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2013 DIGILAW 158 (GUJ)

JITENDRA KANTILAL PATEL v. STATE OF GUJARAT

2013-03-14

C.L.SONI

body2013
JUDGMENT C. L. SONI, J. This Court while issuing notice vide order dated 20-10-2011 granted ad-interim relief staying the investigation of the F.I.R. and the same has been continued till today. The complainant has moved an application being Misc. Criminal Application No. 12289 of 4012 for vacating of the interim relief. Since, the learned Advocates for the parties have requested to hear the petition finally, no order is required to be passed in the application for vacating the interim relief. Therefore, Rule. Learned Advocate Mr. Tulsi R. Savani waives service of rule for the opponent No.2 and learned A.P.P. Ms. Jirga Jhaveri waives service of rule on behalf of the opponent-State. With the consent of the parties, the petition is heard finally. 2. The complainant through his Power of Attorney has filed affidavit-in-reply opposing the petition. 3. This petition is filed under Sec. 482 of the Criminal Procedure Code, 1973 (hereinafter be referred to as 'the Code') with a prayer to quash the F.I.R. being I-C.R. No. 256 of 2010 registered with Kamrej Police Station for the offences punishable under Secs. 406, 420, 467, 468, 471, 504 and 506(2) of the Indian Penal Code and to quash the report dated 30-9-2011 submitted by the Police Inspector, Kamrej Police Station, Surat to the Court of learned Judicial Magistrate, First Class. 3.1. The gist of the F.I.R. is that the complainant opponent No.2 is the owner of the land bearing Block No. 454 of Survey No. 487/1 of Kamrej Village, Surat. The accused No. 3-Rohitkumar Chandanmal Jain claimed to be Power of Attorney Holder of the complainant and executed registered sale-deed in favour of the accused No. 1-Gordhanbhai and accused No. 2-Kiritbhai on 14-6-2010. The complainant has not executed any Power of Attorney in favour of the accused No. 3-Rohitkumar Chandanmal. The complainant has not signed any Power of Attorney and the valuable land of the complainant is sought to be snatched away on the basis of bogus Power of Attorney. 4. It is the case of the petitioner that before above F.I.R. was registered, the complainant has filed private complaint in the Court of learned Chief Judicial Magistrate, Surat on 10-11-2010 on the same allegations, for same offences and against the same accused. 5. 4. It is the case of the petitioner that before above F.I.R. was registered, the complainant has filed private complaint in the Court of learned Chief Judicial Magistrate, Surat on 10-11-2010 on the same allegations, for same offences and against the same accused. 5. The said complaint was sent for investigation to Varachha Police Station by learned Magistrate under Sec. 202 of the Criminal Procedure Code and Police Inspector of Varachha Police Station made a report of investigation, on 6-4-2011. It is the case of the petitioner that the complainant suppressed the material and vital fact of filing of Special Civil Suit No. 219 of 2008 by the original owner Nanubhai Murarbhai of the land against the petitioner, one Khengarbhai Laxmanbhai and others wherein the complainant had moved application for joining as party. During pendency of said proceedings of the suit, the petitioner and said Khengarbhai Laxmanbhai submitted application on 15-12-2010 for passing decree in favour of the original owner and the original owner then executed registered sale-deed in favour of the complainant on 30-5-2008, and thereafter, the accused No. 3-Rohitkumar executed registered sale-deed in favour of the accused Nos. 1 and 2 on the basis of Power of Attorney dated 10-62010. The petitioner has given out further facts that original owner Nanubhai Murarbhai had also executed Power of Attorney to one Girvatsinh Babubhai Rathod, who executed sale-deed in favour of the petitioner and Khengarbhai Laxmanbhai on 22-5-2008 and payment of Rs. 10 Lakhs was made by cheque to the original owner. Thus, the original owner executed two sale-deeds; one was in favour of the petitioner and Khengarbhai Laxmanbhai and another one was in favour of the complainant. The petitioner, therefore, issued legal notice to the complainant on 10-2-2011, to which the complainant replied to the said notice on 6-3-2011 and the petitioner had also sent rejoinder on 12-3-2011. The petitioner has further stated that after submission of the report by Investigating Officer in the private complaint, the police registered the above-referred F.I.R. on 26-9-2011 for the same offences. The petitioner has further stated that after submission of the report by Investigating Officer in the private complaint, the police registered the above-referred F.I.R. on 26-9-2011 for the same offences. The petitioner has alleged that in the said F.I.R. the statement of the complainant was recorded on 30-9-2011 by police and on the basis of such statement, on the same day, the police made report to the Court of learned Judicial Magistrate for adding Sec. 120B of the Indian Penal Code and for adding the petitioner as accused in the F.I.R. Such F.I.R. is nothing but abuse of process of law as the same is not permissible after private complaint was filed on the same allegation and after a report of investigation was made therein. 