SCR.A/1060/2008 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1060 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 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 ? ========================================= KESARBEN JESANGJI W/O LATE JESANGJI GABHAJI AND ANOTHER Versus BABULAL JAMNADAS PATEL AND OTHERS ========================================= Appearance : MR YN OZA, SENIOR ADVOCATE with MS ROMA I.FIDALIS for MS SRUSHTI A THULA for the Petitioners MR TUSHAR MEHTA for Respondent Nos.1 and 2 MR YS LAKHANI, SENIOR ADVOCATE with MR PRAVIN GONDALIYA for Respondent No.3 MR SV RAJU, SENIOR ADVOCATE for Respondent No.4 ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 04-05/08/2008 ORAL JUDGMENT 1. On Office submission dated 26.06.2008, the Hon'ble the Chief Justice ordered to list the matters mentioned therein before this Court. The matters mentioned therein are as under:- SCR.A/1060/2008 2/28 JUDGMENT I. Criminal Revision Application No.252 of 2007. II. Criminal Misc. Application No.7553 of 2008. III.Special Criminal Misc. Application No.1060 of 2008 (the present petition). IV.Special Criminal Misc. Application No.1061 of 2008 V. Special Civil Application No.13965 of 2007 VI.Special Civil Application No.9334 of 2007 VII.Special Civil Application No.28693 of 2007 VIII.Special Civil Application No.5256 of 2008 IX.Special Civil Application No.7572 of 2008 The aforesaid matters are notified before this Court since 08.07.2008. 2. Mr.Y.N.Oza, learned senior advocate for the petitioners, requested that all these matters be taken up as the Hon'ble the Apex Court has passed order on 05.05.2008 in Civil Appeal No.3356 of 2008 arising out of SLP (C) No.10129 of 2008 filed by one Shri Kashiram Patel (D) through LRS. and Others as under:- “Leave granted. SCR.A/1060/2008 3/28 JUDGMENT Having heard learned counsel for the respective parties, we are of the view that since the Writ Petition is pending decision and the present appeal is only against an interim order passed therein, the interest of justice would be best served if the High Court could be requested to hear out the Writ Petition as early as possible. We accordingly dispose of the appeal with a request to the High Court to dispose of the pending Writ Petition as early as possible, but preferably within a period of three months from date. In the meantime, the parties are directed to maintain status quo as far as the appellants' plot No.533 and any portion thereof, if included in the proposed road, is concerned.” 3. Looking to the controversy involved in the matter, with the consent of the learned advocates, it is deemed fit to take up individual matter rather than combining all the matters. At the request of the learned advocates for the respondents, the present petition is taken up first for hearing amongst the matters notified. 4. RULE. Mr.Tushar Mehta, learned advocate, waives service of Rule on behalf of respondent Nos.1 and 2, Mr.Y.S.Lakhani, learned senior advocate, waives service of Rule on behalf of respondent No.3 and Mr.S.V.Raju, learned senior advocate, waives service of Rule on behalf of respondent No.4. 5. The present petition is filed by Kesarben Jesangji and SCR.A/1060/2008 4/28 JUDGMENT Poonamji Jesangji Thakore against as many as four respondents. Respondent Nos.1 and 2 are represented by learned advocate Mr.Tushar Mehta. Respondent No.3 is represented by learned senior advocate Mr.Y.S.Lakhani. Respondent No.4 is represented by learned senior advocate Mr.S.V.Raju. 6. The learned senior advocate, for respondent No.3 informs the Court that respondent No.3 has expired on 04.07.2008 and therefore, the learned senior advocate need not make any submissions on behalf of respondent No.3. 7. Learned senior advocate for respondent No.4 made his submissions. The learned advocate for respondent Nos.1 and 2 adopted the arguments of learned senior advocate Mr.Raju and also made his own submissions. 8. The learned senior advocate for the petitioners submitted that a complaint under Sections 406, 420, 465, 467, 468 and 120-B of the Indian Penal Code was filed before the learned Judicial Magistrate First Class, Ahmedabad (Rural) being Criminal Case No.103 of 2008. A copy of which is produced at Annexure-A to the petition. 8.1 The learned senior advocate for the petitioners invited attention of the Court to the averments made in the petition SCR.A/1060/2008 5/28 JUDGMENT narrating the circumstances in which the petitioners were constrained to approach the learned Judicial Magistrate First Class. The relevant averments read as under:- “3.8 The petitioners state that on 29.3.2008 the petitioners approached Mr.Shashikant Trivedi, District Superintendent of Police Ahmedabad (Rural) requesting him to exercise his powers under section 154(3) of the Code of Criminal Procedure, but the petitioners were advised to approach the police station concerned and assured that they will get justice. 