SCR.A/313/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 313 of 2008 with CRIMINAL MISC. APPLICATION NO.4058 OF 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= ARUNSINH AMBICAPRASAD RAJPUT & OTHERS Versus STATE OF GUJARAT & OTHERS ========================================= Appearance : MR SK GADHAVI for Applicant(s) : 1 - 26. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, MR YOGESH S LAKHANI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 30/6/2008 ORAL JUDGMENT 1. These matters were heard on 9th April, 2008 and are listed for dictation of order today. SCR.A/313/2008 2/10 JUDGMENT 2. By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioners have prayed to quash the complaint being Pandesara Police Station, Surat I C.R. No.183 of 2007 lodged by the respondent No.3 herein. 3. By an order dated 21st February, 2008, this Court had issued notice and by way of ad interim relief, had stayed further investigation in respect of the aforesaid complaint qua the present petitioners. In response to the notice, the respondent No.3 has entered appearance through Mr. Y.S. Lakhani, learned advocate and has filed a detailed affidavit-in- reply. On behalf of respondent No.2, an affidavit-in-reply has been filed by the concerned PSI of Pandesara Police Station. The petitioners have filed an affidavit-in-rejoinder in response to the affidavit-in-reply filed by the respondent No.2. 4. Criminal Misc. Application No.4058 of 2008 has been filed by the respondent No.3 praying to vacate the ad interim relief granted by this Court vide order dated 21st February, 2008. Since the matter was argued at length on the question of interim relief, this Court had thought it fit to hear the main Special Criminal Application along with the application for vacation of interim relief. 5. The facts of the case stated briefly are that the respondent No.3 Rameshbhai Vallabhbhai Kevadia had lodged a complaint before the Pandesara Police Station which came SCR.A/313/2008 3/10 JUDGMENT to be registered as I C.R. No.183 of 2007 alleging that the accused No.1 to 5 along with the petitioners herein had hatched a conspiracy and forged a bogus power of attorney and possession receipts with a view to usurp the petitioners' land bearing survey No.75/2, Block No.126 of village Bamroli, Pandesara as well as had trespassed over the said lands and threatened to kill the watchman. 6. Mr. S.K. Gadhvi, learned advocate for the petitioners has submitted that the petitioners are bona fide purchasers of the lands in question, who had purchased the land from the accused No.5 who is the power of attorney holder of the original land holders. It is submitted that possession of the plots was handed over to the petitioners and other persons by executing possession receipts and that the petitioners are also paying taxes to the Surat Municipal Corporation. It is submitted that the petitioners came to know that as the property in question has been included within the limits of the Surat Municipal Corporation, the original land owners and the complainant are going to sell the entire plots of the ownership of the petitioners and others by creating and executing a bogus and forged power of attorney, hence the petitioners made a complaint to the Commissioner of Police, Surat city. However, the same was not registered as a First Information Report. It is submitted that with a view to prevent the complainant and the accused No.1 to 5 from selling the lands in question, the petitioners have filed a Regular Civil Suit before the learned Civil Judge, Surat being Regular Civil Suit No.363 of 2007. It is contended that the complaint in question has been lodged as a counter blast to the civil suit filed by the SCR.A/313/2008 4/10 JUDGMENT petitioners as well as against the report of the Court Commissioner appointed in the civil suit, wherein a panchnama had been drawn indicating possession of the petitioners. It is, accordingly, urged that the First Information Report has been filed with a mala fide intention by the complainant in collusion with the police personnel to coerce the petitioners to settle the civil dispute. It is, accordingly, submitted that assuming that the alleged offence pertaining to forgery has been committed by any of the accused, the same is sub-judice before the Civil Court and therefore, the Court taking up criminal matters is not required to take cognizance thereon and that therefore, the First Information Report in question is required to be quashed. It is submitted that the investigation can be proceeded against the accused No.1 to 5 and if during the course of trial, the learned trial Judge is of the view that there is any evidence pointing towards the guilt of the petitioners, in view of the provisions of section 319 of the Code, the petitioners can be arraigned as accused even at that stage. It is accordingly submitted that no case is made out for vacating the interim relief granted by this Court and that the petition is required to be allowed by quashing the First Information Report in question. In support of his submissions, the learned advocate for the petitioners has placed reliance upon the decision of the Supreme Court in the case of Ajay Mitra v. State of M.P. and others (2003) 3 SCC 11 and in the case of Inder Mohan Goswami and Anr v. State of Uttaranchal & Ors., AIR 2008 SC 251. 7. On the other hand Mr. Y.S. Lakhani, learned advocate for the respondent No.3 has vehemently opposed the petition. It is SCR.A/313/2008 5/10 JUDGMENT submitted that the respondent No.3 herein had purchased the land in question by way of a registered sale deed dated 31st January, 2002. It is pointed out that prior to the execution of the sale deed, a public notice had been issued on 5.1.2002 calling for objections from interested persons. It is submitted that pursuant to the sale deed, the name of the HUF of the respondent No.3 had been entered in the revenue record and the mutation entry had been certified on 2.4.2002. It is submitted that the petitioners were in exclusive possession of the land in question, however, on 26.7.2007 overnight, outsiders have encroached upon the lands in question. It is submitted that the petitioners herein are part of the conspiracy to grab the land in question from the respondent No.3. 8. The learned advocate for the respondent No.3 has submitted that all the documents pertaining to the transaction alleged to have been entered into with the petitioners herein are forged. It is pointed out that on the basis of such forged documents, the name of the petitioners have been entered in the record of the Surat Municipal Corporation and tax has been paid in respect of the said property. It is pointed out that on the same day, the civil suit has also been filed. 