Gujarat High Court
Jayaben @ Parvatiben D/O Dayalbhai ... vs Ishwarbhai Chhaganbhai Patel & 14 on 9 April, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/4974/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
4974 of 2014
In SPECIAL CRIMINAL APPLICATION NO. 1172 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JAYABEN @ PARVATIBEN D/O DAYALBHAI MANGALBHAI RATHOD & W/O
& 1....Applicant(s)
Versus
ISHWARBHAI CHHAGANBHAI PATEL & 14....Respondent(s)
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Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1 - 2
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Respondent(s) No. 1 - 8 , 10 -
11
MS. MAITHLI MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 12
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Page 1 of 15
R/CR.MA/4974/2014 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 09/04/2014
ORAL JUDGMENT
1. This application is preferred for vacation of ad interim relief granted by this Court by an order dated 27th March 2014 which reads as under :
" The question raised in the petition is as to whether in light of the fact that after learning about the fraud having been exercised by power of attorney, the applicants having canceled the sale deed executed in his favour by such power of attorney holder, the applicants- purchasers can be subjected to the criminal proceedings".
2. In the main petition the respondent nos.111 have asked for following reliefs :
(A) Issue a writ of mandamus or a writ in the nature of Mandamus or any other appropriate writ, order and/or direction and be pleased to direct the respondent no. 2 to 4 to restrain from taking any coercive action including the registeration of an FIR, against the petitioners in pursuant to the statement made by respondent no. 3 before this Page 2 of 15 R/CR.MA/4974/2014 JUDGMENT Hon'ble Court on 13th February 2014 in Special Criminal Application No. 199 of 2014 in view of the fact that the petitioners have relinquished their rights in connection with the lands in question;
(B) Pending the admission and final hearing of the present petition be pleased to direct the respondents no. 2 to 4 from taking any coercive steps against the present petitioners in connection with the statement made by the respondent no. 3 before this Hon'ble Court on 13th February 2014 in Special Criminal Application No. 199 of 2014.
3. Thus, in the petition under Article 226 of the Constitution of India it is mainly prayed for (1) an injunction against registration of FIR and (2) an injunction against taking coercive action.
4. The respondent nos.111 have produced an order passed in Special Criminal Application No. 199 of 2014 which petition was disposed of on the basis of statement made by learned APP that FIR registration of which is being objected to in this petition, is on the verge of being Page 3 of 15 R/CR.MA/4974/2014 JUDGMENT registered against the respondent nos.111. The aforementioned petition was, thus, for registration of FIR against the respondent nos.111 on various grounds.
5. It would not be necessary to address the facts in great detail. Suffice it to say that the dispute is with regard to land bearing survey no. 116/2 which was originally owned by Narsingbhai Prabhubhai and Gamel Kesar, which ultimately landed in the hands of Mangal Bhula with restricted rights to enjoy it as a tenant. Mangal Bhula died in 1985 and prior thereto he is stated to have executed an agreement to sale favouring some other persons. In 1985 respondent no. 6 Dahiben got the power of attorney deed in her favour after death of said Mangal Bhula, as if he was alive and ultimately on the basis of such power of attorney deed, the land in question came to be purchased by other respondent nos.111. After the execution of the sale deed in favour of respondent nos.111, the Deputy Collector, Surat initiated tenancy proceedings under section 73 AA of the Bombay Land Revenue Code and ultimately ordered the vesting of the property in question in favour of the Page 4 of 15 R/CR.MA/4974/2014 JUDGMENT Government. He also imposed a heavy penalty upon the respondent nos.111 for violation of the aforementioned provision. Such proceedings are questioned in appeal under the said code on a limited aspect of imposition of penalty upon the respondent nos.111.
6. It is the case of the respondent nos.111 that having come to know the exercise of fraud, whole proceedings of vesting the land in them by virtue of sale have been cancelled and the land in question is reverted to the applicants of Criminal Misc. Application aforesaid and that they have also undertaken not to claim any right, title or interest in the said property in this Special Criminal Application.