3.9 The petitioners state that thereafter the petitioner No.2 has filed a complaint on 29.03.2008 in this regard before the Sarkhej Police Station, but the same was not accepted. The petitioners state that as the private respondents are politically influenced and prominent builders hence the police did not accept the complaint. The petitioners state that the District Superintendent of Police instead of helping the petitioner to get justice informed the respondent No.1-Babulal Jamnadas Patel about the said complaint on telephone and did not initiate any action as the respondent No.1 is a sitting Member of Legislative Assembly in the ruling government. The petitioners state that if the records of the telephone / mobile of the District Superintendent of Police and the Police Inspector are called for, it will become crystal clear that there was a communication between the respondent No.1 and the above mentioned police officers inter se. The petitioners state that if the petitioners are proved wrong the present petition may SCR.A/1060/2008 6/28 JUDGMENT be dismissed with exemplary costs. 3.9A The petitioners state and submit that the D.S.P., Ahmedabad (Rural) instead of helping the petitioners informed the respondent no.1 about the said complaint so that he could take remedial measures against the complaint. The petitioners state that the script of the talks taken place inter se among the D.S.P., Police Inspector, Sarkhej and the respondent no.1 may be called for from the concerned mobile companies, which may prove the connivance. The petitioners state that in the similar matter, this Hon'ble Court (Coram: Hon'ble Mr.Justice M.R.Shah) passed an order dtd.30.11.2007 passed in Special Criminal Application No.918 of 2007. Copy of the order dtd.30.11.2007 is annexed hereto and marked as Annexure-'H' to this petition. The petitioners state that the order passed by the learned Magistrate goes contrary to the order passed by this Hon'ble Court though the learned Magistrate had taken note of the said order. The petitioners state that this Hon'ble Court in another similar matter pertaining to the block No.84 of the same Final Plot No.63, this Hon'ble Court (Coram: Hon'ble Smt.Justice Abhilashakumari) was pleased to pass order dtd.15.5.2008 granting status-quo qua land bearing block No.84 and final plot No.63. Copy of the order dtd. 15.5.2008 is annexed hereto and marked as Annexure-I to this petition. In another matter pertaining to Block No.533 of the same Final Plot, being Civil Appeal No.3356 of 2008 (Arising out of SLP (C) No.10129 of SCR.A/1060/2008 7/28 JUDGMENT 2008), the Hon'ble Supreme Court of India vide order dtd.5.5.2008 was pleased to grant status quo qua the appellants' plot No.533 and any portion thereof, if included in the proposed road. Copy of the order dtd.5.5.2008 is annexed hereto and marked as Annexure-J to this petition. The petitioners state that in the civil matter filed by the petitioners being Letters Patent Appeal No.353 of 2008, this Hon'ble Court was pleased to grant status quo as regards the final plot in consequence of the original plot No.80, which is the present petitioners land. Copy of the order dtd.13.5.2008 passed in Civil Application No.6006 of 2008 in Letters Patent Appeal No.535 of 2008 is annexed hereto and marked as Annexure-K to this petition. 3.10 The petitioners state that thereafter they sent copy of the said complaint to District Superintendent of Police, Ahmedabad (Rural) and Additional Secretary, Home Department with regard to the same on 31.3.2008, but up till now no actions have been initiated by the said authorities. 8.2 The learned senior advocate for the petitioners submitted that the petitioners are therefore before this Court praying that:- “9. (B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 11.4.2008 passed by the Judicial Magistrate, First Class, Ahmedabad (Rural) in Criminal SCR.A/1060/2008 8/28 JUDGMENT Complaint No.103 of 2008; and further be pleased to direct the Police Inspector, Sarkhej Police Station, Ahmedabad to initiate investigation under Section 156(3) of the Code of Criminal Procedure.” 8.3 The petitioners have also prayed for the interim relief in paragraph No.9 (C), which reads as under:- “9. (C) Pending admission, hearing and final disposal of this petition YOUR LORDSHIPS may be pleased to stay and suspend the implementation, execution and operation of the order dated 11.4.2008 passed by the Judicial Magistrate, First Class, Ahmedabad (Rural) in Criminal Complaint No.103 of 2008; and further be pleased to direct the Police Inspector, Sarkhej Police Station, Ahmedabad to initiate investigation under Section 156(3) of the Code of Criminal Procedure.” 9. The learned senior advocate for the petitioners submitted that the learned Magistrate passed order on 11.04.2008. A typed copy of which is produced at page Nos.28A to 28C. The learned senior advocate for the petitioners submitted that the learned Magistrate has taken note of the fact that the Collector, in its order in Review No.21 of 2005, has recorded that the application filed by the Power of Attorney was without date on which the Deputy Collector, Viramgam Prant passed order on 06.02.2002 in Land Appeal Case No.12 of 2001, whereby, 'New tenure land' was converted into, 'Old tenure land. This order was contrary to provisions of law and illegal; that the order was passed without proper investigation, which was not befitting to a responsible Class-I officer; that the SCR.A/1060/2008 9/28 JUDGMENT order is passed after thirty nine years of orders of grant which were passed in the year 1963; that the order is passed without any convincing reasons/affidavit seeking condonation. The Collector has also recorded that qua some of the survey numbers, the persons whose names do not appear in village Form No.7/12, have executed Power of Attorney and on the basis of such Power of Attorney, the holder of Power of Attorney filed the application before the Deputy Collector, which is granted. This order granting application is a nullity. The Collector has also recorded that in a Power of Attorney executed on 28.04.2000, it is mentioned that, “.............. qua this land we have executed a general Power of Attorney on 30.04.2003. The same is cancelled from today..........”