Gujarat High Court
Mangalbhai Radhe Yadav vs State Of Gujarat & 3 on 8 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1679/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 1679 of 2016
With
CRIMINAL MISC.APPLICATION NO. 14073 of 2016
In SPECIAL CRIMINAL APPLICATION NO. 1679 of 2016
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MANGALBHAI RADHE YADAV....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR AJAY S JAGIRDAR, ADVOCATE for the Applicant(s) No. 1
MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 4
PUBLIC PROSECUTOR for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/02/2017
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
"(a) to issue appropriate writ, order or direction directing the respondents to lodge complaint/FIR against Chhotubhai Vestabhai Patel, Shankarbhai Mevabhai Patel, Bhagubhai Somabhai Patel, Sanjaybhai and Amritbhai and also any other accused find during the investigation, more particular at Annexure-B;
(b) to direct the respondents to lodge complaint/FIR by the CID Crime or State Crime or any other investigating agency which may be deemed fit, in the interest of justice;Page 1 of 27
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(c) to direct the respondent no.2 to record the statement of the petitioner with truth and correct fact as narrated in application dated 3.3.2016 and consider the same, more particular at Annexure-F.
(d) Any such other and further order as thought fit in the interest of justice;"
On 31st March 2016, the following order was passed :
"1. Leave to amend the petition is permitted.
2. Petitioner has approached this Court under Article 226 of the Constitution of India invoking extraordinary jurisdiction under section 482 of the Code of Criminal Procedure.
3. The petitioner has filed this petition seeking following reliefs:-
18. The applicant, therefore, humbly prays that this Honble Court be pleased:-
(a) To issue appropriate writ, order or direction directing the respondents to lodge complaint/FIR against Chhotubhai Vestabhai Patel, Shankarbhai Mevabhai Patel, Bhagubhai Somabhai Patel, Sanjaybhai and Amritbhai and also any other accused find during the investigation, more particular at Annexure-B;
(b) To direct the respondents to lodge complaint/FIR by the CID Crime or State Crime or any other investigating agency which may be deemed fit, in the interest of justice;
(c) To direct the respondent No.2 to record the statement of the petitioner with truth and correct fact as narrated in application dated 3.3.2016 and consider the same, more particular at Annexure-F.
(d) Any such other and further order as thought fit in the interest of justice;Page 2 of 27
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4. The petitioner had earlier approached this Court by way of Special Criminal Application No.7413 of 2015 where this Court on 14.12.2015 passed the following order:-
By this writ-application under Article 226 of the Constitution of India, the applicant has a grievance to redress as regards the inaction on the part of the police authority in not registering the First Information Report pursuant to the complaint lodged by him in writing dated 26th October 2015 addressed to the Police Commissioner, Surat, for the offence punishable under Sections 107, 147, 169, 294, 323, 327, 379, 339, 403, 452, 465, 467, 468, 471, 504, 506(2), 120B, 34 read with Section 114 of the Indian Penal Code.
The Police Commissioner, Surat, is directed to take into consideration the complaint filed by the petitioner in writing (Annexure-A to this petition) and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Commissioner is of the view that the same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the concerned Police Station. However, the Police Commissioner, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the petitioner in writing about the same by assigning reasons in brief, within a period of four weeks from today.
With the above observations and directions, this petition is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
For any reason, if the police authorities refuse to register the FIR, it shall be open for the petitioner to avail of the remedy under Section Page 3 of 27 HC-NIC Page 3 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER 200 of the Code of Criminal Procedure.
Direct service is permitted.
5. Thereafter, once again he approached this Court by way of modification of the order in Criminal Miscellaneous Application No. 1442 of 2016 in Special Criminal Application No.7413 of 2015. This Court, without going into the allegations, disposed of the application directing the Police Commissioner, Surat to assign the preliminary inquiry to any other police officer of the nearby police station by passing the following order dated 22.1.2016 in Criminal Miscellaneous Application(for modification of Orders) No. 1442 of 2016 in Special Criminal Application No.7413 of 2015:-
"1. On 14th December, 2015, the following order was passed.
By this writ-application under Article 226 of the Constitution of India, the applicant has a grievance to redress as regards the inaction on the part of the police authority in not registering the First Information Report pursuant to the complaint lodged by him in writing dated 26th October 2015 addressed to the Police Commissioner, Surat, for the offence punishable under Sections 107, 147, 169, 294, 323, 327, 379, 339, 403, 452, 465, 467, 468, 471, 504, 506(2), 120B, 34 read with Section 114 of the Indian Penal Code.
The Police Commissioner, Surat, is directed to take into consideration the complaint filed by the petitioner in writing (Annexure- A to this petition) and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Commissioner is of the view that the same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the Page 4 of 27 HC-NIC Page 4 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER concerned Police Station. However, the Police Commissioner, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the petitioner in writing about the same by assigning reasons in brief, within a period of four weeks from today.
With the above observations and directions, this petition is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
For any reason, if the police authorities refuse to register the FIR, it shall be open for the petitioner to avail of the remedy under Section 200 of the Code of Criminal Procedure.
Direct service is permitted.
2. In due deference to the above referred order, it appears that the Police Commissioner directed the Police Sub Inspector of the Pandesara Police Station, Surat City, to carry out the preliminary inquiry into the matter. The applicant herein points out that it is the very same Police Inspector of the Pandesara Police Station against whom he has levelled allegations and in such circumstances, he does not expect the inquiry to be carried out in a fair manner.