6. What appears from the record of the petition is that on 10-11-2010, the opponent No.2 complainant filed private complaint which is registered as Misc. Application No. 38 of 2012 for allegations as stated above. In this private complaint, the petitioner is not arraigned as accused. No allegation in the body of this complaint is also found against the petitioner. On this complaint, learned Judicial Magistrate passed order dated 10-112010 for taking complaint on inquiry register, ordering investigation by police under Sec. 202 of the Criminal Procedure Code and to report within 30 days. The police thereupon made investigation and made report on 17/163/4-2011. In the said report, it is stated that the accused No.3 Rohitkumar Chandanmal Jain sent declaration to Varachha Police Station on 29-1-2011 on stamp paper of Rs. 100/- by Registered Post A.D. stating therein that the complainant has not given any Power of Attorney to him for his land nor has he ever seen the complainant at any point of time nor even he personally knew the complainant but on 10-6-2010, Kirtibhai Ramabhai Patel (accused No.2) came to him and stated that he would get unexpected amount for making signature, and therefore, being in need of money, he was lured by such offer and went with Kirtibhai Ramabhai Patel in one office where on the ready writing after affixing his photograph, his signature was taken. As per the said declaration at that time only, Kirtibhai Ramabhai (accused No.2) and Gordhanbhai (accused No.1) were present and the said writing was kept ready with stamp and on asking in respect of such stamp and thumb impression, he was given Rs. As per the said declaration at that time only, Kirtibhai Ramabhai (accused No.2) and Gordhanbhai (accused No.1) were present and the said writing was kept ready with stamp and on asking in respect of such stamp and thumb impression, he was given Rs. 10,000/- and Kirtibhai further stated him that he could be given double amount if he would put more signature, and therefore, he went to the office of Sub-Registrar in the motor car of Kirtibhai where one writing was kept ready and again his photographs were affixed and his signatures were taken and Rs. 20,000/- more was given to him. It is further stated that he was asked to sign on the affidavit which he refused, and therefore, these two persons prepared affidavit and put signatures thereon. 7. Nowhere the accused No.3 referred the name of the petitioner in his declaration nor police in its report involved the petitioner in the matter of forging Power of Attorney. 8. What further appears is tbat on written complaint dated 18-8-2010, the F.I.R. was registered on 26-9-2011. In this F.I.R. also, as stated above, the petitioner is not arraigned as accused nor there is any allegation in the body of the F.I.R. against the petitioner. However, in the said F.I.R. on 30-9-2011, the statement of the complainant came to be recorded by the police. The complainant has, while giving out the facts about the forgery of Power of Attorney, further stated in his statement that he received one registered notice from learned Advocate Mr. Ajay K. Sendani wherein it is stated that he had executed registered Satakhat by receiving Rs. 11 lakhs from the petitioner for the land in question. It is further stated by him in his statement that he has not executed any Satakhat in favour of the petitioner and he has not received any amount as alleged. He further stated that he did not notarize Satakhat before Notary S. G. Kazi nor he knew the person named Hemant D. Pathak who is stated to have identified him. He has also stated that he did not know other two persons whose names are referred to as witnesses in the Satakhat and all these above persons have conspired to prepare bogus Satakhat to snatch away his valuable land. He has also stated that he did not know other two persons whose names are referred to as witnesses in the Satakhat and all these above persons have conspired to prepare bogus Satakhat to snatch away his valuable land. In the statement, he has further stated