely on the ground that the reasons assigned by the learned Magistrate are just, fair, reasonable and based upon the sound principle of law and therefore learned Revisional Court has not interfered with the said order. From bare perusal of the order passed by the learned Magistrate Court, it is found out that learned Magistrate has dismissed the complaint only on the ground that earlier the complainant - petitioner was managing the affairs of the society and the members of the society found some financial irregularities and therefore they sought clarification from the complainant and thereafter complainant has given a cheque of deficit amount to the office bearers of the society. The said cheque was dishonoured and therefore complaint under Section 138 of the Negotiable Instruments Act also filed by the office bearers of the society against the complainant. Moreover, civil disputes between the parties were also going on and the parties have amicably settled those disputes. Thus, considering and appreciating the documents available on record, Page 8 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined the Court concerned jumped to the conclusion that no offence as alleged by the complainant against the accused persons has been made out. Hence, the said complaint came to be dismissed by the learned Court concerned. The said order is also upheld by the Revisional Court by cementing the reasons assigned by the learned Magistrate. However, it is the case of the petitioner that at the time of passing the order, learned Magistrate has not considered the statements of the independent witnesses as well as present petitioner recorded by the investigating officer during the course of investigation and solely on the basis of the aforesaid reasons, dismissed the complaint filed by the petitioner. Thus, the view adopted by the learned Trial Court as well as learned Revisional Court are not in consonance with the settled provisions of law and therefore the impugned orders passed by the learned Courts concerned are required to be quashed and set aside.
9. It is also found out from the record that at the time of considering the allegations levelled against the accused persons, court concerned has jumped to the conclusion that earlier complainant has filed a complaint in the form of an application before the police officer and therefore the Court concerned passed an order directing the police officer to produce the copy of the report. It is found out from the record that police authority has not entertained the complaint filed by the complainant in the form of Page 9 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined an application and said fact has come on surface. Despite the said fact the Court concerned has passed a specific order stating that under Section 210 of the Cr.P.C. further proceedings cannot be continued as earlier complaint in the form of an application has already been preferred by the complainant and inquiry in that regard has already been carried out by the police officer. The said view adopted by the learned Magistrate is prima facie found to be erroneous one because record itself reveals that police has not entertained the application preferred by the complainant and therefore complainant was constrained to register complaint against the accused persons before the Court of law. Secondly, at the time of entertaining the complaint, court concerned has passed order under Section 202 Cr.P.C. to call for the report from the police officer. Thereafter, the inquiry officer has recorded the statements of the witnesses and prepared a report and submitted it before the Court of law. Considering the said report, the Court concerned jumped to the conclusion that complainant has failed to disclose the cognizable offence and hence dismissed the same. At the relevant point of time, the Court has made reference of Section 210 Cr.P.C. The said view adopted by the learned Judge is not correct one because if based upon the same set of allegations complainant has approached before the different authorities and the said fact has come on surface, in that event, the Court concerned has to stay the proceedings pending Page 10 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined before the Court and give direction to the police officer concerned to carry out inquiry/investigation and submit a detailed report before the Court but merely complaint in the form of an application is preferred by the complainant and said complaint is not entertained, in that event by exercising powers under Section 210 Cr.P.C. complaint of the complainant cannot be dismissed. Thus, the said view adopted by the learned Judge, prima facie, seems to be not in consonance with the provisions of law. Despite the fact that there was glaring defect in the operative part of the order, the learned Revisional Court has cemented the said view adopted by the learned Magistrate by rejecting the revision application and therefore this Court is of the opinion that the impugned orders passed by learned Magistrate and learned Revisional Court are required to be quashed and set aside and the matter is required to be remanded back to the learned Trial Court to decide it afresh in accordance with law.
10. In view of the aforesaid discussion, the order dated 31.01.2015 passed by the learned Additional Chief Metropolitan Magistrate, Court No.19, Ahmedabad in Criminal Inquiry Case No. 6 of 2013 as well as order dated 23.03.2017 passed by the learned Additional Sessions Judge, Court No.8, Ahmedabad in Criminal Revision Application No.79 of 2015 are hereby quashed and set aside. The matter is remanded back to the learned Trial Court to decide it afresh Page 11 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025 NEUTRAL CITATION R/SCR.A/3297/2017 ORDER DATED: 29/01/2025 undefined in accordance with law after affording an opportunity of hearing to both the parties.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 12 of 12 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:29:36 IST 2025