Gujarat High Court
Dahiben Wd/O Gijubhai Chhaganbhai ... vs State Of Gujarat & on 26 November, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/18650/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 18650 of 2014
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DAHIBEN WD/O GIJUBHAI CHHAGANBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Applicant(s) No. 1
MR AN SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/11/2014
ORAL ORDER
1. Issue Notice to the respondents returnable on 24.12.2014. Mr. Shah, the learned APP waives service of notice for and on behalf of the respondent no.1 State of Gujarat. Mr. A.B. Munshi, the learned advocate has entered appearance on behalf of the respondent no.2 original first informant and waives service of notice.
2. I have heard Mr. N.D. Nanavati, the learned senior advocate appearing on behalf of the applicant original accused. I have also heard Mr. S.V. Raju, the learned senior advocate appearing on behalf of respondent no.2 original informant and the learned APP for the State.
3. Primafacie, the case of the first informant appears to be that the property in dispute was fraudulently transferred on the strength of a forged power of attorney. The first informant is a tribal lady. According to her, the fraud had been committed by the applicant and other persons Page 1 of 5 R/CR.MA/18650/2014 ORDER and by practicing deceit, the entire property has been transferred. Although the first informant claims to be the owner of the disputed property, it appears that there are other coowners.
4. This litigation appears to have a chequered history. The FIR was lodged on 08.08.2014 for an offence, which is alleged to have been committed before 03.11.2010. It appears that for the first time, an application was filed before the police authorities in January, 2014 alleging that the fraud had been committed and the FIR should be registered. At that stage, it appears that a petition was filed by the accused herein and others seeking appropriate relief from the Court that the police authorities should not register the FIR. This Court in the Special Criminal Application No.1172 of 2014 had granted some interimrelief, which ultimately was ordered to be vacated vide order dated 09.04.2014 pursuant to an application filed for vacating of interim relief by the first informant being Criminal Misc. Application No.4974 of 2014. The learned Judge made the following observations: "18. Having noticed the fact that the petition is at a preliminary stage and observations of this Court may prejudice rights/ defence of the parties, this Court would not like to answer the submissions on factual aspects of the case in greater detail. Suffice it to say that the Criminal Procedure Code lays down, in detail, a procedure to deal with the information lodged with the police. Under the said code the police is authorised to investigate the matter and make appropriate report to the magistrate concerned. Such report may state the commission of crime in which case the magistrate may follow the necessary procedure under the Code of criminal Procedure. Similarly, the report may indicate that no offence was committed in which case again the Magistrate may follow the necessary procedure under the Code of Criminal Procedure. Therefore, irrespective of alleged mitigating circrumstances movement of criminal machinery under Criminal Procedure Code cannot be thwarted at the threshhold by injuncting registeration of FIR itself.
Page 2 of 5R/CR.MA/18650/2014 ORDER
19. As regards the question of coercive steps is concerned, again it is for the police machinery to address it inasmuch as discretion is conferred upon such machinery under the Cr.P.C and thus, such powers have to be exercised keeping in view the facts and circumstances of each individual case and exercise of such power by this Court preregistration of FIR would be unwarranted.
20. It is however, clarified that observations made in this order are only for the purpose of deciding Criminal Misc. Application No. 4074/2014 and none of the authorities would be influenced by any of such observations and would deal with the matter independently in accordance with law.
21. In above view of the matter Criminal Misc.
Application No. 4974 of 2014 succeeds. Ad interim relief granted by this Court in Special Criminal Application No. 1172 /2014 on 27th March 2014 is vacated. Rule is made absolute. No costs."
It also appears that the matter was upto before the Hon'ble Supreme Court and the Hon'ble Supreme Court confirmed the order passed by this Court dated 09.04.2014.
5. It also appears that the entire transaction has been recalled. In other words, the saledeed has been cancelled and the applicant before me submits that she would not claim any right, title or interest in the disputed property. Although the possession of the disputed property, as on today, is with the applicant, yet it is submitted that the possession could also be handed over to the true and lawful owner of the disputed property. It appears that an undertaking was also filed in the earlier round of litigation i.e. Special Criminal Application No.1172 of 2014, which reads as under: "The Petitioner's no.1 to 9 herein are the members of the family members, who are jointly residing at Ishwar Bungalows, Althana Village, Bharthana Vesu, Ta: Surat, District: Surat, do hereby undertake and state on oath as under:
1. That they had upon a bonafide error executed the registered Page 3 of 5 R/CR.MA/18650/2014 ORDER saledeed on 03.11.2010 in respect of the land bearing old revenue survey no.194/2 and new survey no.116/2 of village Vesu, without possessing the knowledge of the fact that in the land in question the Tenancy proceedings were undertaken and upon the conclusion of which one Mangalbhai Bhulabhai was declared as a tenant and subsequent thereto a 32M certificate dated 30.01.1974 was issued in the name of Mangal Bhula.
2. As the petitioners no.1 to 9 came to know subsequently that the Tenancy Proceedings had taken place and owing to the same Mangalbhai was granted the certificate under Section 32 M the petitioners did not make any application before any authority to get their name entered into the revenue records on the strength of the saledeed.
3. Thereafter the Ld. Dy. Collector, City Prant, Surat initiated proceedings under Section 73 AA of the Gujarat Land Revenue Code, 1879 being JMN/73 AA/ Brach/ Rag. No.6/2013 against the family members of the petitioner. In the said proceedings the Ld. Dy. Collector, City Prant, Surat had imposed a penalty upon the petitioners amounting to Rs.7,94,25,000/ and ordered on 07.01.2014 that the said land been vested with the State Government.
4. That the petitioners have approached the Ld. Collector, Surat with an appeal against the said decision. The appeal is pending before the Ld. Collector, Surat. In the said proceedings the petitioners have stated that they are ready to relinquish all their rights in connection with the land in question.
5. The petitioners have also got the sale deed cancelled and the same is also registered with the office of the SubRegistrar.
6. In light of what is stated herein above the petitioners undertake that they currently are not and in future will not claim any right, title or interest regarding the land which is old revenue survey no.194/2 and new survey no.116/2 of village Vesu, District:
Surat. They also undertake that no only they but even their future generations will not claim and right, title or interest in the land in question and if any such claim is made it shall be treated as null and void."
6. The fact that the entire transaction has been reverted is not in dispute. Mr. Raju, the learned senior advocate appearing on behalf of the original informant confirms about the same. However, he submits that by merely cancelling the saledeed or by giving up right, title or Page 4 of 5 R/CR.MA/18650/2014 ORDER interest in the property, would not absolve the petitioner herein from the offence alleged to have been committed. Mr. Raju, further submits that for the purpose of cancelling the saledeed, the very same forged power of attorney was used. Therefore, it could be said that the second offence is also committed. Be that as it may, today, I am considering an application filed by the petitioner a lady for quashing of the FIR on manifold grounds. I do not propose to enter into the merits of the same at this stage as today is first the date of hearing.
7. In my view, two things are necessary to be kept in mind; (i) the delay of 04 years in lodging the FIR which seems to have been explained in no manner. (ii) the petitioner is ready and willing to relinquish all her rights so far as the disputed property is concerned. It is for the first information to consider such stance of the applicant. In any view of the matter, let the investigation proceed further. However, till the next date of hearing, no coercive steps be taken against the petitioner being a 58 years old lady. It shall be open for the respondent no.2 to file a detail affidavit opposing this application.
Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 5 of 5