Gujarat High Court
Dipak Pravinchandra Vyas vs State Of Gujarat on 17 August, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/13368/2014 ORDER DATED: 17/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13368 of 2014
With
CRIMINAL MISC.APPLICATION (FOR AMENDMENT) NO. 1 of 2021
In R/CRIMINAL MISC.APPLICATION NO. 13368 of 2014
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DIPAK PRAVINCHANDRA VYAS & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR AD SHAH(733) for the Applicant(s) No. 1,2,3
MR VIRAT G POPAT(3710) for the Respondent(s) No. 2
Mr. H.K.Patel, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 17/08/2021
ORAL ORDER
1. Rule returnable forthwith. Mr. Virat Popat, learned advocate waives service of notice of rule for and on behalf of the respondent No.2 and Mr. H.K.Patel, learned APP waives service of notice of rule for and on behalf of the respondent -State.
2. By way of this application, the applicants have prayed to quash the complaint being I-C.R.No.140 of 2011 registered with Mandvi Police Station for the offence punishable under Sections 427, 447, 506(2) r/w. 114 of IPC and subsequent proceedings thereto.
2.1 The short facts leading to this petition are as under:-
Respondent No.2 namely Narpatsinh Harisinh Vashiya, residing at Page 1 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Darbar Faliya, Village Kosadi, Taluka Mandvi lodged a complaint against accused persons (present applicant) on 29th September, 2011 alleging that during 25.11.2011 to 29.11.2011, the accused persons came in company of 10 other persons at agricultural land bearing Block Nos.
138, 139, 212, 232, and 237 at village Umarsadi. As per the complaint, he had been cultivating this land from 1973 and he had obtained tenancy rights from the owner Dorabji Hormasji Munshi. It is further alleged in the complaint that similarly one Parsottambhai Lalabhai Prajapati had taken land bearing Block No. 150, 162, 165 and 167 under tenancy right from Dorabji Hormsji Munshi. That, original owner- Dorabji Munshi had appointed three executors for administration of the said land and therefore, they were cultivating in these lands since 1973 onwards as tenants. It is alleged in the complaint that before 2 ½ years, the Executors informed for sale of this land, and hence, proceedings before the Mamlatdar's Office, Mandvi were initiated and they were pending. It is alleged in the complaint that the complainant had filed Special Civil Suit No. 24 of 2009 in the Court of Principal Senior Civil Judge, Bardoli and prayed for permanent injunction against Bhikhaji Ratanji Munshi and Jarin Sham Vadvadiya. That, another Special Civil Suit No. 25 of 2009 came to be filed in respect to the land bearing Block No. 150, 162, 165 and 167 situated at Umarsadi, Taluka Mandvi for permanent injunction against Bhikhaji Ratanji Munshi and Jarin Sham Vadvadiya before the Page 2 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Court of Principal Senior Civil Judge, Bardoli.. That, the applicant -Jarin Sham Vadvadiya had also instituted Special Civil Suit No. 1 of 2010 in the Court of Civil Judge (S.D), Bardoli against Bhikhaji Ratanji Munshi.
Learned Principal Senior Civil Judge, in both the Special Civil Suits, dismissed the application (Exh.5) on merits by order dated 5.11.2011. As alleged in the complaint on 25th November, 2011 at about 5.00 p.m. the complainant and his brother were cultivating their land, at that time accused persons came to their land and threatened them saying that they were owner of the disputed land. Complainant was restricted to enter into the disputed land saying that if they would enter into the said land, they will kill them. Thereafter, complainant tried to enter into the disputed land up to 3.00 p.m. on the very same day but, he was threatened by the accused persons in company of 2 to 3 persons having stick of wooden.
The crops lying in the land were destroyed and damaged to the tune of Rs. 5,00,000/-. That, accused persons trespassed in the land under the possession of the complainant and damaged crops of more than Rs.5,70,000/- and threatened to kill them. Hence, this complaint was lodged by the complainant. Present petition is filed by the applicants-
accused persons under Section 482 of Cr.P.C., 1973 on 25th August, 2014, whereas Notice was issued by this Court [Coram : Mr. R.M.Chhaya, J] .
3. Heard Mr. A.D.Shah, learned advocate for the applicants and Mr. Page 3 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Virat G.Popat, learned advocate for the respondent No.2 and Mr. H.K.Patel, learned APP for the respondent -State.