. It is clearly established that the Power of Attorney dated 28.04.2000, produced before the Deputy Collector, is bogus and concocted one. 9.1 The learned senior advocate for the petitioners submitted that the learned Magistrate has observed in paragraph No.2 of the order as under:- “2. This Court has considered the facts of the case. It is clear from the record that, as per page No.32 – death certificate of Shantaben Thakore, who expired on 7.8.96, this was registered in record on 25-10-96, now if we see Power of Attorney at page, one it is dt.24-3-2000 or so and last page also shows deletion & correction of thumb & other signs. This both document prima facie creates suspicion & doubt SCR.A/1060/2008 10/28 JUDGMENT about its genuineness in eye of law.” 9.2 The learned senior advocate for the petitioners submitted that even after making aforesaid observations, the learned Magistrate did not think it fit to order inquiry under Section 156(3) of the Criminal Procedure Code (“the Code”, for short) and directed that the complaint be sent to Sarkhej Police Station for inquiry under Section 202 of the Code. The learned senior advocate for the petitioners submitted that the learned Magistrate ought to have given due consideration to the fact that the opponent is powerful enough to dodge the entire machinery of the Government which is evident from the order of the Collector, who was also transferred after she filed an affidavit before this Court in a matter relating to this very land. 10. The learned senior advocate for the petitioners invited attention of the Court to order dated 15.07.2005 passed by the Collector in a matter bearing No.LB/Review Case No.21/05. A copy of which is produced at Annexure-E to the petition. In the said case, the Collector was considering order dated 06.02.2002 passed by the Deputy Collector, Viramgam Prant, Ahmedabad on the basis of an application dated NIL made by the Power of Attorney of the opponent in Land Appeal Case No.12 of 2001, whereby the Deputy Collector was pleased to remove the condition of, 'new tenure and impartiable' and was pleased to grant the lands the status of, 'old tenure lands', whereby they become freely transferable. SCR.A/1060/2008 11/28 JUDGMENT 10.1 The Collector, after a detailed scrutiny of the entire record, passed a well considered order. The Collector applied its mind to all the relevant aspects of the case and took trouble to go to the root of the matter. While doing so, it was noticed that a fraud is committed, which resulted into loss of revenue to the State. The Collector, in its affidavit filed in a matter, has deposed that this very Deputy Collector has passed similar orders in approximately twenty such cases and has caused loss of about Rs.60 to 70 crores to the public exchequer. 10.2 The Collector held that mutation entry Nos.2932, 2952, 2956, 2966, 2947 and 2948 are illegal and are liable to be quashed. The Collector had issued show cause notices and after hearing all the parties, passed the order aforesaid. 10.3 In the above order itself, the Collector has recorded that the application was filed by one Shri Babubhai Jamnadas Patel – respondent No.1 herein as the Power of Attorney Holder of the applicants of the application which was accepted by the Deputy Collector and order impugned was passed, which is contrary to express provisions of law and hence illegal. 10.4 The Collector has also recorded in its order that the Deputy Collector in its final order included survey No.38/2 though the possession holders of the said land had never filed any SCR.A/1060/2008 12/28 JUDGMENT application and no material was produced before him to show that the possession holders of survey No.38/2 had executed any Power of Attorney in favour of Shri Babubhai Jamnadas Patel. Despite that, the Deputy Collector passed order with regard to survey No.38/2 also which was bad in law right from its inception. There are many other illegalities and not the irregularities committed in the matter which are noted and recorded by the Collector in its order. 10.5 The Collector has also recorded that the application was filed by the Power of Attorney Holder of 23 persons. On perusal of the Power of Attorney documents produced on the record, the persons mentioned at serial Nos.1/1, 7 and 9 in the application have not executed any Power of Attorney. Besides, the co-possession holders of Block No.84 and six other persons, whose names appear at serial Nos.15 to 20 in the Power of Attorney, have though not signed the document, an order is obtained. 10.6 Last but not the least the Collector has also mentioned that the person mentioned at serial No.4/1 – Shantaben Gabhaji has died on 01.08.1996 and still a Power of Attorney was executed on 24.03.2000, wherein a thumb impression was made which was later on scored of. Acting on the basis of this Power of Attorney, the application was filed before the Deputy Collector and relief was sought. Thus a fraud is committed. The Collector, has in no SCR.A/1060/2008 13/28 JUDGMENT uncertain terms, recorded that by creating a Power of Attorney in the name of a deceased person, an application was filed and order was obtained. Once there is no valid Power of Attorney, even prima facie, the application was made on the basis of such Power of Attorney, was neither maintainable nor acceptable. 