IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 7779 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KISHORSINH (KABHAI) MALUJI CHAUHAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR ND NANAVATI FOR MR YOGESH S LAKHANI for Petitioners MR AD OZA, PP WITH MR PRADIP D BHAATE APP for Res. No. 1 MR RAMNANDAN SINGH for Res. No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 30/09/2004 ORAL JUDGEMENT 1. Upon the joint request of the learned counsels appearing for the parties, the matter is heard and decided finally at the admission stage. 2. This Criminal Misc. Application is filed by two of the accused of First Information Report registered before Panigate Police Station vide CR No. I-398 of 2003 for quashing the said First Information Report under Section 482 of the Criminal Procedure Code. Although, vide amendment, a prayer is also made to direct the investigation of the complaint being CR No. I-398 of 2003 to be investigated by any independent agency not under the control of Vadodara Police Commissioner. 3. Essential facts of the chequered history of this litigation are as under : 3.1 A plot of land, situated at village Savad, District Baroda, bearing Revenue Survey No. 295 and 292/ 2 TP Scheme No. 5, Final Plot No. 622, admeasuring 3205 sq. meters is owned by Kalidas Chhotabhai Mali, Motibhai Shankarbhai Mali, Mangalbhai Josingbhai Mali and other owners, and they intended to sell the above said plot of land. A public notice was got published in a newspaper dated 11th of May, 2002 through Advocate Vijaykumar J. Shirke, purporting to be on behalf of purchaser, declaring that his client was interested in the said plot of land, and if anybody has any kind of interest in the said land, may contact at the office of said Advocate, who was to give Title Clearance Certificate in respect of said land. Learned Counsels appearing for the parties stated that the said 3205 sq. meters land if converted into square feet, it comes to 34,489 sq. feet. Upon the said land, 11 persons named as (1) Rahimaben Anwarbhai Vora, (2) Mohanbhai Lakhabhai Savaliya (present respondent No.2), (3) Dharmendra Punamchand Parmar, (4) Sanabhai Devjibhai Parmar, (5) Nanubhai Muljibhai Parmar, (6) Champaben Valjibhai Purshottambhai Shrimali, (7) Dineshkumar Premjibhai Barot, (8) Baldevbhai Muljibhai Pandya, (9) Anwarbhai Mohammadbhai Vora, (10) Jayantilal Ambalal Prajapati and (11) Pravinbhai Dalsukbhai Shah, were staying in their houses constructed on some portion of the above said land. Some of them including present Respondent No.2 belong to scheduled caste. One of them, through his Advocate, also objected the said notice published on 11th of May, 2002 through learned Advocate Mr.Vijakumar Shirke. 3.2 On apprehension that they might be thrown out of their houses constructed on the said land forcibly, all 11 persons above named, approached Police Commissioner, Baroda City, on 11th of December, 2003 with an application. They stated in the application that the said plot of land was owned by the four persons i.e. Mangalbhai Jesingbhai Mali (deceased), Dahiben Maganbhai Mali (deceased), Kalidas Chhotabhai Mali and his brothers and (4) Motibhai Shankarbhai Mali, etc. They stated that before 20 years, through a registered document in the said land, they have constructed their houses which are independent and separate houses of each individual. Each of them were also awarded property cards through City Service Office, but the owners of the land and intended purchaser present petitioner No.1 being headstrong persons and petitioner No.1 being suspended P.I. and had been dealing in disputed properties, frequently threatened them to hand over the possession of the land after vacating the houses in which they resided. It was also averred that owners as well as petitioner No.1 sent headstrong persons to their houses and those persons threatened them. Therefore, it was requested that the original owners and the petitioner No.1 herein be prevented from committing anything wrong in respect of their property in government and semi government offices. They also produced along with the application the property card and other details. The said application dated 11th of December, 2003 was signed by all 11 above named persons. 3.3 It appears that on receiving the said application Commissioner of Police directed these above named 11 persons to the Investigating Team, office of which is situated near the Office of Commissioner of Police. The Special Investigating Team, cause to be recorded different and separate 11 First Information Reports and sent them to respective Police Stations. Out of which, 8 First Information Reports were registered at Panigate Police Station, Baroda, while other three came to be registered before DCB Police Station, Baroda City, vide separate Crime Register Numbers at different time on 12th of December, 2003. 