CR.MA/2233/1999 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2233 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ==================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5. Whether it is to be circulated to the civil judge ? NO ==================================== MAVJI LAXMANBHAI DODIA & 3 - Applicants Versus STATE OF GUJARAT & 1 - Respondents ====================================A ppearance : NOTICE SERVED for Applicants. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED for Respondent No. 2. ==================================== CR.MA/2233/1999 2/11 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 27/11/2008 ORAL JUDGMENT 1. The petitioners – original accused have filed this application under Section 482 of the Criminal Procedure Code praying for quashing and setting aside criminal proceedings of Criminal Case No.62/A of 1999 and the impugned order dated 01.03.1999 passed thereon. 2. This Court has issued notice on 12.04.1999 and interim relief in terms of paragraph 7 (B) was granted whereby criminal proceedings of Criminal Case No.62A of 1999 and the effect, execution and implementation of the impugned order dated 01.03.1999 passed therein were stayed. Thereafter, rule was issued on 28.06.1999 and interim relief granted earlier was ordered to be continued till further orders. 3. Subsequently, the learned advocate who appears on behalf of the petitioners was elevated as Judge of this CR.MA/2233/1999 3/11 JUDGMENT Court and hence, fresh notice was issued on the petitioners on 30.09.1999. Notice was duly served on the petitioners. Despite service of notice, nobody appears till this date. It is also important to note here that notice was duly served on the respondent No.2 i.e. original complainant and despite service of notice, he never filed his appearance before this Court. 4. Since the application is more than 9 years old, the same is taken up for final hearing. 5. It is the case of the petitioners – original accused that the complainant and the accused are brothers and relatives. The original complainant is son of the uncle of accused Shri Mavji Laxman (petitioner No.1). The original complainant, since many years, sold away his share of land in the hereditary land-holding of the family. But with a view to claim further share in the land held by the accused, he had adopted the tactics of harassing and pressurizing the accused by several frivolous cases and complaints. Accordingly, he has filed Regular Civil Suit No.1870 of 1996 and sought CR.MA/2233/1999 4/11 JUDGMENT injunction against the accused so that they may not deal with their own land. Having failed in obtaining an injunction, the respondent No.2 has also filed appeal No.35 of 1997 to effect changes in the revenue records in which Entry Nos.395, 396 and 397 were made about 30 years ago. Through a Power of Attorney, the respondent No.2 has also filed another Criminal Case No.89 of 1999 wherein even the advocate of the accused is implicated as the accused No.1. Under such circumstances, the petitioners were compelled to file Regular Civil Suit Nos.306, 307 & 308 of 1999 and obtained injunctions against the entry upon and interference in the use of the land held by the petitioners. In short, there are several litigations pending in the Civil Courts amongst the parties wherein respondent No.2 has failed so far to obtain any order in his favour. It is also the case of the petitioners that in the above backdrop of the facts, the respondent No.2 has, with a view to harass the petitioners, filed an absolutely false, frivolous and baseless complaint against the petitioners and the same is registered as Criminal Case No.62-A of 1999. CR.MA/2233/1999 5/11 JUDGMENT The petitioners have never intercepted the rickshaw of the respondent No.2 or threatened him as alleged. Even the complaint does not reveal the date of such alleged incident and the complaint neither cites anyone else as a witness nor does it reveal any reason for any investigation. As a matter of fact, the complaint does not disclose any offence under Section 506 (2) of Indian Penal Code. Even the number of the criminal complaint is 62 A of 1999 in which the reasons of applying “A” are suspicious. 6. It is also the case of the petitioners that taking cognizance of the complaint of the respondent No.2 and recording the nature of complaint as dispute regarding entries of the land, the learned Judicial Magistrate First Class has made the impugned order to send the complaint for investigation under Section 156 (3) of the Criminal Procedure Code. 7. The ground raised in the petition for challenging the criminal proceedings as well as the order passed by the learned Judicial Magistrate First Class is that the CR.MA/2233/1999 6/11 JUDGMENT complaint does not disclose even a prima facie case that a cognizable offence has been committed. The parties are actually involved in civil litigation and the complainant had avoided to approach the Police Station immediately after the alleged incident. Therefore, there were reasons to believe that the complaint was false and calculated to harass the accused by abuse of process of law. It is, therefore, contended that the criminal proceedings are required to be quashed as based on a false and frivolous complaint. It is further contended that even if it is assumed that the complaint had any substance, the learned Magistrate should have inquired into the complaint and after having applied his mind, he should have recorded the reasons before ordering an investigation by police under Section 156 (3) of the Criminal Procedure Code. It is further contended that the contents and allegations in the complaint as they stood, did not require any evidence that cannot be procured by the Court itself or the complainant could not produce. Hence, there was no reason or reasonable ground to send the complaint for CR.MA/2233/1999 7/11 JUDGMENT investigation by the police. 