1.0] As common question of law and facts arise in this group of applications and as such they arise out of the same complaint, all these applications are decided and disposed of by this common judgment and order. [1.1] Criminal Miscellaneous Application No.3092/2006 has been preferred by the applicant herein – original accused No.2 under Section 482 of the CrPC to quash and set aside the impugned FIR being C.R. No.I17/2006 lodged with Katargam Police Station, Surat City lodged by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 467, 468, 120B of the IPC.
[1.2] Criminal Miscellaneous Application No.3093/2006 has been preferred by the applicant herein – original accused No.3 under Section 482 of the CrPC to quash and set aside the impugned FIR being C.R. No.I17/2006 lodged with Katargam Police Station, Surat City lodged by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 467, 468, 120B of the IPC.
[1.3] Criminal Miscellaneous Application No.3917/2006 has been preferred by the applicant herein – original accused No.4 under Section 482 of the CrPC to quash and set aside the impugned FIR being C.R. No.I17/2006 lodged with Katargam Police Station, Surat City lodged by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 467, 468, 120B of the IPC.
[1.4] Criminal Miscellaneous Application No.3921/2006 has been preferred by the applicant herein – original accused No.1 under Section 482 of the CrPC to quash and set aside the impugned FIR being C.R. No.I17/2006 lodged with Katargam Police Station, Surat City lodged by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 467, 468, 120B of the IPC.
[2.0] That respondent No.2 herein – original complainant has lodged the impugned FIR being C.R. No.I17/2006 before the Katargam Police Station, Surat City against the applicants herein and others for the offences punishable under Sections 467, 468 and 120B of the IPC alleging interalia that the accused persons hatched conspiracy and in connivance with each other and with a view to grab the lands in question, prepared a forged power of attorney dated 14.02.2004 alleged to have executed by the complainant by forging the signatures of the complainant and others and thereafter original accused No.1 executed the sale deed in favour of co accused. It is further alleged in the said FIR that even one agreement to sell dated 22.11.2003 was created and concocted and forged on the basis of which one civil suit was filed and the consent decree was obtained by joining original accused No.1 only as a defendant. It is further alleged in the said FIR that applicant of Criminal Miscellaneous Application No.3092/2006 – original accused No.2 is also a party to the conspiracy who is a very headstrong person and who is giving threats to the complainant and has also illegally entered into and/or trespass the land with headstrong 25 to 30 persons for which number of times, complaints were filed but no action has been taken by the police. It is further alleged in the said FIR that earlier the complainant had filed the private complaint in the Court of learned Judicial Magistrate, First Class, Surat being Criminal Inquiry Case No.93/2004 in which the learned Magistrate has passed an order for inquiry under Section 202 of the CrPC. However, there is no further progress. That being aggrieved and dissatisfied with the impugned order, the applicants herein – original accused Nos.1 to 4 have preferred the present Criminal Miscellaneous Applications under Section 482 of the CrPC.
[3.0] Shri Mihir Thakor, learned Senior Advocate has appeared on behalf of the applicants of Criminal Miscellaneous Application Nos.3092/2006 and 3093/2006 and Shri Hriday Buch, learned advocate has appeared on behalf of the applicants of Criminal Miscellaneous Application Nos.3917/2006 and 3921/2006.
[3.1] Shri Mihir Thakor, learned Senior Advocate appearing on behalf of the applicant of Criminal Miscellaneous Application No.3092/2006 – original accused No.2 has vehemently submitted that as such the said applicant – original accused No.2 has not committed any offence as alleged. It is submitted that as such the said applicant is not a party to any of the transactions executed by original accused No.1 in favour of other accused persons, executed on the basis of the alleged power of attorney dated 14.02.2004. It is further submitted that even the said applicant – original accused No.2 is not a party to the Civil Suit in which the consent decree was obtained by coaccused on the basis of the forged documents – agreement to sell etc. It is further submitted that even when earlier complaint was filed by the complainant, no allegations were made against the applicant – original accused No.2 and therefore, it is submitted that the impugned FIR against the applicant is nothing but abuse of process of law and Court as the same is filed with malafide intention.
