IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1156 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
========================================================= 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 ?
========================================================= BHAILAL SHANABHAI BARIYA & 4 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) =========================================================
Appearance :
MR PY DIVYESHVAR for Applicant(s) : 1 - 5. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, KEDAR B BINIWALE for Respondent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 25/01/2012
ORAL JUDGMENT
1.00. Present petition under Article 226 of the Constitution of India read with section 482 of the Constitution of India has been preferred by the petitioners - original accused to quash and set aside the impugned First Information Report being CR No.I-217 of 2009 lodged by the respondent No.2 – original complainant with Makarpura Police Station, Vadodara for the offences punishable under sections 143, 147, 323, 504, 447, 427 of the Indian Penal Code.
2.00. The respondent No.2 – orignal complainant has lodged the impugned First Information Report with the Makarpura Police Statiion for the offences punishable under sections 143, 147, 323, 504, 447, 427 of the Indian Penal Code, alleging inter-alia that she is residing at Vadodrara and elder brother of her husband – Nayanbhai Surendrabhai Amin is residing at America and her father-in-law has purchased land bearing Revenue Survey No.264/3, situated at Manjalpur in the year 1993 from its original owner Bhaylalbhai Shanabhai Bariya and full consideration was paid to him. That as elder brother of her husband, in whose favour the land was purchased jointly with her mother-in-law, was residing at America, power of attorney is executed in her favour. It is further alleged that despite the repeated demand and request the said Bhailalbhai – original owner has not executed sale deed and on the contrary executed sale deed in favour of other persons and therefore, she has filed Special Civil Suit No. 147 of 2009 in the Civil Court. It is alleged that pursuant to the order passed by the learned Civil Court, a Panchnama was to be prepared on 15/3/2009 and therefore, to create evidence in their favour the accused persons came with other persons and attacked and entered into illegal possession of the disputed land and gave threats and even caused injury on her by wooden sticks. That Being aggrieved by and dissatisfied with the said First Information Report, petitioners - original accused have preferred present petition under section 482 of the Code of Criminal Procedure.
2.00. The learned advocate appearing on behalf of the petitioners has vehemently submitted that the petitioners have not committed any evidence, as alleged. It is submitted that as such the petitioners have earlier filed a complaint to the Police Inspector, Makarpura Police Station, Vadodara on 14/3/2009 against some other 15 unknown persons complaining that they have entered into the land in question, however, the same was not registered as First Information Report. It is submitted that as a counter-blast the impugned First Information Report has been filed against the petitioners. It is further submitted that even with respect to the very incident the complainant filed another complaint before the learned Sub-Divisional Magistrate in which only bond of the petitioners were obtained. It is submitted that even otherwise the dispute is of a civil nature which is tried to be converted into criminal proceedings by way of filing the impugned First Information Report and therefore, the same is nothing but abuse of process of law and court. It is further submitted that even the impugned First Information Report has been filed after a period of 20 days making the above submissions. Therefore, it is requested to allow the present petition.
3.00. Present petition is opposed by Mr.L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State. It is submitted that the averments and allegations in the First Information Report disclose prima facie cognizable offences which are further required to be investigated by the investigating officer. Therefore, it is requested not to exercise powers under section 482 of the Code of Criminal Procedure and not to quash and set aside the impugned First Information Report at this stage at the threshold and without further investigation.
4.00. Heard the learned advocates appearing on behalf of the respective parties at length.
5.00. From bear reading of the impugned First Information Report it appears that allegations and averments in the impugned First Information Report disclose prima facie cognizable offences which are required to be investigated by the investigating officer. On bear reading of the impugned First Information Report it cannot be said that it does not disclose cognizable offences which are not required to be investigated. Whatever has been submitted by the petitioners are their defences which are required to be considered by the investigating officer during the course of investigation / trial.
5.01. As observed by the Hon'ble Supreme Court reported in (2011) 12 SCC 437, only if the complaint does not disclose any offence or is frivolous, vexatious or oppressive, High Court, in exercise of powers under section 482 of the Code of Criminal Procedure, can quash the complaint. It is further observed by the Hon'ble Supreme Court in the said decision that High Court cannot go into the meticulous analysis of the facts while considering the petition under section 482 of the Code of Criminal Procedure. Under the circumstances, no case is made out to exercise powers under section 482 of the Code of Criminal Procedure and to quash and set aside the impugned First Information Report at the threshold, without further investigation.
6.00. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. However, it is observed that while conducting the investigation, the investigating officer is bound to consider all the aspects of the matter inclusive of the case of the petitioners, in accordance with law. Rule is discharged. Interim relief granted earlier stands vacated forthwith.
rafik [M.R. SHAH, J.]