10.7 What falls for consideration of this Court is that the learned Magistrate, having observed as aforesaid in paragraph No.2 of its order, for no valid reasons, passed an order of 'inquiry and report under Section 202 of the Code only'. 11. Mr.Raju, learned senior advocate for respondent No.4 vehemently opposed the petition. The learned senior advocate analyzed Section 202 of the Code and submitted that under Section 202 of the Code, the Magistrate has four options, (1) of issuing process, (2) of ordering a police inquiry under Section 156(3) of the Code, (3) ordering an inquiry either by Police Officer or by a person who is not a Police Officer under Section 202 of the Code and (4) to dismiss such complaint. 11.1 Later on, arguing on the next day, the learned senior advocate for respondent No.4 submitted that Section 202 of the Code is amended. He invited attention of the Court to the amended Section 202 and submitted that under the amended Section, the legislation has taken away the discretion of the Magistrate of SCR.A/1060/2008 14/28 JUDGMENT issuing 156(3) inquiry in case the accused is residing at a place which is beyond the area in which the Magistrate is exercising his jurisdiction. 11.2 The learned senior advocate for respondent No.4 submitted that respondent No.4 is not residing within the jurisdiction of the learned Magistrate and therefore, qua respondent No.4, the learned Magistrate had no option and no power to order an inquiry under Section 156(3) of the Code. He submitted that only order which could have been passed is already passed by the learned Magistrate and that order is not required to be interfered with by this Court. 05.08.2008 12. The learned senior advocate for respondent No.4 submitted that the petitioner is not able to suggest any ground on which the request of the petitioner can be considered and granted and an inquiry under Section 156(3) of the Code can be ordered. The learned senior advocate invited attention of the Court to Section 465 of the Code and submitted that finding or sentence can be reversed only when there is an error, omission or irregularity. He relied upon the provisions of Section 465 of the Code which read as under:- “465.Finding or sentence when reversible by reason or SCR.A/1060/2008 15/28 JUDGMENT error, omission or irregularity.--(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) ....................” 12.1 In the considered opinion of this Court, this has no role in the facts of the present case. 13. The learned senior advocate for respondent No.4 relied upon a decision of this Court (Coram: Hon'ble Ms.Justice H.N.Devani) in the matter of Neel Dilip Shah and Others Vs. The State of Gujarat and Another in Criminal Misc. Application No.3066 of 2007 dated 29.02.2008. The learned senior advocate for respondent No.4 relied upon paragraph Nos.31 and 32 of the said judgment which read as under:- 31. The principal contention raised by the learned Senior Advocate is that on account of non-compliance with the mandatory provisions of sub-section (1) of the section 202 of the Code, the issue of process was bad. In this regard, it would be necessary to refer to the provisions SCR.A/1060/2008 16/28 JUDGMENT of section 202 of the Code, which reads as under: “Section 202 – Postponement of issue of process. - [1] Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- [a] where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or [b] where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. [2] In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: SCR.A/1060/2008 17/28 JUDGMENT Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. [3] If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” 32. A plain reading of the said provision shows that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit postpone the issue of process against the accused, and (i) either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus, it is well within the discretion of the concerned Magistrate to postpone the issue of process if he thinks fit. However, by the amendment of 2005, sub-section (1) of section 202 has been amended, which makes it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there is sufficient ground for proceeding against the accused. This has been done to see that innocent persons are not harassed by unscrupulous persons. Thus, in view of the amendment in case where the SCR.A/1060/2008 18/28 JUDGMENT accused is residing beyond the area in which he exercises jurisdiction, the discretion of the Magistrate is taken away, and it becomes mandatory for him to postpone the issue of process till inquiry as envisaged under sub-section (1) of section 202 is made.” (emphasis supplied) 13.1 The submissions of the learned senior advocate for respondent No.4 do not find support from the aforesaid observations of the learned Single Judge. 14. The learned senior advocate for respondent No.4 next relied upon a decision of this Court in the matter of Suresh Kumar Gupta Vs. State of Gujarat, reported in 1998 (1) GLR 327. the learned senior advocate for respondent No.4 relied upon observations made by this Court in paragraph Nos.8, 9, 10, 11 and 12. In paragraph No.12, the Court has observed as under:- “There is a common complaint that