Gujarat High Court
Joshi Dharmishtaben Arvindkumar vs State Of Gujarat on 14 July, 2023
NEUTRAL CITATION
R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16334 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JOSHI DHARMISHTABEN ARVINDKUMAR & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Applicant(s) No. 1,2
MR L.B.DABHI, APP for the Respondent(s) No. 1
HASURKAR ASSOCIATES(6872) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 14/07/2023
ORAL JUDGMENT
1. This application is filed by the applicants under Section 482 of the Code of Criminal Procedure invoking the inherent jurisdiction of this Court to quash and set-aside order dated 19.6.2013 and the proceedings initiated pursuant to the Page 1 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined Criminal Inquiry Case No.10 of 2013 registered in the Court of learned Judicial Magistrate, First Class, Radhanpur.
2. Heard learned advocate Mr.D.K.Puj for the applicants, learned advocate Mr.Hasurkar for the respondent no.2 - complainant and learned APP Mr.L.B.Dabhi for the respondent no.1 - State.
3. Learned advocate appearing for the applicants has submitted that the present application is filed for quashing the Criminal Inquiry Case No.10 of 2013 preferred against the present applicants. He has submitted that earlier also, on the same subject matter, one Mr.Ibrahim Hussainbhai Shaikh had filed Inquiry Case No.35 of 2011 against the applicants and other persons and the learned Magistrate was pleased to direct for the investigation under Section 202 of the Code of Criminal Procedure. Thereafter, the Police Inspector had submitted a detailed report after carrying out the investigation. The Inquiry Case No.35 of 2011 is still pending. Meanwhile, the present respondent no.2 filed a second Criminal Inquiry Case No.10 of 2013 against the applicants on the same subject matter, wherein it has been stated that the applicants have carried out illegal Page 2 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined construction and have encroached upon a Government land. The said complaint is filed by the respondent no.2 though he is not the owner or occupier of the land or authorized by the Nagarpalika in this behalf. It is submitted that with a view to harass the applicants and to abuse the process of law and with a malafide intention, the respondent no.2 - complainant has filed the present complaint and based on the said complaint, the learned Magistrate has passed an order of investigation under Section 202 of the Code of Criminal Procedure. It is submitted that even though civil proceedings are pending before the civil court, the learned Magistrate has passed the order of inquiry under Section 202 of the Code. The dispute is purely of a civil nature and it is with regard to the title and ownership of the land in question. Hence, the learned advocate has requested this Court to allow the present application by quashing and setting aside the order dated 19.6.2013 and the proceedings initiated pursuant to the Criminal Inquiry Case No.10 of 2013 by the learned Judicial Magistrate, First Class, Radhanpur.
4. Per contra, learned APP Mr.L.B.Dabhi has vehemently opposed the present application and has submitted that both the subject matters are different. The case of hand is different from Page 3 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined the earlier proceedings. In the earlier proceedings, even though inquiry was directed to be carried out and to submit the report, no proper investigation was carried out and the report was also not submitted. In the present case, the land is of the ownership of the Government and the applicants have made encroachment upon the said land and they are claiming ownership and possession of the said land. They have erected illegal construction over the said land. Hence, criminal proceedings came to be filed. So far as the earlier proceedings is concerned, the same is with respect to a fraudulent document of gift/hiba and the said transaction is challenged by the complainant of the Inquiry Case No.35 of 2011. It is submitted that based on the said fraudulent transaction, the present applicants entered into further proceedings and they have forged and fabricated the document and tampered with the Government record. Hence, due to different set of facts and transactions, investigation is required to be carried out and order in this regard is required to be produced on record and then only the Magistrate shall have to take a call. There is no prejudice at all to the present applicants on merely filing a complaint. Hence, he requested this Court to dismiss the present application.