3. Without going into the allegations levelled by the applicant, I dispose of this application with a direction to the Police Commissioner, Surat, to assign the preliminary inquiry to any other Police Officer of the nearby Police Station.
4. Mr. Shah, the learned APP pointed out that nearby police stations are (1) Sachin Police Station and (2) Khatodara Police Station. Mr. Shah has a grievance to redress as regards the non-cooperation of the applicant. If the applicant is not cooperating in the preliminary inquiry, then the inquiry shall be winded up accordingly.
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R/SCR.A/1679/2016 ORDER
5. Mr. Jagirdar, the learned advocate appearing for the applicant pointed out that his client will extend full cooperation for the effective disposal of the preliminary inquiry.
6. With the above, this application is disposed of. Having regard to the nature of the allegations, I expect the fair preliminary inquiry is to be conducted by the Police Officer who is assigning with such inquiry. Direct service is permitted.
6. It appears that despite repeated phone calls and on delivery of notice personally by the Police Inspector Mr.N.R.Gohil on 6.12.2015,8.12.2015 and 9.12.2015, the petitioner chosen not to go to the police station for giving his statement nor for adducing any evidence. A senior officer, who shall be deputed by the Commissioner, Surat Municipal Corporation shall remain present with the papers of the property before this Court.
Notice returnable on 13.4.2016. Mr.J.K.Shah, learned Additional Public Prosecutor waives service of notice for and on behalf of respondent No.1.
Direct service to respondent No.4 is permitted."
On 22nd December 2016, the following order was passed :
"1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:-
18(a) to issue appropriate writ, order or direction directing the respondents to lodge complaint/ FIR against Chhotubhai Vestabhai Patel, Shankarbhai Mevabhai Patel, Bhagubhai Somabhai Patel, Sanjaybhai and Amritbhai and also any other accused find during the investigation, more particular at Annexure-B;
(b) to direct the respondents to lodge complaint/ FIR by the CID Crime or State Crime or any other investigating agency which may be deemed fit, in the interest of justice;Page 6 of 27
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(c) to direct the respondent no.2 to record the statement of the petitioner with truth and correct fact as narrated in application dated 3.3.2016 and consider the same, more particular at Annexure-F.
(d) Any such other and further order as thought fit in the interest of justice;
2. The case of the writ-applicant in nutshell is that he purchased the Plots Nos.31 to 35 of Dipaknagar Colony, situated at Village Bamroli, District-Surat. It is his case that he was in peaceful possession of the plots in question, but one fine day, he was forcibly evicted by the Police Officials of the Pandesara Police Station, Surat at the instance of one Chhotubhai Vestabhai Patel and others.
3. Since he came to be forcibly evicted from the plots in question, he lodged a complaint in this regard addressed to the Police Commissioner, Surat. Since there was no action at the instance of the Police Commissioner, Surat, the writ-applicant came before this Court with Special Criminal Application No.7413 of 2015. The Special Criminal Application No.7413 of 2015 came to be disposed of vide order dated 14/12/2015 in the following terms:-
By this writ-application under Article 226 of the Constitution of India, the applicant has a grievance to redress as regards the inaction on the part of the police authority in not registering the First Information Report pursuant to the complaint lodged by him in writing dated 26th October 2015 addressed to the Police Commissioner, Surat, for the offence punishable under Sections 107, 147, 169, 294, 323, 327, 379, 339, 403, 452, 465, 467, 468, 471, 504, 506(2), 120B, 34 read with Section 114 of the Indian Penal Code.
The Police Commissioner, Surat, is directed to take into consideration the complaint filed by the petitioner in writing (Annexure-A to this petition) Page 7 of 27 HC-NIC Page 7 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Commissioner is of the view that the same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the concerned Police Station. However, the Police Commissioner, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the petitioner in writing about the same by assigning reasons in brief, within a period of four weeks from today.
With the above observations and directions, this petition is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
For any reason, if the police authorities refuse to register the FIR, it shall be open for the petitioner to avail of the remedy under Section 200 of the Code of Criminal Procedure.
Direct service is permitted.
4. It appears that thereafter, a preliminary inquiry was conducted and the matter was closed on the ground that the dispute is civil in nature. This Court does not propose to go into the question as regards the title over the plots. This Court would like to know why the Police had to involve itself for the purpose of forcibly eviction of the writ-applicant from the plots as alleged. This Court had directed the Police Commissioner, Surat, to look into the matter vide order dated 14/12/2015 referred to above.
5. I wonder whether the Police Commissioner, Surat, is apprised of the developments which have taken place so far as the inquiry is concerned. I expect the Police Commissioner, Surat, to file a detailed reply in this regard by next date of hearing. Post the matter for further hearing on 19/01/2017. By next date of hearing, the affidavits should be on record."
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R/SCR.A/1679/2016 ORDER
The case of the writ-applicant is plain and simple. According to him, the land in question was originally purchased by one Arunkumar P.Pandey in and around 1986 on the basis of possession. The owner was one Makanbhai Valabhai Patel. The entire land was divided in plots and were sold on the basis of the possession agreement and possession receipts. The original purchaser Arunkumar P.Pandey came in possession of plot no.34 being the owner of the same. The writ-applicant purchased the said plot no.34 from Mr.Pandey in the year 2003 on the very same terms and conditions on which Mr.Pandey had purchased. The name of the applicant and his partner came to be mutated in the revenue records. In the same manner plot nos.31 to 35 have been purchased by the writ- applicant in his name and also in the name of his wife and his partner. He is in possession since long.