8. In support of the submissions, reliance was placed on the decision of this Court in the case of SURESH K. GUPTA V/s. State, (1998) 39 (1) GLR 327 wherein it is observed that in all cases where the complainant approaches the Court by private complaint, anything needed to prove case can be and has to be done by complainant. It is also observed by the Court that there is common complaint that the complainants approach the Magistrate with complaints and powers to direct investigation under Section 156 (3) are being exercised indiscriminately and Magistrates fall prey to the wicked mind of the complainants and the alleged accused persons are in the clutches of Police who investigate the same. The Court further observed that whenever a direction to inquire under Section 156 (3) of the Code is given, the said order or direction should be speaking one to reflect the reason why, for what material to be collected, he needs the police to investigate. It is, therefore, contended that in view of this settled legal position, the impugned order below CR.MA/2233/1999 8/11 JUDGMENT the complaint is required to be quashed and set aside. It is also contended that the original complaint and the criminal case is intended to put the accused to harassment, hardship, inconvenience and huge expenses so that the petitioners may toe the line of the complainant. The allegations made in the complaint are so absurd, contradictory and inherently improbable that on the basis of such material, no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused. It is, therefore, contended that the present proceedings are clearly initiated with malice and a malafide motive of wreaking vengeance on the accused due to the private grudge. 9. The above petition was filed on 06.04.1999. It was duly served on the respondent No.2 – original complainant. Neither any appearance is filed on his behalf nor any reply to this petition is filed. While perusing the complaint, it appears that the complainant has straightway filed this complaint in the Court. It is mentioned in the complaint that on the CR.MA/2233/1999 9/11 JUDGMENT date of filing the complaint i.e. 01.03.1999, the accused have intercepted the complainant's rickshaw between 1.00 to 1.15 p.m. Instead of approaching the nearby Police Station and lodging an FIR, the complainant has straightway filed the aforesaid complaint before the Judicial Magistrate First Class at Rajkot and on the same day i.e. 01.03.1999, the learned Judicial Magistrate, without making any further inquiry straightway passed an order under Section 156 (3) of the Criminal Procedure Code directing the Police Inspector to file his report after making necessary investigation in the matter. No reason whatsoever was assigned by the learned Magistrate despite the fact that the learned Magistrate has observed that dispute is with regard to an objectionable entry in relation to land. Though the learned Magistrate was of the view that the dispute is of civil nature, he has straightway passed the order under Section 156 (3). 10.While reading the complaint as a whole, it appears to the Court that the allegations made therein are false CR.MA/2233/1999 10/11 JUDGMENT and frivolous. In the complaint itself, the complainant has stated that he has to take advise from his brothers and hence, the complaint was filed after 24 hours. As a matter of fact, in the second paragraph of the complaint, it is specifically stated that today at about 01.00 to 01.30 p.m, when the complainant was driving his rickshaw and he was going towards Rajkot, his rickshaw was intercepted by the accused and on the same day i.e. 01.03.1999, the complaint was filed and order under Section 156 (3) was passed by the learned Judicial Magistrate. Thus, there is inconsistency and contradiction in the complaint. No witnesses have been cited in the complaint. There was already a civil dispute between the party which the Magistrate has taken cognizance of. 11.Considering all the above facts and circumstances and further considering the ground raised by the petitioners – original accused in the present petition and relying upon the judgment of this Court in the case of SURESH K. GUPTA V/s. State (Supra), this Court is of the view that Criminal Case No.62-A of CR.MA/2233/1999 11/11 JUDGMENT 1999 pending in the Court of learned Judicial Magistrate First Class, Rajkot and the order passed thereon dated 01.03.1999 deserve to be quashed and set aside. Accordingly, Criminal Case No.62-A of 1999 and the order passed thereon dated 01.03.1999 are quashed and set aside. This petition is allowed. Rule is made absolute. Sd/- [K. A. PUJ, J.] Savariya