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5. I have given my thoughtful consideration qua the arguments canvassed by both the sides. The applicants have filed the present application for quashing and setting aside the order dated 19.6.2013 as well as the proceedings initiated pursuant to the Criminal Inquiry Case No.10 of 2013. It is the case of the applicants that the respondent no.2 - complainant has nothing to do with the subject matter of City Survey No.6654. The said property was in the name of Pathan Rasulkhan Kadarkhan Malik whose name was entered into the revenue record on 7.6.2011. The present applicants have purchased the land admeasuring 300 sq.meters of City Survey No.6654 by way of a registered sale deed from Pathan Rasulkhan Kadarkhan Malik for a sale consideration of Rs.4,90,000=00. The present applicants have also purchased two other lands admeasuring 50 sq.meters and 357.5 sq.meters respectively of City Survey No.6654 by way of a registered sale deed for a sale consideration of Rs.50,000=00 and Rs.1,00,000=00 respectively. Thus, the applicants are the legal owners and occupiers of the said land and civil litigation qua the title and ownership is pending before the civil court. The respondent no.2 - complainant is neither an owner or occupier of the land nor authorized by the Municipality to lodge the complaint. Page 5 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023
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6. From the record, it emerges that one Mr.Ibrahim Hussainbhai Shaikh has filed one criminal complaint in the Court of the learned Judicial Magistrate, First Class, Radhanpur, against the present applicants with regard to the land in question, which was registered as Inquiry Case No.35 of 2011. Thereafter, the police had submitted two reports dated 7.5.2012 and 21.1.2013. The said inquiry is still pending before the learned Magistrate and the impugned complaint came to be filed by the present respondent no.2, being Criminal Inquiry Case No.10 of 2013, wherein also, the learned Magistrate, vide order dated 12.3.2013, has directed the Police Inspector, Radhanpur, to file a detailed report. While, in the present case, the learned Magistrate has passed order dated 19.6.2013 to submit a detailed report within a period of 30 days. Thus, in the Inquiry Case No.35 of 2011 and the Criminal Inquiry Case No.10 of 2013, the learned Magistrate has passed order to submit report. The order was passed under Section 202 of the Code.
7. The respondent no.2 has filed the criminal complaint before the learned Magistrate, First Class, Radhanpur, which is produced at Annexure-A to the application. He is the Vice Page 6 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined President of the Radhanpur Municipal Burough and in the capacity as a member of the Nagarpalika, he has filed the complaint, wherein it is alleged that the applicants have fabricated the document dated 28.5.2011 and tampered with the Government record. Though the Survey No.6654 does not belong to the applicants, they have made encroachment upon the land and made illegal construction over the said Government land. Hence, civil suit being Regular Civil Suit No.5 of 2013 came to be filed and the learned Civil Judge was pleased to grant injunction against the present applicants.
Further, it is alleged by the complainant that the City Survey Nos.6615 to 6624 are of the ownership of the Government and out of the said land of Survey Nos.6615 to 6620, the land admeasuring 178.97 sq.meters of the Government land has been encroached upon by tampering with the Government record. Based on the aforesaid allegation, the complaint came to be filed for the offences under Sections 464, 465, 467, 468, 469, 471, 474, 477 and 120B of the Indian Penal Code. The learned Magistrate, thereafter, passed an order under Section 210 of the Code below Exh.1 to the said complaint staying the proceedings and directing to submit a report on or Page 7 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined before 25.3.2013. Pursuant to the said order, the Police Inspector Shri J.J.Chaudhari submitted his report, which is produced at Annexure-D, wherein he has stated that earlier for the same subject matter, the Inquiry Case No.35 of 2011 was filed and report was also submitted on 23.11.2012. It was further stated that civil proceedings and the identity of the survey number are pending. Hence, no offence has been registered pursuant to the earlier Inquiry Case No.35 of 2011 but learned Magistrate has not accepted the said report and directed to further inquire into the matter and submit the report.