It is his case that on 21st October 2015 about 15 to 20 goons forcibly entered into the property and tried to take over the possession forcibly.
The writ-applicant requested the police to provide protection to his life and property but the police declined to interfere. In the additional affidavit filed by the writ-applicant dated 8th April 2016, the following has been averred :
"I have called the police by calling 100 and at that time, police came and myself and my partner Gulabchand have taken to the police station instead of stopping those accused from taking forcible possession and thereafter with the help of Pandesara Police Station, the accused have continued the offence on 22.10.2015 and 23.10.2015 with the help of officer of the Pandesara Police Station not only taken a possession but also Page 9 of 27 HC-NIC Page 9 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER constructed kachchha shop on my plot and thereafter I have filed a complaint before the Police Commissioner, Surat on 26.10.2015 and thereafter the proceeding which has been initiated by me as produced along with main petition and orders passed by this Hon'ble Court, but in spite of the specific order passed by this Hon'ble Court on 22.1.2016 to transfer the investigation to other police station, thereafter Pandesara Police Station does not have any authority to investigate my complaint but on 26.1.2016 Police Inspector of Pandesara Police Station has sent a letter which was received by me on 12.2.2016 that the complaint is in nature of civil, the said report has been received by me. I say that once the investigation has been transferred by this Hon'ble Court to the other police station on 22.1.2016, thereafter the Pandesara Police Station has become functus officio and cannot investigate and/or written any communication with regard to the complaint lodged by me but the allegation levelled against the Police Inspector of Pandesara Police Station and therefore, he has created a record to show that the complaint is of the civil nature. I say that after transfer the investigation to Sachin Police Station and in spite of the order of this Hon'ble Court to conduct the fair inquiry, Sachin Police Station has also sent a report to the Police Inspector, Surat. I have produced the said letter along with the main petition at Annexure-G, page
56. I say that before I receive the said letter, I have also written complaint to the Surat Police Commissioner that the investigation has not been conducted in fair manner by the Sachin Police Station, the said communication is at Annexure-F, page 48 with the main petition. I say that thereafter pursuant to the application dated 3.3.2016, the Police Commissioner directed the Sachin Police Station to verify the original document with regard to Plot Nos.33, 34 and 35 and I have been called on 9.4.2016. Annexed hereto and marked as ANNEXURE-A7 is a copy of the yaadi dated 5.4.2016.
6. I say that I have filed this additional affidavit in support of my possession and my right. It is also crystal clear that myself and my partner have in possession of Plot Nos.31 to 35. I say that most of the portion of Plot No.35 has been acquired by the respondent corporation for public utility. I say that I am having possession in Plot Nos.3l to 35 since more than 13 years and till the period the accused never claimed their right but now the area Page 10 of 27 HC-NIC Page 10 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER merged into the corporation area and looking to increase the price in rocket speed, the accused are trying to grab the land with the help of government machinery and the police are trying to give the shape of civil nature and therefore, I am requesting this Hon'ble Court to file appropriate complaint and to investigate by some independent agency like CID Crime or State Crime in the interest of justice."
The Commissioner of Police, Surat city, has also filed an affidavit in reply, inter alia, stating as under :
"5. I say and submit that the applicant has in the application stated that the authorities along with the accused persons with the help of police authority had taken forceful possession of the property of the applicant. It is also alleged that the alleged offence has been committed by the accused between 21.10.2015 to 23.10.2015 and inspite of telephonic complaint of the applicant, the police has not registered the complaint. I say and submit that so far as the events which took place between 21.10.2015 to 23.10.2015 is concerned, I had inquired from the DCP Zone-2 as well as the officer from Sachin Police Station who have been looking into the matter, upon inquiry it has been revealed that the authority had not aided the accused persons to take forcible possession. I say and submit that it is also alleged that on 21.10.2015 to 23.10.2015 the Police Inspector of Pandesara Police Station had forced the applicant to give possession of plot. I. deny all the allegations and averments made in this regards. I say and submit that upon going through the report from the Police Inspector, Pandesara Police Station it has been revealed that on 21.10.2015, one Bhagubhai Somabhai who claims to be the owner of Plot No.35 had arranged an inauguration of the said plot and hence Bhagubhai Somabhai, Shankarbhai Nevabhai and Chotubhai Vestabhai had visited the plot situated at Deepaknagar Society along with their relatives. On that day, at about 11:00 am to 12:00 pm, the applicant herein had gathered at the plot along with one Gulabchand Sahani and there were exchange of heated arguments amongst both the sides. One of the relative of Bhagubhai namely Amrutbhai had called on 100 number the Police Control Page 11 of 27 HC-NIC Page 11 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER Room and the police officers of Pandesara PCR Van had arrived at the place of incident and had taken all of them to Pandesara Police Station where both the sides were asked to submit their documents regarding their ownership. Bhagubhai submitted the necessary documents however, the applicant no.1 stated that he shall go and bring the same. The applicant therefore left Pandesara Police Station. The applicant did not report back till the evening and he stated further thereafter that the original documents are with his advocate. The applicant on the very same day 21st October 2015 filed an Affidavit before Dy. Registrar for the purpose of presentation of Civil Suit before the Ld. 13th Add. Senior Civil Judge, Surat Court on 23rd October 2015. A copy of the memo of plaint filed before the Ld. Principal Senior Civil Judge, Surat is annexed herewith and marked as ANNEXURE: R-1. It is pertinent to note that the applicant has not stated anything with respect to the occurrence of any event which took place on 21.10.2015 to 23.10.2015 before the Ld. Court.