that the accused No. 2-Kirtibhai Ramabhai Patel, accused No. 1-Gordhanbhai Lavjibhai Bhikadia and the petitioner in collusion with each other prepared bogus Power of Attorney for his land bearing Block No. 454 and got it notarized before Notary - Kantilal T. Vanza. He further stated that the Power of Attorney prepared by Rohitkumar Chandanmal Jain and Satakhat prepared by the petitioner are bogus and the petitioner is kingpin (master mind) behind the conspiracy who attempted to snatch away the valuable land of the complainant. On the basis of such statement, the police has made report for adding Sec. 120B of the Indian Penal Code and also adding the name of the petitioner as accused in F.I.R. This has given cause to the petitioner to invoke the jurisdiction of this Court under Sec. 482 of the Criminal Procedure Code. 9. I have heard learned Advocates for the parties. 10. Learned Advocate Mr. A. D. Shah appearing for the petitioner submitted that the report made by the police is nothing but abuse of process of law. He submitted that in respect of the same allegations, the police had completed investigation pursuant to the order of the learned Magistrate under Sec. 202 of the Code passed on private complaint filed by the complainant and in the report dated 17-3-2011 - 6-4-2011, the petitioner was not at all involved. It is submitted that once investigation in respect of similar offence was completed, it was not open to the police to conduct fresh investigation by taking shelter of the F.I.R. which came to be registered for the same allegations about the forgery of Power of Attorney on 26-9-2011. He submitted that the whole action of the police is mala fide at the instance of the complainant to help out the complainant to settle his score with the petitioner in the civil matter. He submitted that neither in the private complaint nor in the F.I.R., the name of the petitioner is shown as accused. He submitted that the person who executed the sale-deed in favour of the accused Nos. 1 and 2 has involved only accused Nos. He submitted that neither in the private complaint nor in the F.I.R., the name of the petitioner is shown as accused. He submitted that the person who executed the sale-deed in favour of the accused Nos. 1 and 2 has involved only accused Nos. 1 and 2 in the matter of forging of Power of Attorney and not the petitioner. He submitted that even no other witnesses in the investigation by the police pursuant to the order passed by learned Magistrate has involved the petitioner in the matter of forging of Power of Attorney. He thus submitted that action of the police in recording the statement of the complainant in the F.I.R. and in adding the name of the petitioner in the F.I.R., is nothing but overreaching the order of learned Magistrate who thought it fit to order investigation only under Sec. 202 of the Code. He submitted that when learned Magistrate is not empowered to issue order for investigation under Sec. 156(3) of the Code after having opted to order investigation under Sec. 202 of the Code, the police cannot be permitted to investigate the F.I.R. as it would amount to indirectly investigation under Sec. 156(3) of the Code which learned Magistrate otherwise is not competent to do so. He submitted that even otherwise, the F.I.R. for the same offences for which the complainant has resorted to filing the private complaint is not maintainable and cannot be permitted to be investigated by the police. He submitted that there are several litigations pending between the parties and the grievance of the complainant in his statement before the police recorded in connection with the F.I.R. is mainly about forging the Satakhat, and therefore, on the basis of the statement of the complainant, the petitioner could not have been arraigned as accused in the F.I.R. by making report in the F.I.R. He submitted that since the whole action of the police is mala fide and in abuse of process of law, this Court may quash the F.I.R. against the petitioner. In support of his submission, learned Advocate Mr. In support of his submission, learned Advocate Mr. Shah has relied upon the decision of learned Single Judge of this Court in the case of Parshottambhai Karshanbhai Surani v. Chandrikaben Karshanbhai Surani, reported in 2008 (2) GLH 6 : [2008 (4) GLR 3121] and the decision of the Hon'ble Supreme Court in the case of Surender Kaushik v. State of Uttar Pradesh, in Criminal Appeal No. 305 of 2013 dated 14-2-2013. 