[3.2] Shri Thakor, learned counsel appearing on behalf of the respective applicants of Criminal Miscellaneous Application Nos.3092/2006 and 3093/2006 and Shri Buch, learned advocate appearing on behalf of the applicants of Criminal Miscellaneous Application Nos.3917/2006 and 3921/2006 have submitted that even otherwise the dispute involved is purely of a civil nature which is tried to be converted into criminal dispute by the impugned FIR which is nothing but abuse of process of law and Court. It is further submitted that as such a civil suit is already filed by the complainant being Special Suit No.59/2005 and in the said suit the injunction application Exh.5 was submitted, which has been rejected by the learned Principal Senior Civil Judge, Surat.
[3.3] It is further submitted that the impugned FIR has been lodged as a counter blast against the proceedings initiated by original accused No.1 Hetalben before various authorities seeking her right in respect of the land in question.
[3.4] It is further submitted that even there is a delay in filing the complaint which is not properly explained and therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others v. State of Bihar and Others reported in (2009) 8 SCC 751, it is requested to allow the present applications and quash and set aside the impugned FIR. No other submissions have been made.
[4.0] All these applications are opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor and learned advocate appearing on behalf of respondent No.2 – original complainant. Shri Dabhi, learned APP appearing for State has submitted that as such the averments and allegations in the FIR discloses prima facie commission of cognizable offences which are further required to be investigated by the Investigating Officer. It is submitted that the impugned FIR has been lodged in the month of January 2006 and immediately thereafter before any further investigation could be made, the applicants have preferred the present applications and since then there is a stay of further investigation. It is submitted that there are specific averments and allegations in the FIR with respect to creating and forging the power of attorney dated 14.02.2004 as well as banakhat dated 21.06.2003 and it is specifically alleged that original accused No.1 and other coaccused persons have entered into conspiracy to grab the land and forged the signature of the complainant and other persons on the power of attorney on the basis of which original accused No.1 executed a sale deed in favour of coaccused. It is submitted that therefore, whether the banakhat dated 21.06.2003 on the basis of which a consent decree was obtained and the sale deed was executed in favour of original accused No.3 Karsanbhai and/or whether the power of attorney dated 14.02.2004 bears the signature of the complainant and other persons or not are all questions which are required to be investigated by the IO during the course of investigation. It is submitted that even for the aforesaid, the documents are required to be send to the handwriting expert after collecting natural signature of the persons who are alleged to have signed the said power of attorney and after recovering the original power of attorney, the same are required to be send to the handwriting expert. So far as the applicant of Criminal Miscellaneous Application No.3092/2006 is concerned, it is submitted by Shri Dabhi, learned APP that there are specific averments and allegations against him also and the allegations are of criminal conspiracy and for the offence under Section 120B of the IPC also. Therefore, it is submitted that unless and until after the investigation, the facts are clear, the FIR is not required to be quashed and set aside. It is submitted that allegations with respect to criminal conspiracy can be considered only after the investigation is concluded. Relying upon the decisions of the Hon'ble Supreme Court in the case of Dharmatma Singh v. Harminder Singh & Ors. reported in (2011)6 SCC 102 (Para 22), it is requested not to exercise powers under Section 482 of the CrPC and not to quash and set aside the impugned FIR at the threshold and without any further investigation.
[5.0] Heard the learned advocates appearing for respective parties at length and considered the averments and allegations made against respective applicants – original accused Nos.2 to 4 and original accused No.1 in the impugned FIR. The impugned FIR has been lodged alleging interalia that a forged power of attorney has been got prepared with forged signature of the complainant and others and on the basis of the said power of attorney the accused persons have entered into criminal conspiracy to grab the land and thereafter the sale deed is executed in favour of co accused. It is further alleged in the said FIR that even one banakhat dated 21.06.2003 was got prepared and concocted on the basis of which a civil suit was filed and a consent decree was obtained and the sale deed was got executed in favour of original accused No.3. It is to be noted that before any further investigation could be made, immediately thereafter the applicants have preferred the present applications in the month of April/May, 2006 and since then there is a stay of further investigation with respect to the allegations made in the impugned FIR. Therefore, it appears that there is a little progress in the investigation. Whether on the power of attorney which is alleged to have been forged one, it bears the signature of the complainant and other persons or not and/or the same was executed before the Notary or not, are all questions which are required to be investigated by the IO. Even after recovering the original copy of the power of attorney dated 14.02.2004, which is alleged to have been forged one and after collecting natural signatures of the persons who have alleged to have signed the power of attorney, the same are required to be send to the handwriting expert and the same can be done only during the course of investigation by the IO. Even the allegations made in the FIR that the banakhat dated 21.06.2003 on the basis of which earlier a consent decree was obtained with respect to the some parcel of land was concocted or not, is also a question which is required to be investigated by the IO.