I say and submit that thereafter, it has been revealed that on 22.10.2015 the applicant along with his relatives had visited the plots no.33, 34. 35. On that day, he himself gave a call on 100 number at the Police Control Room. Pursuant to the call received, the Pandesara Police Authorities arrived with the PCR Van. The applicant as well as his relatives were explained an informed by the authorities that the dispute is civil in nature. The applicant did not deem it fit to give any complaint or statement on that day as well.
I say and submit that it has been informed that on 23.10.2015 again the applicant and his friends were present on the plot no. 33, 34, 35 and this time again relative of Bhagubhai namely Amrutbhai had called the Police Control Room and the PCR Van reached the place of incident. On that day, the applicant and his relatives thereafter left the place of incident and did not come to the Police Station. On that day, as well, no statements were given by the applicant nor any complaint was given to the Pandesara Police Station. Annexed herewith and marked as ANNEXURE: R-2 are the copies of the Logged book, slips of the Surat city control room and the details with respect to the PCR Van. The applicant was subsequently called number of times by the Police Page 12 of 27 HC-NIC Page 12 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER Inspector, Pandesara Police Station to submit the documents and to give his statement. However, the applicant did not remain present before the authority. The Police Inspector of Pandesara Police Station had submitted a report in this regards to 20th January 2016 at the relevant point of time to the Deputy Commissioner of Police, Zone-2, Surat is indicating the entire set of facts. A Copy of the report submitted by the Police Inspector, Pandesara Police Station is annexed herewith and marked as ANNEXURE: R-3. This report is also taken into consideration by the deponent herein. It has come to the notice that Pandesara Police Inspector had also issued notices to the applicant for the purpose of giving his statement. Copies of the same are annexed herewith and marked as ANNEXURE: R-4 Colly.
6. I say and submit that the applicant thereafter preferred Special Criminal Application No.7413 of 2015 before this Hon'ble Court wherein the applicant made allegations against the Police Inspector, Pandesara Police Station. The Hon'ble Court vide order dated 28th January 2016 directed that the investigation to be carried out by the Police Inspector, Sachin Police Station. The inquiry/investigation was thereafter transferred to the Sachin Police Station, Surat.
7. I say and submit that the controversy involved in the present case is with respect to the ownership of the plot nos.33, 34, 35 situated at Deepaknagar Society, Bamroli, Udna, Surat. There are civil disputes pending with respect to the ownership of the land in question. The ownership of the land in question is claimed by both the parties on account of "Kabja Receipt".
8. I say and submit that the police authorities are well aware about the scope and ambit of their jurisdiction and that it is not within their jurisdiction to decide the right/title of the land in dispute. The statement of the Police Inspector, Pandesara Police Station is also taken by the Police Inspector, Sachin Police Station wherein, the details of the alleged incidents from 21.10.2015 to 23.10.2015 have been explained. I say and submit that pursuant to the allegations made in the application that the applicant was forcefully dispossessed, no such details have come forth nor there is any independent evidence in support of the allegations made by the applicant. The Page 13 of 27 HC-NIC Page 13 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER investigation/inquiry is subsequently transferred to the Sachin Police Station on account of the direction of this Hon'ble Court and the Sachin Police Station is looking into the application. The Sachin Police Station has inquired into the application made by the applicant and have concluded the inquiry and submitted a report to DCP Zone-2, in this regards on 17.03.2016 and the applicant has been informed on 02.03.2016 about the same. A copy of report dated 17.03.2016 submitted by the Police Inspector Sachin Police Station is annexed herewith and marked as ANNEXURE: R-5 and copy of the communication dated 02.03.2016 is annexed herewith and marked as ANNEXURE: R-6.
9. Thus, there is no substance in the allegations made by the applicant in the present application regarding the dispossession by the police authorities. So far as the Preliminary Inquiry is concerned the same is concluded and an appropriate report has been submitted by the authorities that the dispute is civil in nature and that civil suits are pending before the Competent Courts. The applicant is trying to mislead the Hon'ble Court by making allegations against the police authorities. Therefore the Hon'ble Court may not entertain the present application at this stage."
The writ-applicant has filed a rejoinder to the reply filed by the Commissioner, inter alia, stating as under :
"3. I say and submit that the affidavit-in-reply filed by Police Commissioner, Surat is not in consonance with the order dated 22.12.2016 passed by this Hon'ble Court. I say that the said affidavit-in-reply stated only facts of the case and events which have already been narrated by me in the memo of the petition and also the same is supported the allegation of the petitioner that the petitioner was called by the PI, Pandesara Police Station between 21.10.2015 and 23.10.2015, the said offence was committed during the said period and PI, Pandesara Police Station instead of preventing accused persons from taking forcibly possession, the said officer was asked to the petitioner to submit necessary ownership document before him which has never been permitted to Page 14 of 27 HC-NIC Page 14 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER the police authorities to look into the legality, validity of the document and/or ownership of the land and the allegation of the petitioner against the accused persons that they were trying to take a forcibly possession in spite of the fact that he is in occupation of the said land since 2003-04 and even in the corporation's record as well as tax bill and other documents are in the name of the petitioner, but the same is not subject matter of the FIR, but the police authorities have sit as a Civil Judge and decided the civil rights of the parties and helping out the accused persons to take a forcibly possession and thereafter the petitioner has filed a petition before this Hon'ble Court earlier twice. The first petition filed by me being Special Criminal Application No.7413 of 2015 and this Hon'ble Court was pleased to pass an order and directed the Police Commissioner, Surat as under:
"The Police Commissioner, Surat, is directed to take into consideration the complaint filed by the applicant in writing (Annexure-A to this petition) and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Commissioner is of the view that the same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the concerned Police Station. However, the Police Commissioner, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the applicant in writing about the same by assigning reasons in brief, within a period of four weeks from today."