11. As against the above arguments, learned Senior Advocate Mr. Yatin Oza appearing with learned Advocate Mr. Tulsi R. Savani appearing for the opponent No.2 submitted that there is no prohibition in registering the F.I.R. for the same offences. He submitted that the power of police to investigate the cognizable offence when it is brought to its notice by F.I.R. cannot be taken away simply because in respect of such offences, there is private complaint filed by the complainant. He submitted that from provision of Sec. 210 of the Code, it clearly appears that legislature intended that in respect of cognizable offence, the police should be permitted to thoroughly investigate the F.I.R. and for that very reason, the law mandates the learned Magistrate to stay the proceedings in respect of the same offence. He submitted that in the case on hand, though the complainant had moved the police machinery prior to filing of private complaint but unfortunately the police did not register the F.I.R., and therefore, the complainant had filed complaint mentioning about inaction on the part of the police and in respect of the private complaint, thereafter, the police was ordered to investigate. He submitted that simply because there was order of investigation passed under Sec. 202 of the Code, the complainant could not be made to suffer from getting truth revealed by police investigation in connection with the F.I.R. He submitted that the complainant has stated before the police in his statement in connection with the F.I.R. that the petitioner is the main conspirator behind forging of Power of Attorney as also the Satakhat and the police could reach to the truth only if the investigation in connection with the F.I.R. is permitted. He submitted that once F.I.R. was registered before the police, there is no bar in recording the statement of the complainant and to make investigation on the basis of such statement as the complainant having come to know about the role of the petitioner as main conspirator was justified in involving the petitioner in the offence for which F.I.R. was registered. He submitted that the complainant is sought to be deprived of his valuable land by the petitioner and other accused involved in forging Power of Attorney and the fact that those three accused are not making any grievance in recording of second F.I.R., this Court may permit the police to investigate the F.I.R. against the petitioner to find out the truth about the Power of Attorney and Satakhat executed in connection with the land of the petitioner. He thus urged to dismiss the petition. In support of his arguments, learned Senior Advocate Mr. Oza has relied on the decision of this Court in the case of Radheshyam Khiru Goswami v. Rajubhai Pannalal Rana, reported in 2012 (2) GLR 964 and the decision of Allahabad High Court in the case of Lal Chandra Agrawal v. State of U.P., in Criminal Misc. Writ Petition No. 17082 of 2010 dated 3-12-2010. 12. Learned A.P.P. Ms. Jirga Jhaveri for the State submitted that the F.I.R. is in respect of the cognizable offences and the statement of the complainant is recorded in the said F.I.R. during the course of the investigation. She submitted that because of the interim stay, further investigation could not be carried out. She has made available xerox copy of the statement of the complainant recorded in connection with the F.I.R. for perusal of the Court. 13. Having heard learned Advocates for the parties and having perused the record of the petition, though it appears that the complainant has filed private complaint dated 10-11-2010 whereon, learned Magistrate has passed order for investigation under Sec. 202 of the Code and though for similar offences F.I.R. came to be registered as C.R. No. 1-256 of 2011 with Kamrej Police Station on 26-9-2011, the petitioner is nowhere arraigned as accused. In private complaint, as also F.I.R., the complainant has stated that he has never executed any Power of Attorney in favour of accused No. 3-Rohitkumar Chandanmal Jain and Power of Attorney is forged and bogus and on the basis of such Power of Attorney, bogus sale-deeds, came to be executed in favour of the accused Nos. 1 and 2. In the private complaint as also the F.I.R., the complainant has stated that for forging the Power of Attorney and for executing bogus sale-deeds criminal proceedings be initiated against the accused named in the complaint and F.I.R. as also against the persons whoever found to be involved in the offence of forging the Power of Attorney and sale-deeds in respect of the land of the complainant. 14. It is true that the declaration which was sent to the police by the accused No.3, only the accused Nos. 1 and 2 are named. However, simply because the accused No. 3 had named only two persons, neither the complainant could be deprived of his right to get all culprits and conspirators to book who are responsible for forging the Power of Attorney nor the police could be divested of its power in respect of the cognizable offence as per the F.I.R. to investigate further to find out as to whether more persons are involved in the offence of forging documents in connection with the land of the complainant. 