7. It is mainly urged that the respondents No 111 having relinquished and reverted all the rights vested in them by virtue of objected sale deed as also having filed an undertaking against their asserting any right ,title or interest in the aforementioned property, the offence does not exist. In absence of the mensrea, FIR cannot be lodged and therefore no useful purpose is going to be Page 5 of 15 R/CR.MA/4974/2014 JUDGMENT served by lodging such an FIR.
7.1 After issuance of interim injunction as aforesaid , Criminal Misc. Application 4974/2014 praying for its vacation on various grounds including suppression of material facts as also against the maintainability of the prayer of the petition, is instituted.
8. Learned counsel for the applicants addressed this Court on merits to point out the commission of serious offence by the respondent nos.111. The bone of contention is that on the basis of power of attorney of a dead person, the land in question was sought to be grabbed by the said respondents which not only constitutes an offence under various provisions of Indian Penal Code but also under the Prevention of Atrocities Act, the applicant being a member of Schedule Tribe. It was contended that relinquishment of rights and the undertaking came only after the statement of learned APP in aforementioned Special Criminal Application to the effect that the FIR is on the verge of being filed and thus. It is contended that respondent nos.111 did not Page 6 of 15 R/CR.MA/4974/2014 JUDGMENT repent for their acts but an attempt is made to save their skin. It was argued that the petition cannot be maintained inasmuch as the legal proceedings contemplated under the Code of Criminal Procedure must take its course on disclosure of cognizable offence. It was also contended that ignorance pleaded in ground B in relation to Special Criminal Application No. 199/2014 is in fact a false averment in view of the fact that one of the respondent nos.111 who all reside under the same roof had preferred an application for joinder as a party on which this Court did not pass any order on merits in view of the disposal of the main petition on the statement of the learned APP as aforesaid. The learned counsel would argue that investigation is a matter between the informant and the police and therefore, the contention that in absence of hearing of the respondent nos.111 the earlier petition was not maintainable, be not accepted by this Court.
9. It is further argued that the socalled cancellation of the sale deed happened only after one month of the order in Special Criminal Application No. 199/14 and once Page 7 of 15 R/CR.MA/4974/2014 JUDGMENT again such cancellation deed was executed with the title of dead persons, in favour of Dahiben respondent no. 6 who was the holder of the power of attorney. It was argued that, thus, mens rea in cancellation deed exists. It was argued that during his life time, Mangal Bhula had instituted tenancy proceedings wherein he was declared permanent tenant with restricted rights. He allegedly executed agreement to sale in the year 1981 which was in the knowledge of respondent nos.111. It is argued that thus their contention pleading ignorance of Mangal Bhula being the owner of the said property in the year 2010 should not be accepted. It was argued that in fact the land vested in the government by an order dated 7th January 2014 passed by the Deputy Collector and therefore, the question of relinquishment or execution of the cancellation deed as aforesaid was out of question.
10. It was argued that the main petition does not state that no offence is made out and thus, the petition to injunct registration of the FIR under Article 226 of the Constitution of India or under section 482 of the Criminal Procedure Code (for short, Cr.P.C) is not Page 8 of 15 R/CR.MA/4974/2014 JUDGMENT maintainable.
11. It is argued that respondent nos.111 who have pleaded mitigating circumstances in the main petition cannot be heard on that aspect since mitigating circumstances can only be pleaded after conviction and at the time of imposition of sentence. Reliance was placed on following authorities.
1. Brij Basi Lal Vs. State of Uttar Pradesh (1981) 2 SCC 584.
2. State of W.B Vs. Rashmoy Das and Ors.
(2000)1SCC 76
3. Anju Chaudhary Vs. State of Uttar Pradesh and Another (2013)6 SCC 384
4. Ravendra alias Hawaldar & Ors Vs. State of U.P & Ors. 2008 Cr.L.J 1986 It was also argued that respondent nos.111 are not entitled to leniency inasmuch as during the pendency of aforementioned petition, the applicants were pressurised to settle the matter.
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R/CR.MA/4974/2014 JUDGMENT
12. Learned APP has broadly supported the arguments advanced by learned counsel for the applicant. She argued that as per the procedure laid down for dealing with the complaints in respect of the properties, opinion is already expressed that the offence as urged by the applicants is made out and thus, the statement was made that the FIR is on the verge of being filed. Learned APP submitted that opinion of ACP that the cognizable offence is made out is under consideration by the Commissioner of Police.