4. Learned advocate for the applicants submits that in Civil Suit i.e. Special Civil Suit No. 24 of 2009, the Civil Court has dismissed ad- interim injunction application (exh.5) observing that defendant No.1 is in possession of disputed land and even yields of said lands have been had by defendant No.1 and all the deponents have stated that their lands are near the lands of disputed land. Statement of defendant No.1 was supported by deponents regarding disputed land, as they have filed their affidavits in support of defendant No.1 and they have been produced. It is further submitted that with malafide intention, present complaint was filed by the respondent No.2 . That, there is no documentary evidence in the nature of Village Form No.7 and 12 since 1973 till initiation of Civil proceedings in the revenue record .That, in the revenue record, name of all the three executors were shown and also shown that holders of the land have been cultivating the land personally. That, complainant had abused the process of investigating machinery with a view to bring pressure on the applicants. That, no offence is made out against the present applicants for the offence punishable under Sections. 427, 447, 506(2) r/w. 114 of IPC, as, there are no specific averments made in the complaint. In support of his arguments, learned advocate appearing for Page 4 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 the applicants has relied upon the decision of Privy Council dated 25th July, 1950 Privy Council Appeal No. 38 of 1947 as well as decision of the Hon'ble Apex Court rendered in case of Anand Kumar Mohattaa and Anr. Vs. State (Govt. of NCT of Delhi) Department of Home and Anr. reported in AIR 2019 SC 210 particularly in para 7 which is reproduced hereunder:-
[7] The offence of criminal trespass is defined by S.427 Penal Code, in the following terms:-
"Whoever enters into or upon properly in the occupation of another with intent to commit an offence, or to intimidate, insult or annoy any person in occupation on such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
5. Per contra, learned advocate appearing for the respondent No.2 submits that prima facie case, as alleged in the complaint, is clearly made out by the prosecution. That, after registering the complaint against present applicants, investigating agency had carried out investigation and after collecting the evidence, the charge-sheet was filed against the accused persons who are before this Court. That, before trial Court, discharge application was preferred by the applicants which was dismissed by the Court below vide order dated 24 th May, 2021. That applicants have not challenged the said order and by way of filing this application, u/s. 482 of Cr.P.C., this Court can not decide the said issue by quashing the complaint. That, criminal trespass is clearly made by the Page 5 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 applicants. Ld. Advocate has referred the panchnama of the land at Page 84 and argued that complainant himself was in possession of the disputed land. He has further referred the Special Civil Suit No. 1 of 2010 filed by Jarin Sham Vadvadiya against Bhikhaji Ratanji Munshi before the Court of Civil Judge (S.D.) Bardoli praying for possession of the disputed land and mense profit. That, charge-sheet was filed after collecting the evidence against the present applicants. It is urged that this Court may not exercise the powers under Section 482 of Cr. P.C as discharge application was rejected by the Court below. Hence, it was requested by learned advocate appearing for the respondent No. 2 to dismiss the present application.
6. Learned APP for the respondent -State has also supported the arguments advanced by learned advocate for the respondent No.2 and submitted that once discharge application preferred by the applicants was dismissed on 24th May, 2021 as well as charge-sheet was also filed after completing investigation, this Court may not exercise the power under Section 482 of Cr.P.C. That, prima facie offence is made out by the prosecution against the present applicants, and therefore, this application is required to be dismissed.
7. Having gone through the facts of the present case and submissions Page 6 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 made by learned advocates appearing for the respective parties as well as learned APP for the respondent-State and evidence produced on record, it appears from the particular averments made in the complaint, that disputed land was cultivated by the complainant and at that time, present applicants along with other 10-12 persons came into the land and prevented him from entering into the said land. They also damaged the crops lying in the field to the tune of Rs.5,70,000/- and threat was given to kill him. It is not in dispute that this Court has not granted any interim relief or stay the proceedings pending before the trial Court, when the petition was filed in the year 2014. Investigation is completed and charge-sheet was also filed. It is not in dispute that during the pendency of this application, discharge application filed before the Court below was dismissed vide order dated 24th May, 2021. From the contents of the complaint, it appears that civil dispute is pending in connection with the said disputed land before the Civil Court. Interim injunction was sought by the plaintiff namely Narpatsinh Harisinh Vashiya in Special Civil Suit No. 24 of 2009 wherein, application at Exh. 5 was decided by the Civil Court. This Court would like to refer the material portion of the observations made by the Civil Court in the order which reads as under:
"16. Defendant has filed letter which is written by defendant No.1, wherein, it has been stated that conversion to sell the land which is stated in Will of Dorabji is going on and wherever deals become finalized, that time you are intimated. The defendant No.2 also filed reply of above letter, which is given to defendant No.1 and wherein, it appears that defendant No.1 is permitted to continue with deal as to sell of the said property of Will.Page 7 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022
R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Defendant No.2 has produced various revenue receipts, but nowhere it has been stated that revenue are being paid by the present plaintiff. On the contrary, names of defendant No.1 appears in most of the receipts. Defendant No.2 has filed affidavit of Mohanbhai Lallubhai, Mukeshbhai Chhanjibhai, Kiranbhai Radagabhai Rameshbhai Chhaniyabhai, Nanduben Badharsinh Bhanabhai Kanjibhai, Champaksinh Pravinsinh, Chiragbhai Chhaniyabhai, Chimanbhai Chhaniyabhai, Bhikhabhai Bhanabhai, Zinabhai Gachhabhai, Nitesh Natvarbhai, Durlabhbhai Divalabhai, Chhaganbhai Chhamjibhai, Sanmukhbhai Rajeshbhai, Rameshbhai Makabhai Chaudhari, Vinodbhai Babubhai Chaudhari, Hirabhai Ukabhai Chaudhari, Nareshbhai Bhimabhai Chaudhari, Natubhai Nathubhai Chaudhari, Macchabhai Pachhlabhai Chaudhari, Bhavsinhbhai Kamchhabhai Chaudhari, Samabhai Chhaganbhai Chaudhari, Sunilbhai Lachhabhai Chaudhari, Champaben Virsinh, Ramanbhai Bhulabhai Chaudhari, Vadsibhai Jagabhai Chaudhari, Kotlabhai Kamchhabhai Chaudhari, Kasturben Rajeshbhai, Ishwarbhai Dasabhai, Nagjibhai Thakarsinh, Vasantbhai Dhanjibhai, Natvarsinh Pahadsinh, Pravinsinh Vajesih, Ghusabhai Biladabhai, Shankerbhai Ghumajibhai ,Kachhabhai Chhalabhai, Rusingbhai Virjibhai, Roshanben vide mark 36/60, 36/64, 36/67, 36/71, 36/74, 36/77, 36/81, 36/84, 36/87, 36/90, 36/93, 36/96, 36/99, 36/102, 36/105, 36/108, 36/111, 36/114, 36/117, 36/120, 36/123, 36/125, 36/128, 36/132, 36/135, 36/138, 36/141, 36/144, 36/147, 36/150, 36/153, 36/155, 36/159, 36/160, 36/161, 36/164, 36/165, 36/169, 36/172, respectively and if we see all the affidavits then it appears that all the deponents have stated that defendant No.1 has been in possession of disputed land and even yields of the said lands have been had by defendant No.1 and all the deponents have stated that their lands are near the lands of the disputed land and even all the deponents have affixed their photographs on their affidavits.
So plaintiff has placed his reliance on reply of defendant No.1 and two affidavits which are filed in favour of the plaintiff to prove his prima facie possession. Plaintiff had pleaded in his plaint that defendant No.2 has published notice on 30/9/2008 and therefore, plaintiff has filed tenancy case. But if we see statement which was given before the Surveyor by defendant No.1, then it is given on February, 14th and 15th 2000 and on February, 16th and 17th 2000 . So in the year 2000, if possession of the plaintiff would have there, then defendant No.1 definitely would have stated in his statement, which is given before the Surveyor that possession is of plaintiff. Herein, defendant No.1 has not filed any affidavit stated that he has not given any application to get land measured through D.L.R. even he has not denied his signature which appears on application as well as on statement. On the contrary, Chhibabhai who has also given statement with defendant No.1 has on oath has stated that he was present when measurement was carried out and he was called by defendant No.1 and he has signed the statement which was given before the Surveyor and even Surveyor has also noted the possession of the defendant No.1 and so many peoples have stated the affidavit that possession of the disputed land has been lying with defendant No.1 since long. Even defendant has produced one inland letter, which is written to Alamai by defendant No.1, wherein, he has not stated anything as to possession of defendant No.1.Page 8 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022
R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Plaintiff has produced Form No.7 and 12 of disputed land vide marked No. 3/1 to 3/6 wherein also in Form No. 7 and 12 name of all three executors have been shown in mark 3/1 to 3/4,while block bearing No. 235 and 237 in Form No. 7 & 12 name of defendant No.2 and Dorabji have been stated in all Form No. 7 & 12, it has been stated that the holders of the land have been cultivating the land personally. So, herein, Form No.7 & 12 are being prepared by the Government officer and even statement of defendant No.1 had been taken by one of the Government employee , while discharging his official duty, so considering the all above stated material, it prima facie proves that plaintiff is not in possession of the disputed land and if plaintiff would have in possession of disputed land, then definitely Talati-cum-Mantri would have entered name of plaintiff in Form No. 12 and same time, if plaintiff would have in possession then definitely defendant No.1 would have stated before the Surveyor that plaintiff is in possession and total 2-3 days procedure for carry out the measurement has been conducted by the Surveyor and if plaintiff would have in possession then definitely he would have remained present there and he would have stated before Surveyor that he is in possession since long and same time Chhibabhai also would have stated that plaintiff is in possession.