It is submitted that pursuant to the aforesaid directions, instead of taking decision by the Police Commissioner, Surat City, he has handed over the investigation to the Police Inspector, Pandesara Police Station, though he was involved and serious allegations made against him in the said incident, therefore, the petitioner approached this Hon'ble Court to transfer the investigation and therefore, vide order dated 21.2.2016, the investigation has been transferred to Sachin Police Station. I say that the I have been called for giving statement to respondent No.3 and Page 15 of 27 HC-NIC Page 15 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER I appeared before respondent No.3 and gave statement, but respondent No.3 did not record the same as stated by me and skipped certain portion which I alleged against the Police Inspector, Pandesara Police Station and therefore, on 29.2.2016 at about 5.00 pm, I have approached to the Police Commissioner, Surat and given detailed application with regard to the above narrated facts with respect to not record statement in word and thereafter I have filed the present petition before this Hon'ble Court and after hearing of the concerned parties on 22.12.2016, this Hon'ble Court was pleased to direct the Police Commissioner, Surat to file a detailed affidavit and the directions are as under:
"4. It appears that thereafter, a preliminary inquiry was conducted and the matter was closed on the ground that the dispute is civil in nature. This Court does not propose to go into the question as regards the title over the plots. This Court would like to know why the Police had to involve itself for the purpose of forcibly eviction of the writ-applicant from the plots as alleged. This Court had directed the Police Commissioner, Surat, to look into the matter vide order dated 14/12/2015 referred to above.
5. I wonder whether the Police Commissioner, Surat, is apprised of the developments which have taken place so far as the inquiry is concerned. I expect the Police Commissioner, Surat, to file a detailed reply in this regard by next date of hearing. Post the matter for further hearing on 19/10/2017. By next date of hearing, the affidavits should be on record.
I say that pursuant to the aforesaid directions, this Hon'ble Court was pleased to direct the Police Commissioner to file detailed affidavit with regard to the developments which have been taken place so far as the inquiry is concerned. But the Police Commissioner, Surat has filed affidavit with regard to the incident and events occurred between 21.10.2015 and 23.10.2015 and also placed the civil suit which has been filed by the petitioner but did not place anything record to show that what Police Commissioner, Surat has inquired or investigated Page 16 of 27 HC-NIC Page 16 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER with regard to the offence committed by the accused persons with the help of Police Inspector, Pandesara and also with regard to the forcibly dispossession. I say that from pages 212 to 222, it is clearly revealed that I have called the Police Inspector, Pandesara Police Station by giving call to the Police Control Room 100 for continuous three days, i.e. 21.10.2015 to 23.10.2015 and the same has been clearly reflected that some incident was occurred at the place of the incident, but instead of lodging of the FIR, the Police Inspector, Pandesara asked me to produce the legal valid title of the property and the same has not been investigated or inquired by the Police Commissioner, Surat pursuant to the order passed by this Hon'ble Court and placed the civil suit on record. Therefore, by looking to the Police Control Room Record, it is clearly indicated that something was happened during those three days.
4. With reference to the contents of paras 1 to 4 of the affidavit-in-reply, the same are formal paragraphs in nature and therefore, I do not comment.
5. With reference to the contents of para 5 of the affidavit-in-reply, I say that the averrnents made therein are not admitted and are hereby denied. I deny that the authority had not added the accused persons to take forcible possession. I say that the Police Commissioner has stated in the affidavit with regard to the incident which took on 21.10.2015 and also stated that Police Control Room had been informed by calling 100 number and also Pandesara PCR Van had arrived at the place of incident and had taken all of them to Pandesara Police Station where both the sides were asked to submit their documents regarding their ownership. I say that the same is not function of the police authorities to ask the legal and valid document of the land but the duty of the police is that not to take forcible possession from anyone without any order of the court of law but here in the present case the Police Inspector, Pandesara sit as a Judge of the Civil Court and asked the necessary document with regard to the ownership, but the Police Commissioner, Surat has failed to file detailed affidavit and/or inquire or investigate with regard to the above incident and is trying to give the entire incident in civil nature and supported the version of the Police Inspector, Pandesara without investigating any further as directed Page 17 of 27 HC-NIC Page 17 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER by this Hon'ble Court. I say that the Police Commissioner stated in the reply that the applicant did not report back till evening with the document with the Police Inspector, Pandesara. I say that the Police Commissioner, Surat has filed affidavit-in-reply pursuant to the order of this Hon'ble Court and placed the copy of the civil suit on record instead of what investigation has been carried by him and therefore, the same conduct is clearly breach of the order passed by this Hon'ble Court. I say that in the entire paragraph No.5, it is clearly revealed that on 22.10.2015, again the accused persons came to the disputed land, i.e. Plot Nos.33, 34, 35 and they are started digging the land but the Police Commissioner, Surat has not stated in the affidavit instead of the fact that the Police Commissioner, Surat has stated that the applicant as well as his relatives were explained an informed by the authorities that the dispute is civil in nature. The applicant did not deem it fit to give any complaint or statement on that day as well. I say that the affidavit has narrated that on 23.10.2015 again the applicant and his friends were present on the plot Nos.33, 34, 35 and this time again relative of Bhagubhai namely Amrutbhai had called the Police Control Room and the PCR Van reached the place of incident. On that day, the applicant and his relatives thereafter left the place of incident and did not come to the Police Station. On that day, as well, no statements were given by the applicant nor any complaint was given to the Pandesara Police Station. I say that the above narrated fact has not been placed correct fact by the Police Commissioner and even not read the memo of petition, I say that I have clearly narrated the story with regard to the all three days, i.e. 21.10.2015, 22.10.2015 and 23.10.2015. I say that with regard to the incident happened on 23.10.2015, I have clearly averred and alleged in para 11 that what had happened on that day and the Police Commissioner, Surat has not taken trouble to read and without reading the same averments made in the reply that no statements were given by me nor any complaint was given to the Pandesara Police Station but the fact and incident. At the cost of repetition, I would like to place the said facts which are stated in para 11 of the memo of petition as under:
"11. It is submitted that on 23.10.2015, Sanjaybhai who is bodyguard of the Collector and Amritbhai Page 18 of 27 HC-NIC Page 18 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER who is the driver of the Municipal Commissioner, Surat along with other accused and also some 15- 20 persons at about 9.30 am. At that time, the accused have come along with the police for helping out them for the further construction and the police and accused persons have dismantled the public notice of the applicant which was erected in the property and also the police is trying to catch the wife of the applicant and his son, at that time, some press reporter came over there and started some inquiry from the police regarding the incident which has been continuous since three days also the said reporter has informed to the police that this is the civil matter and why are you indulging such a matter. Therefore, the police have not arrested the wife of the applicant and his son, but the construction activity has been carried out under the guise of the police staff and also some headstrong persons were there. At that time, Amritbhai who is driver of the Municipal Commissioner was present there. Thereafter the said press reporter has taken the applicant, his wife and his son to the Police Commissioner Officer for lodging of the complaint. At that time, the applicant had met with the Police Commissioner, respondent No.2 herein and entire story was narrated but instead of taking action against the accused and also instead of preventing Police Inspector of Pandesara Police Station in such illegal activity, the applicant has been informed that he has given written complaint and therefore will do necessary. It is submitted that when in the morning the accused persons along with Police Inspector of Pandesara Police Station came to the plot of the applicant and at that time Police Inspector of Pandesara Police Station has again forcibly detained the partner of the applicant namely, Gulabchand and he has also been beaten by the police and also he has not been allowed to call anywhere and mobile was detained. It is submitted that the accused have constructed the wall during the day and on that entire day, police jeep with the police staff were given protection to the accused for construction of the small shop and also all the accused were participated in all these activities. It is further submitted that the goods of the tenant were thrown Page 19 of 27 HC-NIC Page 19 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER out from the property also and he has been threatened that he is also vacant the possession. It is submitted that in spite of this, entire episode has been occurred since more than three days but the police has failed to perform their duties and given shelter and provided protection to the accused persons for taking forcibly possession from the applicant and his partner and wife of the partner to establish their civil right of the accused No.1 to 3. Therefore, the complaint is required to be lodged and the investigation is required to be carried out by some higher rank officer."
I deny and dispute that the petitioner has not come forward to the Police Inspector, Pandesara for giving statement with regard to the incident happened but since three days, the petitioner has been detained full day in the police station, did not register any complaint by the Police Inspector, Pandesara, therefore, the relatives of the petitioner along with press reporter had visited to the office of the Police Commissioner to look into the matter and register the complaint but the Police Commissioner, Surat directed them to give written application instead of giving protection from the accused persons.
I deny and dispute that the applicant was subsequently called number of times by the Police Inspector, Pandesara Police Station to submit the documents and to give his statement. I say that I have categorically averred in para 4 of the memo of petition about the conduct and allegations levelled against the Police Inspector, Pandesara Police Station. I say that I was remained present for all throughout three days before the Police Inspector, Pandesara Police Station, i.e. on 21.10.2015, 22.10.2015 and 23.10.2015, those are the days on which the offence was occurred and I was also detained during the day hours in the police station. I dispute that the Police Inspector, Pandesara Police Station had submitted a report in this regard to 20th January 2016 at the relevant point of time to the Deputy Commissioner of Police, Zone-2, Surat is indicating the entire set of facts. I say that the Police Commissioner, Surat has annexed the copy of the report dated 20.1.2016, on that day, the petition was already filed before this Hon'ble Court for transfer of investigation being Criminal Misc. Application (for modification of orders) No.1442 of 2016 in Special Page 20 of 27 HC-NIC Page 20 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER Criminal Application No.7413 of 2015. The said application was presented before this Hon'ble Court on 19.1.2016 and this Hon'ble Court was pleased to issue notice on 20.1.2016 which came to be returnable on 22.1.2016. I say that the Police Inspector, Pandesara Police Station prepared a report on the very same day, i.e. on 20.1.2016. The said report is annexed at Annexure-R3, page 223. I say that on plain reading of the said report, it clearly reveals that the Police Inspector, Pandesara Police Station was called me for verification of the original document with regard to the title of the property. I say that from the right of inception, the Police Inspector, Pandesara Police Station, instead of lodging of the complaint, interested to look into the legality and validity of the title of the property which is not the jurisdiction or subject matter of the investigation and by doing such the Police Inspector, Pandesara Police Station has given shelter to the accused persons to take forcible possession from me. I deny that the Police Inspector, Pandesara Police Station had issued notice to the applicant for the purpose of giving his statement. I say that I have categorically averred in para 4 with regard to the conduct of the Police Inspector, Pandesara Police Station in recording the statement. I say that the Police Inspector, Pandesara Police Station did not want to record my statement at all and he was kin to obtain my original documents with regard to the land which I was already submitted before the learned Civil Court. I say that I approached this Hon'ble Court for transfer of the investigation and this Hon'ble Court was pleased to allow the same. Pursuant to the said order dated 22.1.2016, the Pandesara Police Station could not have carried out the investigation and become functus officio. I say that on 22.1.2016, officer of the Pandesara Police Station was very much present before this