IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 7666 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA :
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 ?
======================================================= SHANTABEN VAGHJIBHAI TANTI & 10....Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ======================================================= Appearance:
MR KB ANANDJIWALA, Sr. Adv. with MR ASHISH M DAGLI for the Applicant(s) No. 1 11 MR HL JANI APP for the Respondent(s) No. 1 PARTYINPERSON for the Respondent(s) No. 2 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 21/10/2013 ORAL JUDGMENT
1. The present application has been filed by the applicants under Section 482 of the Criminal Procedure Code for the prayers inter alia that FIR being C.R.No.I130/2012 registered before Rajkot ‘B’ Division Police Station may be quashed and set aside on the grounds stated in the application.
2. Heard learned counsel, Shri K.B. Anandjiwala appearing with learned advocate, Shri Ashish Dagli for the applicants, learned APP Shri H.L. Jani for the respondent no.1State and Shri Rameshbhai Dhanjibhai Adroja, who appears as partyinperson.
3. The facts of the case briefly summarized are regarding the alleged offences in a land transaction with chequered history for other proceedings also. As stated in the FIR, proposed society viz., Shivam Park is formed and the construction has been made on the land in question and the complainant and other members were alloted and sold the land/plots of land. The transaction is made by the applicant no.11original accused no.1, as power of attorney holder of other accused, who are family members, who is said to have executed the sale deed in the name of one Chimanbhai Daberiya in the year 2007 and thereby has committed alleged offences of cheating and breach of trust, for which, the complaint has been filed.
4. Learned counsel, Shri Anandjiwala submitted that the complaint itself is not maintainable and it is based on forged or concocted papers. Learned counsel, Shri Anandjiwala referred to the papers and submitted that the report has been made by ‘B’ Division Police Station. The said report refers to the factual background with the original landowner, Prabhudas, who has sold the land to one Meghjibhai Patel and the said Meghjibhai is said to have transferred the land by writing on the stamp paper of Rs.20/ to members including the present respondent no.2, who is the original complainant in that application/complaint. There is reference to earlier complaint also. Therefore, learned counsel, Shri Anandjiwala submitted that the background is required to be considered and whether the alleged offences or ingredients for the alleged offences are made out or not may be considered. Learned counsel, Shri Anandjiwala also referred to the statement of the deceased, Prabhudas and the public notices and submitted that the present applicants are the only heirs of deceased, Prabhudas and they have been roped in only as heirs though there is no other allegations or averments suggesting their involvement. Therefore, learned counsel, Shri Anandjiwala submitted that such a complaints have been filed only to cause harassment. He submitted that it is mere a dispute with regard to the land which is a dispute of civil nature and such complaint cannot be a weapon of harassment. He has referred to and relied upon the judgment of the High Apex Court in case of Kishan Singh (dead) Through L.rs. Vs. Gurpal Singh & Ors., reported in 2011 (1) GLR 894 and emphasized the observations. Similarly, he referred to and relied upon the judgment of the Hon’ble Apex Court in case of Chandran Ratnaswami Vs. K.C. Palanisamy & Ors., reported in (2013) 6 SCC 740 and pointedly emphasized the observations made in para nos.58 to 61. He also referred to and relied upon the observations quoted from the judgment in case of Inder Mohan Goswami and Another vs. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1, “46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.
5. Learned counsel, Shri Anandjiwala has also referred to and relied upon the factual background and submitted that there is a gross delay in filing such complaint in the year 2012 though admittedly the offence is said to have been taken place in the year 2004, for which, there is no explanation. Learned counsel, Shri Anandjiwala has stated that reliance placed by the respondent no.2 on an agreement to sale dated 06.07.2010 between Prabhudas and the respondent no.2 along with Ranjanben is required to be considered in background of the fact couple with the fact that there is also will, which is said to have been executed by same Prabhudas in favour of the respondent no.2 on 08.07.2010, for which, there is no proceeding. He submitted that no probate has been obtained or there is no proceeding. Similarly, the respondent no.2 though claims to have a registered banakhat, no steps have been taken and, therefore, the present application may be allowed. He submitted that most of the applicantsaccused are senior citizen and, therefore, it is causing harassment. He has also refereed to and relied upon the judgment of the Hon’ble Apex Court in case of Sarabjit Singh Vs. State of Punjab & Ors., reported in (2013) 6 SCC 800 and submitted that as observed, if there is no material to support the allegation of the FIR then, FIR may be quashed. He also submitted that the conduct of the respondent no.2original complainant may also be considered.