13. Learned counsel for respondent nos.111 would contend that the petition is not for quashment of proposed FIR, but it is for injunction against registration of the FIR and coercive steps in the facts and circumstances narrated in the petition and that by way of interim relief no injunction against investigation or inquiry is asked for.
14. It was argued that the facts are gross. Having realised the exercise of the fraud, the incriminating circumstances were set at naught. It was argued that the Page 10 of 15 R/CR.MA/4974/2014 JUDGMENT property might have been purchased on some misconception or ill design but ultimately the clock was set at naught and no right title or interest or compensation is sought and thus, alleged offences ceases to exist.
15. It was argued that mere attempt to commit an offence sought to be attributed to respondent nos.111 is not punishable unlike other offences like the one under section 307 of Indian Penal Code and therefore, surrendering the tangible rights, by execution of the cancellation deed and execution of an undertaking is a relevant consideration by respondents no. 1 to 11 entertaining the petition at the instance of respondents no 1 to 11
16. It was argued, that Mangal Bhula was declared as protected tenant with restricted right on 6th February 1963 and paid purchase price in the year 1974 but name of original owner having "other rights" continued in the revenue records till 7th March 2011 and restricted rights of Mangal Bhula were recognised as owner as on 9th Page 11 of 15 R/CR.MA/4974/2014 JUDGMENT February 2011. It was thus, argued that till then Mangal Bhula's name did not appear in the revenue records.
17. It was argued that the mitigating circumstances can always be pressed into service at any point of time and not necessarily at the time of imposition of sentence and that in the peculiar circumstances of this case, when the transaction as aforesaid has been reversed, to avoid futile investigation and trial, such cancellations and reversion will constitute mitigating circumstances. It was argued that in the aforementioned background, genesis of crime has disappeared and therefore the respondent no. 111 has right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India and 482 of Criminal Procedure Code.
17.1. It was lastly contended that there was no question of defrauding the government as contended in the application by the applicants inasmuch as against the said order, an Appeal is already preferred within a period of limit prescribed in the order of Deputy Page 12 of 15 R/CR.MA/4974/2014 JUDGMENT Collector. It was argued that even in that petition the stand similar to the one in the main petition is taken.
18. Having noticed the fact that the petition is at a preliminary stage and observations of this Court may prejudice rights/ defence of the parties, this Court would not like to answer the submissions on factual aspects of the case in greater detail. Suffice it to say that the Criminal Procedure Code lays down, in detail, a procedure to deal with the information lodged with the police. Under the said code the police is authorised to investigate the matter and make appropriate report to the magistrate concerned. Such report may state the commission of crime in which case the magistrate may follow the necessary procedure under the Code of criminal Procedure. Similarly, the report may indicate that no offence was committed in which case again the Magistrate may follow the necessary procedure under the Code of Criminal Procedure. Therefore, irrespective of alleged mitigating circrumstances movement of criminal machinery under Criminal Procedure Code cannot be thwarted at the threshhold by injuncting registeration of Page 13 of 15 R/CR.MA/4974/2014 JUDGMENT FIR itself.
19. As regards the question of coercive steps is concerned, again it is for the police machinery to address it inasmuch as discretion is conferred upon such machinery under the Cr.P.C and thus, such powers have to be exercised keeping in view the facts and circumstances of each individual case and exercise of such power by this Court preregistration of FIR would be unwarranted.
20. It is however, clarified that observations made in this order are only for the purpose of deciding Criminal Misc. Application No. 4074/2014 and none of the authorities would be influenced by any of such observations and would deal with the matter independently in accordance with law.
21. In above view of the matter Criminal Misc. Application No. 4974 of 2014 succeeds. Ad interim relief granted by this Court in Special Criminal Application No. 1172 /2014 on 27th March 2014 is vacated. Rule is Page 14 of 15 R/CR.MA/4974/2014 JUDGMENT made absolute. No costs.
(G.R.UDHWANI, J.) mary Page 15 of 15