Hon'ble Court and very well aware about the said order. I say that respondent No.2 Police Commissioner to handover the investigation some nearby Police Station, but in spite of the order dated 22.1.2016, the Police Inspector of Pandesara Police Station wanted to come out from the allegation against him and therefore in spite of the fact of the order dated 22.1.2016 that investigation has already been transferred to the other police station, but the Police Inspector of Pandesara Police Station had prepared report dated 23.1.2016/26.1.2016 and I have been served with the said report on 12.2.2016. The said report Page 21 of 27 HC-NIC Page 21 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER has been prepared by the Police Inspector of Pandesara Police Station that the compliant is of the civil nature and therefore, nothing is required to be investigated in that regard and therefore, the investigation is hereby closed down. It is submitted that in spite of the fact that the investigation has already been transferred to other police station by vide order dated 22.1.2016 and at the time of passing of the order, the officer of the Pandesara Police Station was very much present before this Hon'ble Court and he was very well aware about that the investigation has already been transferred to other police station and also levelled allegation against the Police Inspector, Pandesara Police Station so he could not carry out the investigation and become functus officio but to take a clear chit and therefore, he himself prepared a report in the nature of civil dispute, in spite of the fact that he was helping out the accused to take forcibly possession and evict me. I say that the said report has been sent to me through Registered Post A.D. which came to be served upon me on 12.2.2016. The said report is annexed at Annexure-E, page 47 of the memo of petition. At the cost of repetition, I annex the same as Annexure-R1. I say that while filing the affidavit-in-reply by the Police Commissioner, Surat has suppressed the material fact and the said report dated 26.1.2016 did not annex with the affidavit-in-reply and did not say anything about on the said report. I say that on plain reading of the said report, it clearly reveals that I have been called by the Police Inspector of Pandesara Police Station for production of document with regard to the ownership of the land. I say that Police Inspector of Sachin Police Station, i.e. respondent No.3 also prepared a report dated 2.3.2016 by following the investigation carried out by the Police Inspector of Pandesara Police Station and also followed by word to word report prepared by the Police Inspector of Pandesara Police Station. I say that looking to the above stated conduct of the Police Inspector of Pandesara Police Station, it clearly reveals that neither Police Inspector of Pandesara Police Station wanted to record statement in the nature of the offence committed by the offence nor any the respondent authorities wanted to register the FIR but they are interested in the original document with regard to the ownership of the land which is very surprising that why the police had involved for the purpose of forcibly eviction and also cannot go into the question as regards Page 22 of 27 HC-NIC Page 22 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER the title over the plot but looking to the entire reply as well as the annexures it clearly speak that the investigation has been carry out only on the way of the title of the plot and the documents. I say that police have not even taken a trouble to record the statements of the neighbours and other witnesses who were present at the time of the incident from 21.10.2015 to 23.10.2015. I say that this is a fit case for registering the FIR against the accused persons for forcibly eviction and other charges which I have been narrated in my complaint.
7. With reference to the contents of para 7 of the affidavit-in-reply, I deny and dispute that the controversy involved in the present case is with respect to the ownership of the plot Nos.33, 34, 35 situated at Deepaknagar Society, Bamroli, Udhna, Surat. I say that the civil suit has been pending but that is nothing to do with the present offence committed by the accused persons. On the contrary, the civil suit was required to be filed because the accused persons were trying to forcibly take possession and with the help of Police Inspector, Pandesara possession was forcibly taken by the accused persons and therefore, the incident cannot be said as a civil dispute and the FIR is required to be registered and I say that now, the cases and cases have been increased in the city of Surat that every possession has been taken forcibly with the help of either by the police or headstrong persons with the armtwisting tactics and therefore, this Hon'ble Court may be pleased to take a strict view against the police as well as headstrong persons.
8. With reference to the contents of para 8 of the affidavit-in-reply, I deny and dispute that the police authorities are well aware about the scope and ambit of their jurisdiction and that it is not within their jurisdiction to decide the right/title of the land in dispute. I deny and dispute that pursuant to the allegations made in the application that the applicant was forcefully disposed, no such applicant was forcefully dispossessed, no such details have come forth nor there is any independent evidence in support of the allegations made by the applicant. I say that with respect to the aforesaid averments, I have preferred an application to the Police Commissioner, Surat on 29.2.2016 and the same has been annexed with the memo of petition and also Page 23 of 27 HC-NIC Page 23 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER narrated in para 6 of the petition which reads as under:
"6. It is submitted that the petitioner was categorically averted and given a statement regarding the involvement of the Police Inspector of Pandesara Police Station and it was within the knowledge of the respondent No.3 that the possession of the land has been forcibly taken by the accused person with the help of the Police Inspector of Pandesara Police Station and therefore, the statement which was given by the petitioner was not recorded in word and skipped the portion with regard to the allegation against the Police Inspector of Pandesara Police Station, therefore, the petitioner approached the respondent No.2 Police Commissioner on 29.2.2016 at about 5 pm and made a request that officer of the respondent No.3 did not recorded statement as applicant stated and skipped the portion and allegation against the police inspector of the Pandesara Police station, therefore respondent No.2 told to petitioner to give an detail written application to him, therefore on 3.3.2016 by giving a written application alleging that the statement which was given by the present petitioner was not recorded properly and in word and the respondent No.3 was Skipped and/or not recorded the allegation which was alleged against Police Inspector of Pandesara Police Station and also this is the clear cognizable offence committed by the accused person and therefore look into the matter. The said application was given on 3.3.2016 at about 5.00 pm."