15. Section 210 of the Code provides that in a case instituted otherwise than on a police report when it is made to appear to learned Magistrate, during the course of the inquiry or trial held by him, that investigation by the police is in progress in relation to the offence which is subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting investigation. Therefore, in fact, the power of the police to investigate in relation to the same offence for which the inquiry or trial is pending before the Magistrate is recognized, and in fact, in such cases, the police is first to complete the investigation and to report to the learned Magistrate in order to avoid in anomaly created between investigation by the police and inquiry before the Magistrate. 16. 16. Though, second F.I.R. by the same complainant against the same accused for the same offence on the basis of the similar allegations would not be permitted but the complainant whose private complaint is under investigation by the police by virtue of the order of learned Magistrate under Sec. 202 of the Code has already moved police machinery by lodging the F.I.R. and in such F.I.R. if the investigation reveals about the involvement of other accused, the power of the police cannot be throttled on the ground that the complainant is not entitled to file second F.I.R. 17. In the present case, neither private complaint was against the petitioner nor even the second F.I.R. is against the petitioner, therefore, the petitioner is not entitled to make any grievance about filing of second F.I.R. by the complainant. Even apart from this, it is not the case of filing of two different F.I.Rs. for same allegations and same offences against the same accused. Whenever there are two F.I.Rs. for the same allegations and same offences, the second F.I.R. may not be permitted to be investigated because the power of police in respect of both F.I.R. is equal and for same allegations and same offences the police cannot be permitted to misuse its power in respect of the second F.I.R. in carrying out investigation because such would greatly prejudice the accused. However, when there is a private complaint and the order is passed by the learned Magistrate under Sec. 202 of the Code, the police can exercise its power for investigation in respect of the cognizable offence. Therefore, the contention of learned Advocate Mr. Shah that the second F.I.R. lodged by the complainant is not maintainable, and therefore, the report made by police in F.I.R. is required to be quashed, cannot be accepted. 18. In the case of Radheshyam Khiru Goswami, [ 2012 (2) GLR 964 ] the learned Single Judge of this Court has held that even after the learned Magistrate passed order under Sec. 202 of the Code and if F.I.R. is subsequently filed against the same accused for the very transaction for which the private complaint was filed, subsequent F.I.R. cannot be quashed but police is to be permitted to investigate the second F.I.R. and the learned Magistrate is to stay the inquiry in respect of the private complaint as per Sec. 210 of the Code. The F.I.R. in such case is not required to be quashed. 19. In the case of Lal Chandra Agrawal, (Misc. Cri. W.P. No. 17082 of 2010) the learned Single Judge of Allahabad High Court has similarly ruled as held by this Court in the decision of Radheshyam Khiru Goswami, ( 2012 (2) GLR 964 ). 20. In the facts situation of the present case, the judgment relied on by the learned Advocate Mr. Shah would have no application. In the case of Parshottambhai Karshanbhai Surani, [ 2008 (2) GLH 6 : 2008 (4) GLR 3121] the question was as to whether learned Magistrate after having ordered investigation under Sec. 202 of the Code could have ordered police investigation under Sec. 156(3) of the Code. Such is not the question in the present case. Learned Advocate Mr. Shah, however, submitted that if the learned Magistrate could not have resorted to Sec. 156(3) after having ordered investigation under Sec. 202 of the Code, the police could not investigate F.I.R. lodged by the petitioner because such would amount to overreaching the jurisdiction of the Court of the learned Magistrate, and indirectly doing something which was not even open to the learned Magistrate. Such contention of the learned Advocate Mr. Shah for the petitioner cannot be accepted for the simple reason that such power under Sec. 156(3) is