Gujarat High Court
Vishnubhai Khodidas Patel vs State Of Gujarat on 13 September, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/18038/2016 ORDER DATED: 13/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18038 of 2016
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VISHNUBHAI KHODIDAS PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR AMRISH K PANDYA(3219) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MEETKUMAR J PANDIT(9479) for the Respondent(s) No.
2.1,2.2,2.3
MS M D MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/09/2022
ORAL ORDER
1. By way of this application, the applicant has prayed for the following reliefs :-
"(A) YOUR LORDSHIPS may be pleased to admit and allow this application and further be pleased to quash and set aside the impugned F.I.R. being I.C.R. No.31 of 2016 registered before the Bopal Police Station, Ahmedabad Rural for the offences punishable under Section 406, 420, 465, 467, 468, 471 and 114 of the Indian Penal Page 1 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 Code (Annexure-A) in the interest of justice.
(B) Pending hearing and final disposal of the application, be pleased to stat the further investigation and proceedings in connection with F.I.R. being I.C.R. No.31 of 2016 registered before the Bopal Police Station, Ahmedabad Rural for the offences punishable under Section 406, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code (Annexure-A) in the interest of justice.
(C) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed, fit, just and proper in the interest of justice.
8(AA) YOUR LORDSHIPS may be pleased to quash and set aside the F.I.R., Chargesheet and further proceedings of the Criminal Case No.8941/2016 pending before Page 2 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 the Ld. Chief Judicial Magistrate, Ahmedabad Rural in connection with F.I.R. being I.C.R. No. 31 of 2016 registered before Bopal Police Station, Ahmedabad (Rural) on 25/03/2016 for the offences punishable under section 406, 420, 465, 467, 468, 471 and 114 of the IPC in the interest of justice.
(BB) Pending hearing and final disposal of the application, be pleased to stay the further proceedings of the Criminal Case No.8941/2016 pending before the Ld. Cheif Judicial Magistrate, Ahmedabad Rural in connection with F.I.R. being I.C.R. No. 31 of 2016 registered before Bopal Police Station, Ahmedabad (Rural) on 25/03/2016 for the offences punishable under section 406, 420, 465, 467, 468, 471 and 114 of the IPC in the interest of justice. 8(CC) Your Lordships may be pleased to direct the respondent no.1 to initiate the Page 3 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 disciplinary proceedings against the investing officer B.S. Vyas for flouting the order passed by this Hon'ble Court dated 26/07/2016 and 01/08/2016 in the present application in the interest of justice."
2. The brief facts as stated by the applicant herein are that the complainant's mother named Kantaben Khodidas Patel, expired on 15/01/1987 at Saraspur and Khodidas Damodardas Patel was her father. Khodidas Damodardas Patel was maternal grandfather of the complainant who was the owner of the ancestral land bearing survey Nos. 10 paiki, 13, 552, 723, 774, 769, 191 and 871 situated at Village Ghuma.
The maternal uncles of the complainant applied for mutation of the succession Entry no.2989 and 2990 in the revenue records and in this regard a false pedigree came to be prepared by not including the name of complainant's mother as a legal heir of Khodidas Damodardas Page 4 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 Patel. It is further stated by the complainant that at that time, the leaders of Village named (1) Tribhovanbhai Pochabhai and (2) Ranchodbhai Madhavbhai made statement before the Talati on 02/02/1975, and stated that Khodabhai Damabhai had expired on 03/05/1974 and he has two surviving sons named Ramabhai Khodabhai and Vishnubhai Khodabhai as his legal heirs and his one son Naranbhai has expired and his is having one minor son Rameshbhai Naranbhai and widow Shantaben Naranbhai as his legal heirs and Khodabhai has no other legal heirs and thereby in the revenue records, the name of only 1) Rambhai Khodidas 2) Vishnubhai Khodidas 3) minor Rameshbhai Naranbhai and 4) Shantaben Wd/o Naranbhai Khodidas was mutated in the revenue records.
It is stated by the complainant that Shantaben Wd/o. Naranbhai has expired and the name of his mother Kantaben was intentionally not mutated in the revenue records and Page 5 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 thereafter partition of the said lands took place amongst the co-owners and entry to that effect was mutated in the revenue record by mutation entry No.3684. Thereafter the maternal uncles of the complainant 1) Prahladbhai Dayabhai, 2) Muljibhai Dayabhai and 3) Ranchodbhai Dayabhai sold the land bearing survey No. 769 to Vimalkumar Pravinchandra by registered sale deed No. 8648/93 on 20/04/1993. Further the land bearing survey Nos. 175, 195, 196/1 were sold to Savjibhai Haribhai Patel and Kantaben Savajibhai Patel by registered sale deed No.27439/93 on 27/12/1993.