3.4 Thereafter six persons out of above mentioned 11 persons, on 15th December, 2003, again submitted an application to the Police Commissioner, Baroda City, in respect of their earlier application, which they had preferred on 11th of December, 2003. It was averred by these six persons after referring their earlier application dated 11th of December, 2003 and contents therein that in the earlier application, they never alleged that present petitioner No.1 or his son petitioner No.2 had been to their houses and on the said land and did not directly gave threats. They also averred in the said Application that in pursuance of earlier application dated 11th of December, 2003 when First Information Reports were registered and investigation started, they came to know that in said all First Information Reports, something else was recorded which they did not aver in application dated 11th of December, 2003. They also stated that in those circumstances they were compelled to give this application (15th December, 2003). 3.5 However, in respect of above said 11 offences registered against the present petitioners and original owners of the land, in all 18 persons, respective Investigating Agency started investigation. 3.6 The present petitioners, therefore, approached this Court with Criminal Misc.Applications No. 10420/03 to 10431/03, l1 in all, in respect of each First Information Report recorded against them with a prayer under Section 482 of the Criminal Procedure Code to quash and set aside each of the eleven First Information Report recorded at Panigate Police Station as well as DCB Police Station. 3.7 However, vide order dated 28th of January, 2004, all those 11 Criminal Misc. Applications No. 10420/2003 to 10431 of 2003 came to be dismissed by this Court. 3.8 Being aggrieved and dissatisfied by the above said judgment and order of this Court, present petitioners filed petitions being Special Leave to Appeal (Criminal) No.616 to 626 of 2004 before the Hon'ble Supreme Court of India. On request of learned counsels, Supreme Court of India was pleased to grant interim protection to the petitioners to the extent that the petitioners would not be arrested under the Prevention of Anti Social Activities Act, 1985 (PASA) nor would they be arrested in any of the offence based on each First Information Report, but Hon'ble Supreme Court permitted investigation in all the Fist Information Reports to be continued. 3.9 Before this Court in the above said Criminal Misc. Application and also before the Hon'ble Supreme Court in Criminal Appeal Nos. 787 to 797 of 2004 arising out of SLP (Criminal) Nos. 616 to 626 of 004, anxiety on the part of the petitioners was that 11 FIRs and 11 offences were registered against them because they might be detained under the Prevention of Anti Social Activities Act, 1985. The final decision of the Supreme Court in Criminal Appeal Nos.787 to 797 of 2004, is placed on record of this petition at Page 82 "Annexure'L" and as observed by the Supreme Court, the State made a declaration that the Commissioner of Police instructed the Investigating Officers that the incident of 11th of December, 2003 should be considered only in one FIR i.e. CR No. I-398 of 2003 for the purpose of fixing criminal culpability and for arresting the accused. It was also submitted by the State before the Supreme Court that the allegations in all the complaints would be investigated only in one First Information Report above noted and the accused would be arrested only in the said FIR in accordance with law. The Hon'ble Supreme Court further observed that : " this means that all the F.I.R.s would be considered as one being part and parcel of C.R. No. I-398/03. In view of this position, it is not necessary to quash the remaining F.I.R.s on the ground that all of them arise out of the same incident. We may note that in the affidavit of the respondent above referred, it is their own case that it was a common incident of 11th of December, 2003. Under these circumstances, there is no basis for the apprehension of the appellants that separate complaints were registered with a view to invoke PASA against them." 3.10 The petitioners through their learned Senior Counsel requested the Supreme Court to quash the remaining FIRs as the the matter between the complainants and the petitioners was settled. In this respect, the Hon'ble Supreme Court pleased to observe as under: "We are unable to accept the contention at this stage since there appears to be some dispute about facts which may have to be gone into at an appropriate stage by an