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2014 DIGILAW 167 (GUJ)

Babubhai Govindbhai Panara v. State of Gujarat

2014-02-04

RAVI R.TRIPATHI

body2014
Judgment Ravi R. Tripathi, J.—All misdeeds of public servants tolerated in this court have given rise to a situation which has become intolerable. The present is one such case. The applicant was Sarpanch at the relevant time when an F.I.R. bearing C.R. No. I-49 of 2009 was registered at Velavadar (Bhal) Police Station, District Bhavnagar for offences punishable under Section 379 read with 114 of the IPC. In this regard it will be appropriate to refer to the averments made in Para 5 of the petition, which read as under: “5. The applicant states that it is alleged in the F.I.R. against the present applicant that one Himmatbhai Bahadurbhai Bamrolia has committed theft of Babul (Baval) trees of 3150 maunds (1 maund = 20 KG) amounting to Rs. 2,83,500/- which were on Rajgadh Gram Panchayat land and belonged to the gram panchayat and made coal out of the said trees and disposed of the coal in market and thereby he has committed theft. It is alleged in the said F.I.R. that though the present applicant was aware he did not file any complaint against the said Himmatbhai. It is also alleged in the F.I.R. that by not filing complaint, the present applicant caused a loss of Rs. 2,83,500/- to gram panchayat.” The learned advocate for the applicant opened the matter in a very light tone by saying that Sir, for cutting a tree by somebody it is alleged against Sarpanch that he has committed theft and therefore, complaint is filed under Section 379 of the IPC which is required to be quashed by this Court. It is possible for the learned advocate representing the applicant to view the conduct of a public servant-Sarpanch in such light manner, but when it comes to the Court, the Court has to take care of the situation by appreciating as to whether Sarpanch is at all guilty and whether he should be given a clean chit right at threshold by quashing the complaint filed against him. 2. The learned advocate for the applicant then submitted that there is already Show Cause Notice issued to the applicant by the District Development Officer, Office of the District Panchayat, Bhavnagar, on 04.02.2009, a copy of which is produced at Annexure ‘C’ and it pertains to the same very subject matter, viz. cutting of trees, of which estimated value is Rs. 2,83,500/-. cutting of trees, of which estimated value is Rs. 2,83,500/-. It is specifically mentioned in Para 2 of that notice that illegally cutting trees is undertaken by Shri Himmatbhai Bahadurbhai and there is wilful negligence and carelessness on the part of the applicant and thus, it is a case of financial irregularity which resulted into loss of Rs. 2,83,500/- to the Gram Panchayat. It is settled position of law that two simultaneous proceedings can be taken for the same act and that is why because Show Cause Notice is issued by the District Panchayat to the applicant it is not a case of quashing of F.I.R. on that ground. 3. The learned advocate for the applicant then invited attention of the Court to the reply given by the applicant to the Show Cause Notice. The learned advocate for the applicant invited attention of the Court to the contents of Para 6 of that reply dated 24.02.2009 to the notice. The applicant has denied the allegations made against him and then has stated that, “True facts are such that Himmatbhai Bahadurbhai has cut Baval trees which were standing in the river bed of ‘Vansiadi’. It is further stated that the river bed of ‘Vansiadi’ is not forming part of ‘Gamtal’ of Village Rajgadh (village of the applicant). It is also stated that river bed of ‘Vansiadi’ is situated on the western side of the village. It admeasures 30 meters in width and 180 meters in length, admeasuring approximately 1 hectare. This river bed is situated in the limits of village Patna and Village Patna is situated within Vallabhipur Taluka and that this information is given by said Himmatbhai Bahadurbhai in his reply and that in his reply he has referred to penalty imposed by the Forest Department; that the land from where Baval trees are cut is not forming part of either ‘Gamtal or ‘Simtal’ of Village Rajgadh. That is why the applicant has not asked Himmatbhai Bahadurbhai to cut Baval and that we have not passed any resolution in the meeting of Gram Panchayat and therefore, the matter does not fall within my jurisdiction, therefore, I have not taken any action.” What is important is that the applicant then proceeded to say that, “Despite this, I did ask Himmatbhai Bahadurbhai not to cut Baval, but he informed me that Patnavala has asked him to cut Baval and I have also informed them to file a criminal case. Then he (Himmatbhai Bahadurbhai) informed that the Forest Department has filed case against me. Therefore, I (applicant) consulted legal experts and he came to know that as the land in question is not within our limits and the Forest Department has already filed case, second complaint cannot be filed. .. ...” This shows the guilty mind of the applicant. The applicant is in know of the facts (i) that Baval trees are being cut, (ii) that cutting of Baval trees is an offence, (iii) that the land is situated in village limits of Village Patna, and (iv) that the Forest Department has already filed case against the person concerned. Taking all this into consideration this Court is of the opinion that this is not a case wherein F.I.R. is required to be quashed. The learned advocate for the applicant at this juncture very emphatically submitted that this Court at the time of admitting this matter has made certain observations and those observations are in Para 2 of order dated 23.09.2009. Therefore, this matter is required to be considered favourably and the F.I.R. is required to be quashed. Para 2 of the said order read as under: “Considering the nature of allegations made against the applicant in the first information report, even if the same are taken to be true in their entirety, prima facie no offence can be said to be made out against the applicant, hence, Rule.” 4. It is settled law that any observations made by the Court at the time of admitting the matter are always in the nature of prima facie observations and in this particular case, the learned Judge has already made it clear that “. . . . . . . . . . prima facie no offence can be said to be made out against the applicant,. . . . . . . . . . . . . . . . prima facie no offence can be said to be made out against the applicant,. . . . . . . .”. In that view of the matter reference and reliance placed by the learned advocate for the applicant on those observations is thoroughly misplaced and is required to be rejected. The same are accordingly rejected. It is settled law that when the matter is heard finally the learned advocate for the applicant must make out a case on merits and should not make reference to the observations made by the learned Judge at the time of admission of the matter, more particularly, should not make those observations the basis for allowing the petition. 5. In the result this Court is of the opinion that the petition is thoroughly misconceived and is required to be dismissed with cost. 6. At this juncture, learned advocate for the applicant requested that now that the applicant is not getting any relief, at least cost may not be imposed. The request is granted. The petition is dismissed without any cost. RULE is discharged. Interim relief is vacated.