The complainant states that the land bearing Survey No.454 was sold by registered sale deed No.16864/92, dated 17/07/1992 to Ganpatbhai Dahyabhai Patel and the land bearing survey No.13 was sold by registered sale deed No.2405/87 dated 12/02/1987 to the partner of Shanti Construction Ratilal Mangaldas Shah. The land bearing survey Nos. 616, Block No.774 sold Page 6 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 to Dilipbhai Shambhubhai Patel by registered sale deed No.208/06 on 09/01/2006 and the land bearing Survey No.871 was sold to partners of Prerna Construction - Rajeshbhai Ramubhai Patel and Vikasbhai Bansilal Shah by registered sale deed No.7347 on 11/07/2007 and the land of survey No.10 paiki was sold after dividing the same in different plots.
3. It is the case of the complainant that accused on the basis of false pedigree did not mention the name of the mother of the complainant Kantaben and has created a false pedigree and mutated their names in the revenue records vide entry no. 2989 and 2990 and thereby sold the land to different persons and committed the alleged offence and hence the present complaint, which is the subject matter of the present application.
4. The applicant herein viz. Vishnubhai Khodidas Patel is the son of Khodidas Damodardas Patel. The applicant herein has placed on record a Page 7 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 pedigree at page 63/A of the compilation, which is in dispute. It appears that it was at the instance of deceased Ramabhai Khodabhai. There are two witness of the said disputed pedigree i.e. accused Nos.4 and 5 viz. (1) Tribhovanbhai Pochabhai and (2) Ranchodbhai Madhavbhai, who signed as witnesses in the said pedigree.
The applicant herein being one of the legal heirs of deceased Khodidas Damodardas Patel, the name of the applicant was forming a part of pedigree. The record produced by Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent - State clearly shows that the pedigree at the instance of Ramabhai Khodabhai who has expired. The two witnesses to the said pedigree i.e. (1) Tribhovanbhai Pochabhai and (2) Ranchodbhai Madhavbhai have also expired.
5. During the course of hearing and also forming a part of the record are the details of the civil proceedings which are pending between the Page 8 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 parties and which are instituted at the instance of the complainant herein. It appears that the Regular Civil Suit No.66 of 2012, the suit is filed for declaration and permanent injunction. The prayers are duly produced at page 34 para 9 which reads thus :-
"(9) By filing this suit, we pray for the relief that,
(a) Since the non-agricultural land admeasuring He. Are. Sq. M. 0-44-52 of Block / Survey No.769 moje Ghuma, taluka Daskroi, district and sub-district Ahmedabad having assessment value of Rs.2226-00 is an ancestral land of us -
the plaintiffs and we - the plaintiffs have a right and share in the said property, kindly declare that we - the plaintiffs are independent owner and occupant of the suit land by inheritance.
(b) With respect to the non- Page 9 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022
agricultural land admeasuring He. Are. Sq. M. 0-44-52 of Block / Survey No.769 moje Ghuma, taluka Daskroi, district and sub- district Ahmedabad, kindly issue a permanent injunction order against the defendants restraining the defendants, their relatives, servants, agents, power of attorneys and any third party from selling or transferring the said property and creating encumbrance or making kutcha or pucca construction on the said property and making sale transaction with any other party or committing any act that may cause damage to title and interest of us - the plaintiffs with respect to the said property since the property is ancestral property of us - the plaintiffs.
(c) Kindly grant any other relief as it may deem fit and proper."
6. Mr. Premal Nanavati, the learned advocate with Mr. Meetkumar Pandit, the learned advocate Page 10 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 appearing for the respondent No.2 stated that the chargesheet is filed. The applicant be relegated to avail the statutory remedy available under the law.
7. Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent State has placed all the documents on record and has candidly submitted that the applicant herein is neither the applicant nor a witness in the said pedigree which is duly produced on record at page 26.
8. POSITION OF LAW :-
"In State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604, the Apex Court has 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 Page 11 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 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, accompanying the F.I.R. do not disclose a cognizable Page 12 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 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;
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(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 concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is
manifestly attended with malafide
and/or where the proceeding is
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R/CR.MA/18038/2016 ORDER DATED: 13/09/2022
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."
9. In view of this Court, in the facts of the present case the applicant herein cannot be saddled with criminal liability and also in view of the fact that no offences punishable as alleged under Sections 406, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code can be said to be attributed qua the applicant herein. The civil proceedings are pending at large before the appropriate civil Court. However, no case is made out to continue the proceedings against the present applicant. Accordingly, FIR being I.C.R. No.31 of 2016 registered before Bopal Police Station, Ahmedabad (Rural) on 25.03.2016 for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code and consequently proceedings arising out of the same stands terminated. Needless to say Page 15 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022 R/CR.MA/18038/2016 ORDER DATED: 13/09/2022 passing of the order in the present proceedings will not in any manner affect the rights of the parties and in the civil proceedings which are pending between the parties.
10. The present application stands disposed of accordingly.
(VAIBHAVI D. NANAVATI,J) Pallavi Page 16 of 16 Downloaded on : Sat Sep 17 20:16:09 IST 2022