appropriate forum. In this connection, Mr. Madhukar, learned counsel for the State has drawn our attention to the public notice dated 11 May, 2003 which refers to an intention to purchase land of an area of 3205 sq. meters (34489 sq. ft) whereas the agreement to sell is in respect of about 16,000 sq. ft. Further, according to submissions made by learned counsel for the State, the appellants and their henchmen have committed the offences and the matter is still to be fully investigated. In this state of affairs, we express no opinion except observing that in case a petition is filed for quashing the F.I.R. on the ground that the matter has been settled, the same would be decided on its own merits uninfluenced by the impugned judgment of the High Court or this court." 3.11 It is important to note that before the Supreme Court, out of those 11 persons, Mohanbhai Lakabhai Savaliya (present respondent No.2), Dharmendra Poonamchand Parmar, Sanabhai Devjibhai Parmar, Nanubhai Muljibhai Parmar, Champaben Valjibhai Purshottambhai Shrimali, Dineshkumar Premjibhai Barot, Baldevbhai Muljibhai Pandya, Anwarbhai Mohammadbhai Vora, Jayantilal Ambalal Prajapati and Pravinbhai Dalsukhbhai S Shah, preferred affidavits, copy of which are placed on record at page 62 as Annexure-'K'. It is also pertinent to note that all these persons preferred affidavits before this Court in said Criminal Misc. Applications, copies of which are produced at page 15 as Annexure-"E". In affidavits filed before the High Court the stand of these persons, was, after the notice was published, certain persons who were looking dangerous persons started coming and threatening to house owners by stating that they were the men of Kavabhai Chauhan (petitioner No.1), they used to give threat to vacate from this house and hand over the possession of the house, but none of them had ever seen either present petitioner No.1 or petitioner No.2 personally and none of the present petitioners administered threats to any of the above 11 persons. While before the Hon'ble Supreme Court in the affidavits, it was maintained that public notice issued by original owners of the land was objected by them and they had filed a common representation before the Commissioner of Police on 11th December, 2003. It is also maintained in the affidavit by each of these persons that the First Information Reports contained certain statements, which none of them had made before the Commissioner of Police and, therefore, an application before the Police Commissioner by six persons was tendered on 15th December, 2003. Ultimately, it was also maintained that none of the petitioner came at the place of dispute and threatened any of them. It was also stated that none of them had any grievance against present petitioners if they did not seek to take possession of their land. 3.12 It is pertinent to note also that out of 34489 sq. feet of the said land, present petitioner No.2 vide one agreement to sell dated 11th August, 2003, agreed to purchase only 16,000 sq. feet pit land from original owners of the land, which obviously, did not include the land, on which the houses of said 11 persons were standing. A copy of the said agreement is placed on record as Annexure-"G" at page 39 of compilation of this petition. It is also pertinent to note that both the petitioners before this Court in said Criminal Misc. Application, filed undertakings to the effect that they have purchased only 16,000 sq. feet pit land and were not concerned with the land on which the houses of said 11 persons were standing. 3.13 On the above factual matrix and in pursuance of the observations made by the Hon'ble Supreme Court that in respect of one FIR i.e. I-398/03 in case a petition is filed for quashing the said FIR on the ground that matter has been settled, the same would be decided on its own merits uninfluenced by the impugned judgment of the Supreme Court or this Court, this Criminal Misc. Application is preferred by the petitioners. 3.14 It is pertinent to state the facts of First Information Report, registered as Crime Register No. I-398/2003, which is subject matter of this Petition. Free translation of the said FIR is as under : The FIR is lodged on 12th December, 2003 at 1.25 hours, wherein the occurrence of offence is indicated at 21.00 hours on 10th December, 2003. There are in all 18 accused including present petitioners. Respondent No.2 herein Mohanbhai Lakhabhai Savaliya launched this First Information Report and stated that he resided at Mitimatru, Vadanana, near Jangleshwar Mahadev Kishanwadi, Ajwa Road,Vadodara. He ran rationing shop at his house. In addition to that, he was Ex-councillor of Congress and social worker. The house in which he resided