I say that it is not correct that there is no further allegation against the police authority after transferring the investigation to the Sachin Police Station has submitted the report and forwarded the same to the Police Commissioner with regard to the offence and nature of the civil. I say that the said report has been prepared by the Sachin Police Station followed by the report prepared by the Police Inspector, Pandesara. I say that this Hon'ble Court was pleased to transfer the investigation to the Sachin Police Station on 21.2.2016. I say that I have alleged and stated in the memo of petition that officer of the Pandesara Police Station was Page 24 of 27 HC-NIC Page 24 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER present before this Hon'ble Court on 12.2.2016 and he had knowledge that the investigation has been transferred to the Sachin Police Station. I say that the report which is annexed with the reply, has already been annexed with the petition and it is clearly revealed that the Police Inspector, Sachin Police Station has not conducted fair and proper investigation. I say that after going through the said report, it clearly reveals that the investigation which was carried out and the report prepared by the Police Inspector of Pandesara Police Station was taken into consideration as prima facie against me for and despite clear directions of this Hon'ble Court, the Police Inspector of Sachin Police Station did not carry out fair and proper investigation.
9. With reference to the contents of para 9 of the affidavit-in-reply, I deny and dispute that there is no substance in the allegations made by the applicant in the present application regarding the dispossession by the police authorities. I deny and dispute that so far as the preliminary inquiry is concerned the same is concluded and an appropriate report has been submitted by the authorities that the dispute is civil in nature and that civil suits are pending before the competent Courts. I deny and dispute that the applicant is trying to mislead the Hon'ble Court by making allegations against the police authorities. I say that there is clear dispossession at the end of the police authorities. I say that I have categorically averred and alleged in the memo of petition along with the annexure i.e. Annexure-F at pages 48 to
55. I say that I have averred the same in para 6 of the memo of petition and at the cost of repetition, I say that I have categorically averred and given a statement regarding the involvement of the Police Inspector of Pandesara Police Station and it was within the knowledge of the respondent No.3 that the possession of the land has been forcibly taken by the accused person with the help of the Police Inspector of Pandesara Police Station and therefore, the statement which was given by me was not recorded in proper perspective and manner with regard to the allegation against the Police Inspector of Pandesara Police Station, therefore, I approached the respondent No.2 Police Commissioner on 29.2.2016 at about 5.00 pm. and made a request that officer of the respondent No.3 did not record statement as applicant stated and skipped the portion and allegation against the Page 25 of 27 HC-NIC Page 25 of 27 Created On Sat Aug 12 15:40:19 IST 2017 R/SCR.A/1679/2016 ORDER police inspector of the Pandesara Police station, therefore respondent No.2 told me to give a detailed written application and therefore on 3.3.2016 by giving a written application alleging that the statement which was given by me was not recorded properly and also this is the clear cognizable offence committed by the accused person and therefore look into the matter. The said application was given on 3.3.2016 at about 5.00 pm. Thereafter, the respondent No.3 at about 7.00 pm on 3.3.2016 was issued notice to me that the complaint is in nature of the civil dispute, therefore, respondent no.3 sent the report to the higher officer. I crave leave to refer and rely upon the averrnents made in the memo of petition at the time of hearing.
10. I say that this Hon'ble Court was pleased to direct the Police Commissioner, Surat to file a detailed affidavit and further this Hon'ble Court does not propose to go into the question as regards the title over the plots and also this Hon'ble Court would like to know why the police had to involve itself for the purpose of forcibly eviction of the writ-applicant from the plots as alleged. I further say that the Police Commissioner, Surat has not filed affidavit-in- reply in consonance with the order passed by this Hon'ble Court and entire affidavit-in-reply along with the annexures has been filed showing that the civil suits are pending before the Civil Court but nothing has been stated in the affidavit-in-reply or no document has been produced that I have been forcibly evicted by the accused persons with the help of the police and the Police Commissioner, Surat has not gone into that fact and did not file affidavit in that manner. Therefore, this Hon'ble Court may be pleased to pass appropriate order and allow the petition and also the investigation to be carried out as prayed in para 18 and/or as may be thought fit to this Hon'ble Court."
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that a proper investigation should be carried out after registration of the FIR in accordance with law.
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R/SCR.A/1679/2016 ORDER
I am not convinced with the stance of the respondents that that case is of a civil nature and one relating to possession of the dispute property. The facts on record are self- explanatory.
It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question, whether the police should register the FIR and carry out proper investigation and shall not be construed as an expression of the final opinion as regards commission of a particular offence.
The Commissioner of Police, Surat, shall do the needful in accordance with law at the earliest.
With the above, this writ-application is disposed of.
In view of the disposal of the main matter, the connected Criminal Misc. Application also stands disposed of.
(J.B.PARDIWALA, J.) MOIN Page 27 of 27 HC-NIC Page 27 of 27 Created On Sat Aug 12 15:40:19 IST 2017