8. On bare perusal of the earlier Inquiry Case No.35 of 2011, it appears that it was filed by one Mr.Ibrahim Hussainbhai Shaikh, wherein he has stated that the property bearing Survey Nos.6615, 6616 and 6617 are of the ownership of Government and the complainant was having the possession and the accused no.4 had threatened to vacate the possession of the said property. The disputed property being land admeasuring 21,999 sq.meters of City Survey No.6654 was originally belonged to Nawab Saheb Murtujakhanji Jorawarkhanji Babi and being the daughter of Nawab Saheb, the said land came to the share of Bima Saheb Noorjahanbakhte Babi. After her death, one Page 8 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined bakshish/gift deed has been fabricated on the strength of a stamp paper and the so-called stamp paper is only on a 20 'naya' paise stamp, without mentioning any specific city survey and the identification of the property is mentioned only as the land admeasuring 300 sq.meters of Lalbaugh. On the said document, two persons who put their signatures as witnesses have been expired and their signatures is also forged. Based on the said fraudulent gift deed 39 years after the demise of the parties to the gift deed, the forged entry being made in the revenue record and then without any authorization, the said property has been sold to the present applicants on 28.5.2011 and entry was mutated in the revenue record. Hence, the complaint came to be filed and the learned Magistrate has passed an order of inquiry under Section 202 of the Code. Earlier, in the said complaint, Police Inspector Shri J.J.Chaudhari had submitted reports dated 7.5.2012 and 23.11.2012. As the first report submitted by the police was not complete and satisfactory, the learned Magistrate passed another order to submit a further report. Pursuant to the said order, the second report was submitted on 23.11.2012 by the said Police Inspector, wherein it is clearly stated that the land in question, i.e. Survey No.6654, is different from the subject land. Page 9 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023
NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined In the year 1967-68, the Government had divided the property in 14 plots and out of the said plots, Survey Nos.6618 to 6628 came to be allotted to different persons. However, Survey Nos.6615, 6616 and 6617 have not yet been allotted and they are vested in the Government. Further, it is stated that the sale transaction of the said land is illegal and the Government land has been sold out, thereby the offence has been committed. The said report is submitted on 23.11.2012. However, the report was not satisfactory qua the fraudulent gift deed and the forged signatures of the dead persons as witnesses. Therefore, the learned Magistrate directed the Police Inspector, Radhanpur, to inquire further into the Inquiry Case No.35 of 2011. Thus, it is crystal clear that the Inquiry Case No.35 of 2011 is in connection with the fraudulent gift deed of the property of City Survey Nos.6615, 6616 and 6617.
9. In the aforesaid background and considering the said report as well as the facts of the earlier complaint, the learned Magistrate has passed the order dated 19.6.2013 in Criminal Inquiry Case No.10 of 2013, which is challenged in the present application. Merely because the order has been passed by the learned Magistrate to inquire into the matter would not prejudice Page 10 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined the present applicants. Under the provisions of Section 202 of the Code, the Magistrate is empowered to pass an order of inquiry. The ambit and scope of the inquiry is only to determine the question, whether any process is to be issued or not against the accused ? The Magistrate has to satisfy himself as to whether there is any sufficient ground for the proceedings and as to whether there is any evidence. The Magistrate has only to ascertain the truth and the falsehood on the complaint and then, after recording the satisfaction and considering the sufficient grounds, to proceed against the accused. The Magistrate has to issue process against the accused. Unless and until the process is issued against the accused, the accused has no role to play and the accused has no right to take part in the inquiry initiated under Section 202 of the Code. Thus, merely passing an order of inquiry would not prejudice the applicants in any manner.