owned by his wife Maniben Madhurbhai Parmar @ Maniben Mohanbhai Savaliya. To construct house, they purchased land from (1) Mangalbhai Jesingbhai Mali, (2) Dahiben Maganbhai Mali, (3) Kalidas Chhotabhai Mali, (4) Shankar Jesingbhai Mali, vide registered Document dated 17th March, 1983, and described as TP Scheme No.5, 5075 sq. feet out of Final Plot No.622 and the document was possessed by him. They resided at this place from 1980. They were owners of land and house through registered document and, therefore, the houses registered in their names as owners in City Survey Record. They belonged to Scheduled Caste. On 11th May, 2003, in Gujarati Newspaper "Gujarat Samachar" daily, the owners of the land gave one public notice through their Advocate Shri V.J. Shirke for title Clearance about the land, on which they (respondent No.2) and other persons resided and other land surrounding to their land with the intention that the land owners intended to sell the said land. Therefore, they preferred objection application and came to know that the whole land including the land owned by them totalling to 3205 sq. meters land was purchased by suspended Police Officer Kabhai Chauhan (petitioner No.1). Thereafter, the land in which one pond was there was being developed after drawing water from the pond by Kabhai Chauhan, his son Brijesh Chauhan, brokers Chandrasekar Ganapatrai Bhatekar and other persons though they were not concerned with said pit land. However, two brokers and Brijesh Chauhan frequently came to him and two other house owners, and used to give threats stating that the whole area had been purchased by them and all the house dwellers including him to vacate the house and to resile from the area or else, Kabhai Chauhan had authorised them that if house dwellers refused to vacate the houses, then they should be killed and authorised to do anything, and that he (Kabhai Chauhan) would take care of everything. On giving threats like that, on 4th September, 2003, Vijay, son of informant had quarreled with opposite party and they preferred a complaint in court for this. The opposite party also quarreled with Anwarbhai Mohammadbhai Vora, residing in that area and they filed Chapter Case. Similar threats were administered by opposite party to Dineshkumar Premjibhai Barot also and hence threats were administered to them to vacate the houses and to hand over the land. Informant with other residents of the area on 10th December, 2003 at 9'O clock at night discussed about what legal steps should be taken, which was over-heard by one Moti Shankar Mali residing nearby. Moti Shankar Mali conveyed discussion to Brijesh Chauhan and, therefore, on the day of incident, i.e. on 11th December, 2003, at about 7.30 in the morning, Moti Shankar Mali came to his shop for purchasing kerosene and started to pick up quarrels and stated that the informant had become a leader but leadership would be made costly to him. In the meantime, (1) Mahiji Mangal Mali, (2) Kalidas Chhota Mali, (3) Govind Chhota Mali, (4) Mohan Chotta Mali, (5) Shana Chhota Mali, (6) Sukha Chhota Mali, (7) Shantaben Kalidas Mali, (8) Ashok Kalidas, (9) Ramesh Kalidas, (10) Mohan Shankar Mali, (11) Vithal Shankar Mali, (12) Mukesh Vithal Shankar, (13) Prakash Motibhai, (14) Santosh Vithal, came at the shop of the informant and Chandrasekar Bhatekar and Mukesh Parmar also came there. At that time, Kabhai Chauhan stood in the mohalla and sent his son Brijesh, and all of them quarreled with informant (respondent No.2). (1) Rahimaben Anwarbhai Vora, (2) Pravinbhai Dalsukbhai Shah, (3) Jayantilal Ambalal Prajapati, (4) Nanubhai Muljibhai Parmar, (5) Dineshbhai Premjibhai Barot, (6) Revaben Manilal Parmar, (7) Sanabhai Devjibhai Parmar, (8) Baldevbhai Muljibhai Pandya, (9) Champaben Valjibhai Shrimali, (10) Saradaben Punamchand Parmar and gave dirty abuses, threatened to kill all the residents of that mohalla. It was stated by the accused that if the residents of mohalla did not vacate the houses, the houses would be burnt and their families would also be burnt. When this quarrel pick up serious turn, the accused ran away from the spot. Therefore, Kabhai Chauhan, who is government officer to extort their property with the help of his son Brijesh Chauhan and brokers Chandraksekar Bhatekar and Mukesh Parmar, instigated heirs of land owners and administered filthy abuses and threatened to burn all of them in their houses and threatened to vacate the houses. All of them met Police Commissioner and represented in person. Police Commissioner sent him to the Police Station for lodging an FIR and therefore they gave this complaint. 