8. Further it appears that, the Co.ordinate Bench of this Court [Coram : Ms.Vaibhavi D. Nanavati,J] has passed the order in Criminal Misc. Application No. 13368 of 2014 on 10.3.2021, the relevant paragraph reads as under :-
3. Having gone through the documents which are produced by learned Advocates for the parties, it appears that a Civil Suit is instituted by the accused No.3 being Civil Suit No.1/2010 for possession and permanent injunction. Another Civil Suit is instituted by the complainant being Civil Suit No.24/2009 seeking permanent injunction. Prima-facie, it appears that it is a civil dispute and the parties have relegated themselves to criminal remedy on a trivial issue of tress-passing.
4. The Court is of the opinion that when there is a civil remedy available, the parties may agitate their grievances in accordance with the civil remedy and it is not in the interest of giving a criminal colour to a civil remedy.
This Court would like to refer the defination of Section 441 of Indian Penal Code 1986 which reads as under :-
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R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Privy Council in Privy Council Appeal No. 38 of 1947, while interpreting Section 427 of Indian Penal Code has observed in para 12 which reads as under :
12. Section 427 does not make every trespass a criminal offence. It is confined to case in which the trespass is committed with particular intention and the intention specify indicates that the class of trespass to be brought with the criminal law is one calculated to cause a breach of peace. Their Lordships are satisfied that the section was not intended to provide a cheap and expeditious method for enforcing a civil right . It is to be noted that the Section deals with occupation which is a matter of fact and not with possession which may be actual or constructive and may involve matter of law. Para 1 of Section comes into operation when a trespasser enters land in the occupation of another with the intent specified and para applies when the entry is lawfully but becomes unlawful . Example when the entry is made on the invitation of the occupier and there is refusal to leave when the invitation is withdrawn. But, in either case, there must be an occupier whose occupation is interfered with and whom it is intended to insult, intimidate or annoy{unless the intent to commit an offence} . Section has no application were the facts of occupation is constant, the only change being in its character, as where a tenant holds over after the expiration of his tenancy.
Hon'ble Apex Court in Anandkumar Mahatta and Anr. (supra) wherein, it is observed as under:-
7. 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.
This was a fit case for the High Court to exercise its inherent power under Section 482 of Cr.P.C to quash the FIR.
The other decision rendered in case of State of Karnataka Vs. L.Muniswamy and others reported in 1977(2) SCC 699 which reads as under:-
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R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 In the, exercise of this. whole some power, the High Court is entitled to quash a proceeding if it comes to the conclu- sion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salu- tary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.
9. From the contents of the FIR itself and the order passed by the Civil Court in Special Civil Suit No. 24 of 2009 and during the pendency of the proceedings before this Court, charge-sheet was filed. However, Hon'ble Apex Court found that prosecution was malafide, untenable and solely intended to harass the Appellants and Impugned complaint was quashed. Here also similar situation is there from the avements made in the complaint. From the record, it appears that there is dispute of possession as raised by the complainant before the Civil Court also and it has been rejected by the Court below. Dispute raised in the complaint can be decided by the Civil Court only. Proceedings initiated by the respondent No.2 by filing criminal case is required to be quashed and set aside. This application is hereby allowed. Impugned complaint i.e. C.R.No.I-140 of 2011 registered with Mandvi Police Station for the offences punishable under Section 427, 447, 506(2) r/w. 114 of IPC and subsequent proceedings thereto is hereby quashed and set aside.
It is clarified that observation made in the present order would not Page 11 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022 R/CR.MA/13368/2014 ORDER DATED: 17/08/2021 affect the rights of the either side to raise their grievance in the Civil Court where Civil Court will decide the question in accordance with law. Rule is made absolute to the aforesaid extent.
ORDER IN CRIMINAL MISC. APPLICATION NO. 1 OF 20201 In view of the order passed in the main matter i.e. Criminal Misc. Application No. 13368 of 2014, this application does not survive and stands disposed of accordingly.
(B.N. KARIA, J) BEENA SHAH Page 12 of 12 Downloaded on : Sun Jan 16 08:25:29 IST 2022