Further on perusing the civil proceedings, being Regular Civil Suit No.56 of 2013, relied upon by the applicants, wherein they have sought the relief from the court that the City Survey Nos.6615, 6616 and 6617 do not belong to the Government but the said properties are consisting of City Survey No.6654. The present applicants are owners and occupiers of the City Survey Page 11 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined No.6654. Thus, it clearly reveals from the record produced on record by the applicants that Survey No.6654 consists of many survey numbers admeasuring 69,919 sq.meters of land, which is known as 'Lalbaug', while the disputed property bearing Survey Nos.6615 to 6624 belonged to the Government since 1969 and out of the said property land admeasuring 178.97 sq.meters Government land is different than the land stated by the applicants. In view of the above, the learned Magistrate had ordered to submit a report qua the forged document of gift deed in the earlier Inquiry Case No.35 of 2011, while the present complaint is filed for the encroachment based on fraudulent documents so far as Survey Nos.6615, 6616 and 6617 is concerned. It clearly revealed from the certified copies produced on record by the present applicants of the Regular Civil Suit No.56 of 2013 which was filed by the present applicants against the Government only, thereby relief was sought to declare that the applicants are owners of the suit land and are in possession of the said survey numbers and the Government has no right to disturb the possession of the applicants. Thus, the dispute qua Survey Nos.6615, 6616 and 6617 is different from the City Survey No.6654 and it is a Government land, wherein except the Government no one is joined as a party defendant to the earlier Page 12 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined criminal proceedings. Even, the earlier Inquiry Case No.35 of 2011 is also a different set of facts qua only the forged gift deed of the remaining parcel of the property bearing Survey No.6654. Even, from the averments made in the present application, more particularly, paragraph-3, it appears that the said land is different as the applicants have averred as under :
"...the Petitioners have purchased the land admeasuring 300 square meters falling in City Survey No.6654 from Pathan Rasulkhan Kadarkhan Malik whose name was registered in the revenue records on 7.6.2011 for sale consideration of Rs.4,90,000/- by way of registered sale deed. The petitioners have also purchased two other lands admeasuring 50 square meters and 357.5 square meters of land respectively in City Survey No.6654 by way of registered sale deed on sale consideration of Rs.50,000/- and Rs.1,00,000/-
respectively."
10. Thus, it appears that the Government land is merged into the City Survey No.6654. The learned Magistrate has also taken into consideration the fact that after purchasing the Survey Page 13 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023 NEUTRAL CITATION R/CR.MA/16334/2013 JUDGMENT DATED: 14/07/2023 undefined No.6654 by way of a registered sale deed (alleged fraud by forging gift deed), the Government land merged into the said survey number. Merely passing an order of inquiry would not prejudice in any manner to the present applicants, and when the land is belonging to the Government, in the impugned complaint, any one has a power to put the criminal machinery in motion.
11. In view of above, at this stage, the argument canvassed by the learned advocate that the proceedings are filed with an ulterior motive to harass the applicants is not acceptable. Suppose, after the inquiry, if any report is submitted and, prima facie, offence is made out and if the Magistrate is satisfied, having found sufficient grounds, to issue the process against the accused, even then also the applicants may have a right to take appropriate recourse under the law. The applicants may file appropriate proceedings before the court and even ask for the joint trial before the learned Magistrate if, in both the complaints, substance is found and both the acts are connected or co-related to each other and if cognizance in both the complaints is taken by the learned Magistrate. Page 14 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023
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12. I have also considered the law laid down by the Hon'ble Apex Court in the case of Amit Kapoor vs. Ramesh Chander and another, reported in (2010) 9 SCC 460, wherein the Apex Court has laid down the following guiding principles :
"27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."Page 15 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023
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13. Even in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, reported in 2021 SCC Online SC 315, the Apex Court has held that criminal proceedings ought not to be scuttled at the initial stage. However, in the case on hand, the sameness of the allegation is clearly not emerged at this stage as the matter is yet to be inquired.
14. Hence, at this stage, it is very difficult to come to the conclusion that both the complaints are having the same nature and identity. Therefore, I am not inclined to quash the order passed by the learned Magistrate under Section 202 of the Code for submitting the report of the inquiry, at the very primary stage.
15. In view of the above, the application fails and is hereby dismissed. Rule discharged.
(HASMUKH D. SUTHAR, J.) /MOINUDDIN Page 16 of 16 Downloaded on : Sat Sep 16 21:26:16 IST 2023