3.15 Assistant Commissioner of Police, Vadodara City, Mr. R.J. Pargi, filed affidavit-in-reply, which is at page 108 and further additional affidavit which is at page 117 to the compilation of the petition. Rejoinders to the affidavits are also filed by the petitioners at page 112 and at page 124 of the compilation of this petition. 4. Learned Senior Counsel Mr. N.D. Nanavati on behalf of the petitioners, learned Public Prosecutor Mr. A.D. Oza for Respondent No.1 State and learned Advocate Mr. Ramnanadan Singh for Respondent No.2 were heard at marathon length. 5.1 Main stress of the contentions raised on behalf of the petitioners is on resolution of skirmishes between the petitioners and 11 persons. The first and foremost contention was raised that since the matter has been amicably settled between the parties, no useful purpose is going to serve to allow to continue the investigation and thereafter prosecution. My attention was drawn to various affidavits filed by informants of First Information Reports wherein categorically they stated that none of the petitioner ever approached to any of the 11 informants and threatened. It was therefore argued that even if at the end of investigation if the charge sheet is at all filed, there are bleak chances for conviction. For this contention, heavy reliance is placed on a decision of the Supreme Court in the matter of B.S. JOSHI AND OTHERS vs. STATE OF HARYANA AND ANR., as reported in (2003) 4 SCC 675. My attention was drawn to paras 8, 9, 10 and 11 of the decision of the Supreme Court wherein in a matrimonial matter, when a husband approached High Court to quash First Information Report filed by wife in respect of offence registered against the husband and his relatives under Sections 498-A, 323, and 406 of the Indian Penal Code on the ground of amicable settlement between husband and wife, and when High Court refused to quash the said First Information Report on preferring Appeal to Supreme Court, in this decision, the Apex Court observed that for the purpose of securing the ends of justice, quashing of the FIR becomes necessary. It was also observed that Section 320 of the Code of Crimina Procedure would not be a bar to the exercise of power of quashing. My attention was also drawn to the observation of the Supreme Court in para-9, wherein the Apex Court observed that it was, however, to be borne in mind that in the said case the appellants had not sought compounding of the offences, but they approached the court seeking quashing of FIR under the circumstances stated. It was also urged placing reliance on the observations made by the Apex Court in the above said decision in paras 10 and 11 after relying on the decision of the Supreme Court in the matter of State of Karnataka vs. L. Muniswamy, as reported in (1977) 2 SCC 699 and in the decision of Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre, as reported in (1988) 1 SCC 692, that in such eventuality, there would almost be no chance of conviction, and it would not be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. It was, therefore, contended that even if the trial is proceeded against the petitioners, the informers in view of the affidavits they have placed on record of this Court and on the record of the Supreme Court, are not likely to support the prosecution case and there are no chances at all of conviction, therefore, no purpose would be served in continuing the investigation reaching upto the stage of launching prosecution. It was contended that it would be in the interest of justice, in other words to secure the ends of justice, to quash the FIR on the ground of settlement arrived at between the informants and present petitioners. It was stated that the present petitioner No.1 is suspended P.I. He has some conflict with his Department and for venting some other grudge, Police Department, even after clear and categorical declarations made by the informants, as above said, objects quashing of First Information Report and continues the investigation to harass the present petitioners. It was contended that when parties have decided to live in peace, after settling their skirmishes, the State must not object to maintaining peace between the parties. 5.2 The First Information Report in question is also challenged on the ground that the said FIR does not disclose prima facie commission of offence by the petitioners. It was urged that the petitioners along with other accused are charged with offences punishable under Sections 166, 387, 504, 506, 143 and 114 of the Indian Penal Code as well as some charges under the Scheduled castes and the Scheduled Tribes Prevention of Atrocities Act, 1989. It was urged that there is no whisper at all in the First Information Report as to attract any of the ingredients of offence constituting under