9. Referring to the power of attorney annexed with the petition, it is pointed out that the power of attorney is stated to have been executed on 12.7.1993, whereas the stamp of the Executive Magistrate, even if the same can be said to be genuine, bears the date 15.6.1993. It is further pointed out that the power of attorney bears the thumb impression of one SCR.A/313/2008 6/10 JUDGMENT Deviben Babubhai who had already expired on 22nd February, 1993, much prior to the alleged execution of the power of attorney. It is further pointed out that some of the persons who are alleged to have signed the said power of attorney have, to the information of the respondent No.3, also given statements before the police specifically denying the fact that they have signed the said document. That such persons have also given a public notice saying that they have not signed any such power of attorney as projected. A copy of the public notice has been annexed as Annexure R4 to the affidavit-in- reply. It is further submitted that the land in question falls within the limits of the Surat Urban Development Authority (SUDA) since 1986 and that to the best of the knowledge of the respondent No.3, the said land was under reservation. It is the case of the respondent No.3 that no development permission or NA permission for converting the agricultural land into NA land has been granted till date. That the permissions in question are stated to have been signed by Sarpanch Shri Kantibhai R. Patel who has already published a public notice in his capacity of Sarpanch of the said Panchayat specifically clarifying that no such permissions have ever been granted by the Panchayat under his signature and that such permissions are forged. 10. It is further alleged that the petitioners have deliberately not produced the copies of the possession receipts on the strength of which they have based their claim to the land in question. The respondent No.3 has annexed two sets of possession receipts which he has obtained under the Right to Information Act. Drawing attention to the first set of SCR.A/313/2008 7/10 JUDGMENT documents, it is pointed out that the first ten possession receipts are of Rs.10/- stamp paper of the same number being 1205. It is contended that the same implies that the blank stamp paper of Rs.10/- was xeroxed and on each of the xerox copies, the alleged possession receipts have been created. It is further pointed out that the second set of possession receipts indicate the date of possession receipt to be 14th February, 1994. However, in each case, the same is purchased in the subsequent month i.e. in the month of March, 1994. It is accordingly submitted that the aforesaid documents clearly indicate that all the documents are forged either by way of possession receipts, the permission to construct or the power of attorney and that on the basis of such forged documents, all the accused persons including the present petitioners have made an attempt to grab and encroach upon the land belonging to the HUF of the respondent No.3. The learned advocate for the respondent No.3 has, accordingly, urged that in view of the overwhelming evidence against all the accused persons including the petitioners herein, it cannot be said that no case is made out against the petitioners herein. It is submitted that it is settled legal position that the first information report can be quashed only in case the Court comes to the conclusion that even if the allegations made therein are taken to be true in their entirety, if no offence is made out on the face of the allegations made in the first information report. It is submitted that in the facts and circumstances of the present case, it is evident that it cannot be said that no offence as alleged is made out, in the circumstances, the petition being devoid of any merit, deserves to be dismissed and the interim relief granted vide order dated 21st February, 2008 is required to be vacated. SCR.A/313/2008 8/10 JUDGMENT 11. Considering the averments made in the affidavit-in-reply filed on behalf of respondents No.2 and 3 as well as upon perusal of the documents annexed thereto, prima facie, it cannot be stated that the documents on which reliance is placed upon by the petitioners are not forged or fabricated. The possession receipts on which reliance is placed upon by the petitioners for basing their claim to the land in question, as pointed out by the learned advocate for the petitioners, appear to be forged and fabricated. It has been alleged in the first information report that the petitioners herein have forcibly entered upon the lands in question and have threatened the watchman engaged by the respondent No.3. On behalf of respondent No.3, copy of order dated 24.3.2008 passed by the Executive Magistrate, Surat in proceedings under section 145 of the Code has been annexed which shows that the Executive Magistrate has come to the conclusion that the possession of the lands in question has been illegally taken over by the petitioners herein from the respondent No.3 and it has been held that the respondent No.3 is entitled to the possession of the same. 12. In view of the evidence coming on record, this Court is of the view that it cannot be stated that no offence as alleged in the First Information Report can be said to have been made out against the present petitioners. It is settled law that while exercising powers under section 482 of the Code, the Court would be justified in quashing any proceedings if it finds that initiation/ continuation of which amounts to abuse of the process of Court or quashing of these proceedings would SCR.A/313/2008 9/10 JUDGMENT otherwise serve the ends of justice, the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved whether the factual or legal are of magnitude and cannot be seen in their true perspective without sufficient material. 13. Upon an overall view of the matter, in the present case, the facts are incomplete and hazy and the investigation is still at a nascent stage, this Court is of the view that when it cannot be said that the allegations in the First Information Report taken at their face value and accepted in their entirety, do not constitute the offence alleged, this Court would normally not exercise its inherent powers to quash the complaint. Though, the learned advocates for the parties have referred to the documentary evidence on the record in detail, this Court does not deem it fit to express any view thereon at this stage, as the same would be likely to have a bearing on the investigation which is being carried out by the Investigating Officer as well as on any further proceedings pursuant thereto. 14. For the foregoing reasons, this Court does not find any merit in the petition so as to call for any intervention by this Court. The petition is accordingly dismissed. The interim relief granted vide order dated 21.2.2008 is hereby vacated. SCR.A/313/2008 10/10 JUDGMENT 15. In view of the aforesaid, Criminal Misc. Application No.4058 of 2008 stands allowed. (HARSHA DEVANI, J.) shekhar/-