Gujarat High Court
Devanshu Sanatkumar Pota vs State Of Gujarat on 10 January, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/10076/2016 ORDER DATED: 10/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10076 of 2016
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DEVANSHU SANATKUMAR POTA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR TULSHI R SAVANI(3070) for the Applicant(s) No. 1
MR.SANAT B PANDYA(6976) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/01/2023
ORAL ORDER
1. The present petition has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being I-C.R. No.23/2016 registered with Balasinor Police Station, Dist.: Mahisagar for the offfences punishable under sections 384 and 511 of IPC.
2. Mr. Tulshi R.Savani, learned advocate for the applicant submits that, the applicant, at the time of the FIR, was Chief Officer of Balasinor Nagarpalika, and Page 1 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 though being a government servant without any prior sanction, the FIR has been lodged. Mr. Savani submits that he has been falsely dragged into the criminal case, where the dispute was between the members of the society, president and secretary of Umiyakrupa Society. 2.1 Mr. Savani submits that notice was issued by the present applicant in his official capacity of being a Chief Officer of Nagarpalika instructing the complainant to remove the illegal construction till 06th April, 2016. Mr. Savani submits that any meeting conducted by the President or the Secretary of the Umiyakrupa Society and any conversation, would have no relevance or connection with the present applicant being a Chief Officer of the Nagarpalika, and as soon as any illegal construction or encroachment is brought to the notice of the Chief Officer, then he is duty bound to issue a notice, and thus whatever act of issuing notice would be under his official duty and thus no prosecution should lie against the applicant as a public servant in view of the provisions of Page 2 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 sections 195 and 197 of Cr.P.C.
2.2 Mr. Savani further submitted that even otherwise the contents of the FIR if read into its entirety, no offence is made out against the present applicant, and thus makes a prayer to quash the FIR qua the present applicant.
3. Mr.Sanat Pandya, learned advocate for the respondent no.2 submits that the complainant has alleged the act of extortion in connivance with the co-accused and thus submits that the FIR could not be quashed at the initial stage.
4. Learned APP submits that if any illegal act beyond his official duty is found, then no such sanction under Cr.P.C. is required to be sought, and thus urged that if trial would be initiated the prosecution would have an opportunity to deal with the case and present the evidence, thus urged not to exercise inherent jurisdiction Page 3 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 at the initial stage.
5. The FIR suggests that the complainant had instructed Imtiyaj Shaikh as a contractor of Balasinor to make a construction on the second floor of her residential house and as per the complainant, her husband had moved Balasinor Nagarpalika on 22.09.2015, and they waited for the sanction and after sometime in anticipation of the sanction, the construction was started. The facts of the FIR suggests that there was a construction on the second floor towards the common plot and a three feet slab was extended, and plaster and flooring work was completed. It is stated that Bharatbhai V.Patel in the month of November held a meeting in the society and in that meeting both complainant and her husband had remained present. The President informed them that there was an illegal construction of three feet extension, and had instructed that if they do not propose to get it removed, then as a fine they were required to pay Rs.90,000/- to the society. It is stated by the complainant Page 4 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 that after negotiation the amount was decided to be as Rs.41,000/- and when they asked for receipt, the President informed that the money would be deposited in the society's fund and also informed them that if they do not deposit the money in the society fund, then they would make a complaint to the Nagarpalika. 5.1 It is alleged by the complainant that because of personal relation of Bharatbhai Patel with the Chief Officer, they were harassed and a notice was issued in connivance, where they were instructed to remove illegal construction till 06th April, 2016. The complainant has noted that they have a mobile recording of the money demanded by Bharatbhai Patel during the meeting, and it is alleged that in connivance with the present applicant, Bharatbhai Patel had forcibly asked to remove the illegal construction and for that, had demanded Rs.41,000/- and thus, the FIR was lodged.
6. As submitted by Advocate Mr. Savani, the act of Page 5 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 issuance of notice is an official act. The allegation of asking for money is against Bharabhai Patel, who had asked the complainant and her husband to pay the money to the society in case there would not be removal of the illegal construction. The FIR itself suggests that in failure, Bharatbhai Patel has instructed that he would inform the Chief Officer of Nagarpalika. The allegation is of conversation of money of Rs.41,000/-, which had occurred during the society meeting, there would not be any presence of Chief Officer of Nagarpalika and nothing has been stated to show in the FIR of presence of Chief Officer in the society meeting.
6.1 The notice has been issued towards the illegal construction, which is by Nagarpalika and the authority sending is the present applicant as Chief Officer; thus, considering the fact there could not be any criminality in the act, the notice which has been issued is towards the compliance of his official duty and further the allegation of demand of Rs.41,000/- cannot be connected with the Page 6 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 present applicant, and such money has been asked by the President of the society from the complainant and her husband as a members of the society, and there is no direct evidence of any case under section 384 of IPC of any extortion nor putting the complainant under fear for delivering of any cash amount to the applicant, who is a Chief officer and under his authority has issued the notice and thus no case of any extortion under section 383 nor under section 511 of the IPC could be made out. Further there is no direct dealing of the Chief Officer with the complainant or with husband. The issuance of notice for removal of the illegal construction is an official act of the complainant as a Chief Officer. There is no criminality in the said act.
7. In case of State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of Page 7 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 process of the court. The Apex Court in the said case 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 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 offence, justifying an investigation by police officers under Section 156(1) of the Code except under an Page 8 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 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;
(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 Page 9 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023 R/CR.MA/10076/2016 ORDER DATED: 10/01/2023 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 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."
8. In view of the above, the petition is allowed. The impugned first information report being I-C.R. No.23/2016 registered with Balasinor Police Station, Dist.: Mahisagar and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicant. Direct service is permitted.
(GITA GOPI,J) Pankaj Page 10 of 10 Downloaded on : Wed Jan 11 20:51:12 IST 2023