[5.1] The impugned FIR is sought to be quashed and set aside mainly on the ground that the dispute is purely of civil nature for which a civil suit is already pending between the parties and even the power of attorney dated 14.02.2004 is subject to scrutiny by the Civil Court in the pending civil suit and therefore, it is sought to be contended that as the dispute is of a civil nature, which is tried to be converted into criminal dispute by way of impugned FIR, it is requested to quash and set aside the impugned FIR. The aforesaid cannot be accepted and that too without any further investigation by the IO. As held by the Hon'ble Supreme Court in the case of Kamaladevi Agarwal v. State of W.B. & Ors. reported in (2002)1 SCC 555 as well as in the case of Vitoori Pradeep Kumar v. Kaisula Dharmaiah & Ors. reported in (2002)5 SCC 581 and other subsequent catena of decisions of the Hon'ble Supreme Court and also the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Ors. v. State of Bihar and Anr. reported in 2010 (1) GLH 184, even if the dispute seems to be of a civil nature it may involve the criminal dispute also and therefore, mere initiation of civil proceedings is no ground to quash and set aside the criminal proceedings. It is held by the Hon'ble Supreme Court in catena of decisions that both are different proceedings and both are simultaneously permissible. Under the circumstances, merely because civil suit is pending between the parties, is no ground to quash and set aside impugned FIR in which there are specific averments and allegations with respect to forging the power of attorney after forging the signature of complainant and other persons who have alleged to have executed the power of attorney.
[5.2] Now, so far as the case of applicant of Criminal Miscellaneous Application No.3092/2006 – original accused No.2 that he is not a party to any of the transaction and/or there is no sale deed in his favour on the basis of the alleged power of attorney dated 14.02.2004 and/or the banakhat dated 21.06.2003 and therefore, to quash and set aside the impugned FIR is concerned, it is required to be noted that as such there are specific averments and allegations against the said applicant also that he is also a party to the criminal conspiracy to grab the land. It is also alleged that the said accused is a land grabber and bootlegger and illegally trespassed and entered into the land of the complainant with 25 to 30 goons for which the complaints were also filed with the police. However, no further action was taken by the concerned police officers. Therefore, when there are specific allegations with respect to criminal conspiracy and the offence is also alleged for the offence punishable under Section 120B of the IPC, unless and until the IO is permitted to investigate the complaint and the averments and allegations in the FIR and unless and until the facts are clear, the impugned FIR is not required to be quashed and set aside by this Court in exercise of powers under Section 482 of the CrPC at the threshold and without permitting the IO to investigate the case.
[5.3] Now, so far as the contention on behalf of the applicants that there is a delay in filing the FIR is concerned, it is required to be noted that earlier the complainant had infact filed a complaint/complaints in the year 2004 itself. However, thereafter, nothing was done and that thereafter the impugned FIR has been lodged. Under the circumstances, as such on facts, it cannot be said that there is a delay which warrants quashing of the impugned FIR in exercise of powers under Section 482 of the CrPC.
[6.0] In view of the above and for the reasons stated above, more particularly, when the investigation is yet to be carried out with respect to forged power of attorney dated 14.02.2004 as well as concocting or creating banakhat dated 21.06.2003 on the basis of which with respect to some of lands a civil suit was filed and consent decree was obtained, this Court is of the opinion that this is not a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR at the threshold and without any further investigation by the IO. After the investigation is concluded, the IO will submit appropriate report/chargesheet before the concerned Magistrate, which is required to be considered by the learned Magistrate in accordance with law and on merits. However, when the impugned FIR discloses prima facie commission of cognizable offences which are required to be further investigated, no case is made out to exercise powers under Section 482 of the CrPC.
[7.0] In view of the above and for the reasons stated above, all the Criminal Miscellaneous Applications fail and same deserve to be dismissed and are, accordingly, dismissed. Rule discharged in all the Criminal Miscellaneous Applications. Adinterim relief granted earlier, if any, stand vacated forthwith in all the applications.
(M.R. Shah, J.) menon