6. Learned APP Shri H.L. Jani has submitted that the investigation has not yet started because of the interim relief. He submitted that the averments in the complaint prima facie disclose the offence which require investigation. He has also referred to the order of the Collector in the revenue proceeding and submitted that FIR may not be quashed at the threshold and investigation may be permitted to be made.
7. The respondent no.2, Rameshbhai Dhanjibhai Adroja, is present in the court, who has referred to the papers at length, which he has filed and he has also referred to the background and the history of earlier proceedings. He has tried to refer to another case, for which, he referred to the suicide note and submitted that all attending circumstances may be considered. He submitted that the applicantoriginal accused no.11, Hashmukhbhai Savji and his brother, Ishwarbhai Shavjibhai Nondhavadara are the persons, who have been involved and if the proper investigation is made, everything could be examined and it may also lead to an investigation in case regarding suicide note, for which, A.D. Entry No.124/2010 has been filed. He has tried to submit that with much efforts, the complaint could be registered, however, the authorities have been negligent and have not been taking steps. He has also submitted that complaint may not be quashed.
8. In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.
9. As it appears with reference to the various details and other proceedings referred to by the respondent no.2original complainant, it appears that by present complaint, the complainant is trying to bring other facts and proceedings if other matter, which is not permissible. Therefore what has happened in other proceeding like revenue proceeding or earlier report made by ‘B’ Division Police Station and Malaviyanagar Police Station is one aspect. At the same time, there is a registered banakhat in favour of the respondent no.2 executed by the deceased, Prabhudas, which is placed on record. However, admittedly no further steps have been taken on the basis of this banakhat. Further as rightly submitted, there are two documents in a close proximity like agreement to sale executed by the deceased, Prabhudas in favour of the respondent no.2original complainant and one Ranjanben dated 06.07.2010 and there is also a will of deceased, Prabhudas dated 08.07.2010. Therefore it is a matter of close scrutiny as to how same subject matter ot the land is sought to be dealt with in this manner within two days by will as well as agreement to sale. Apart from anything, focus as per the complainant also is on the power of the attorney holder, the applicant no.11 and his brother. Therefore there are two set of transactions, one by the deceased, Prabhudas himself and another transaction for the same land is by power of attorney holder, the applicant no.11original accused no.11, which requires a further investigation. Again the submissions made by learned counsel, Shri Anandjiwala that FIR does not disclose prima facie ingredients for the offences alleged is also premature as if some investigation is permitted to be made, there could be some light thrown on such averments, on the basis of which, the conclusion can be arrived at. At the same time, the present applicant nos.1 to 9 or 10 are the heirs of the deceased and they have been joined as heirs of the deceased, Prabhudas without any further alleged involvement, which is again could be scrutinized during the course of investigation. Therefore having regard to the observations made by the Hon’ble Apex Court in both judgments refererd to by learned counsel, Shri Anandjiwala that such proceedings cannot be a weapon for harassment is required to be considered in background of the facts. Further it is well settled that while exercising discretion under section 482 of the Criminal Procedure Code, the Court has to be slow and there cannot be any inflexible rule. The Hon’ble Apex Court by catena of judicial pronouncement has laid down guidelines that normally such powers have to be exercised with care and circumspection and there cannot be any inflexible rule for exercise of such jurisdiction. Therefore, it has to be exercised with care and circumspection. However, the Hon’ble Apex Court in a judgment in case of State of Haryana and others v. Bhajan Lal and ors., reported in 1992 Supp (1) 335 has laid down broad guidelines with regard to the exercise of such jurisdiction observing that it is not possible for laying down any exhaustive list where such power could be exercised or not. Therefore it is well accepted that no offence is disclosed, the Court may examine the question of fact and attending circumstances even if the allegations are accepted at the face value.
Similarly it has to be considered with reference to any effort to settle the dispute for applying any kind of pressure. Therefore while considering this broad guideline coupled with the fact that whether the ends of justice would require such quashing or whether permitting such investigation for the purpose of bringing out the material should be permitted or not. Therefore in background of the relevant facts that if the investigation is permitted to be made, it may reveal a few relevant aspects and it may not cause harm to the applicants if the investigation is permitted to be made. On the other hand, if the complaint is quashed at this stage, it would not be desirable and it would also cause prejudice to the claim made by the original complainant.
10. Therefore, having regard to this rival claims, the present application cannot be entertained and deserves to be dismissed. Accordingly, the present application stands dismissed. Rule is discharged. Interim relief stands vacated.
(RAJESH H.SHUKLA, J.) Gautam