not permissible to be exercised by the learned Magistrate himself, once having passed order under Sec. 202 of the Code in respect of the private complaint filed before him. However, so far as F.I.R. lodged before the police is concerned, there is no question of changing over to investigation under Sec. 156(3) from Sec. 202 of the Code. The police has independently exercised its own power in respect of F.I.R. filed with it for cognizable offence, and therefore, there is no question of either overreaching the power of learned Magistrate or indirectly exercising the power of investigation which learned Magistrate was not competent to direct once having ordered investigation under Sec. 202 of the Code. Therefore, there is no merit in the contention made by learned Advocate Mr. Shah. Equally, in the case of Surender Kaushik, (Cri. A. No. 305 of 2013 dated 14-2-2013) relied on by learned Advocate Mr. Shah, the question raised was not same one which is involved in the present case. There the question was as to whether two F.I.Rs. Therefore, there is no merit in the contention made by learned Advocate Mr. Shah. Equally, in the case of Surender Kaushik, (Cri. A. No. 305 of 2013 dated 14-2-2013) relied on by learned Advocate Mr. Shah, the question raised was not same one which is involved in the present case. There the question was as to whether two F.I.Rs. of the same offences could be permitted or not. The Hon'ble Supreme Court in that case has held that second F.I.R. could not be said to be on the same cause of action, and the same incident and on sameness of occurrence and an attempt has been made to improvise the case was not correct. The Hon'ble Supreme Court concluded and held that the F.I.R. which was lodged by fourth respondent therein was second F.I.R. and required to be quashed, did not merit acceptance. The said case is of no. help to the petitioner. 21. From the record, it appears that till the police made report dated 30-9-2011, for adding Sec. 120B of the Indian Penal Code and for adding the name of the petitioner in the F.I.R., the petitioner had no cause to seek quashment of the F.I.R. It is for the first time that the petitioner is sought to be involved in the offence of forgery in connection with Satakhat and the Power of Attorney. The complainant has alleged that in fact, it is the petitioner who is kingpin and main conspirator and he has stated in his statement that he came to know that the Satakhat in his name was prepared and the accused Nos. 1 and 2 and the petitioner are all involved together in forging Satakhat and Power of Attorney. Such allegations against the petitioner are to be taken on their face-value. It is not open to this Court to quash the report made against the petitioner simply because there is a second F.I.R. filed for the same offence and simply because the petitioner is now sought to be involved by the complainant by his statement after investigation was completed by the police in respect of the private complaint. Whether the allegations made by the complainant against the petitioner are correct or not is a matter of investigation. Whether the allegations made by the complainant against the petitioner are correct or not is a matter of investigation. This Court while exercising power under Sec. 482 of the Code cannot dwell into inquiry by referring to the documents on record to find out as to whether there is a substance in the allegation in the complaint. Such is a job of the police and it is not open to intervene the police investigation. 22. For the reasons recorded above, this Court is not inclined to exercise its inherent powers for the prayers made in the petition. The petition is, therefore, required to be dismissed. Hence, the same is dismissed. Rule is discharged. Interim relief, if any, stands vacated. 23. Since, the petition is dismissed, no order is required to be passed in the application for vacating the stay. Hence, the application for vacating interim the stay stands disposed of. After the judgment is pronounced, learned Advocate Mr. A. D. Shah for the petitioner requests to suspend the order of vacating the interim relief and to continue the same for a further period of four weeks. Considering the fact that the interim relief is in operation till today, the same could be continued for the petitioner for a further period of three weeks to enable the petitioner to approach the higher forum. Hence, the order of vacating the interim relief is suspended for a further period of three weeks. Consequently the interim relief, which is in operation, shall remain in operation for a further period of three weeks from today for the petitioner only. (NRP) Petition dismissed.