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2016 DIGILAW 692 (GUJ)

Ramanbhai A. Solanki v. State of Gujarat

2016-03-30

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Heard Mr. Ashish Dagli, learned counsel for the applicants and Mr. Dabhi, learned APP, for respondent No. 1. Though served no one appears for respondent No. 2. 2. By way of this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants have prayed for quashing and setting aside the complaint filed by respondent No. 2 before the learned Judicial Magistrate First Class, Harij, in Criminal Case No. 554 of 2008 and also the subsequent order dated 18.12.2008. 3. The following facts as can be culled out from the application are noteworthy- 3.1 The present complaint is filed by respondent No. 2 who happens to be a press reporter at Harij and as the facts reveal, is closely associated to one Dineshkumar Gaurishankar Thaker. 3.2 The record indicates that a civil dispute was there between the Gujarat State Road Transport Corporation with Dineshkumar Gaurishankar Thaker in relation to land bearing Survey No. 285 situated at Harij. It appears from the record of the complaint that the said land was in the name of family members of said Dineshkumar Gaurishankar Thaker. The said lands came to be acquired by the State Government under the provisions of the Land Acquisition Act for the purpose of ST Corporation. As averred in the application, it appears that one Narmadashankar Thaker filed Regular Civil Suit No. 66 of 1973 before the Court of learned Civil Judge (JD), Harij, contending that the land which is acquired does not cover the hut and the hedge and also claimed possession of the said portion of the land. The record indicates that the suit was partly allowed by the learned Civil Judge (JD), Harij. Being aggrieved by the said, Narmadashankar filed appeal before the District Court, Mehsana, which was allowed in favour of the said plaintiff. As pointed out from the record of this application, ST Corporation preferred Second Appeal before this Court being Second Appeal No. 55 of 1981 and the said Second Appeal was allowed by judgment and order dated 08.03.1999 and dismissed the suit and it was held that the ST Corporation/State Government to take possession of the land and superstructure. It is the case of the applicants that the said judgment has become final, except the fact that a review application being Misc. It is the case of the applicants that the said judgment has become final, except the fact that a review application being Misc. Civil Application No. 846 of 1999 in Second Appeal No. 55 of 1981 was filed but no orders have been passed along with the application being Civil Application No. 10431/01 for stay and maintenance of status quo. However, no orders are passed. 3.3 It appears that thereafter, the very plaintiff filed another suit being Regular Civil Suit No. 22 of 2002. However, on the objections raised by ST Corporation, the suit came to be dismissed vide judgment and order dated 31.03.2003 raising a preliminary objection on applicability of principles of res judicata. It further appears that the said order was challenged by the original plaintiff by way of filing appeal being Regular Civil Appeal No. 4 of 2003. As averred in the application, the name of the original plaintiff came to be entered in the revenue record as well as municipal record and therefore, the original plaintiff-appellant filed a purshis for withdrawal of the said appeal and the appeal was permitted to be withdrawn by order dated 01.09.2005. Suffice it to state that thereafter, the representation was filed by the ST Corporation to revenue authorities including District Collector, Patan, as well as the City Survey Superintendent and prayers were made to take appropriate action against the persons who have encroached upon the land in question, which was subject matter of the judgment & order rendered by this Court in Second Appeal No. 55 of 1981. At this stage, the private complaint came to be filed by respondent No. 2 for the alleged offences under sections 323, 500, 504, 506(2) and 114 of the Indian Penal Code. 4. Mr. Dagli, learned counsel appearing for the applicants submitted that the present complaint is not only frivolous, but is filed with an attempt to pressurize and anyhow harass the applicants. Mr. Dagli further contended that in fact, Dineshkumar Gaurishankar Thaker also filed a similar complaint which was registered as Criminal Case No. 555 of 2008 before the Court of learned Judicial Magistrate First Class, Harij. Mr. Dagli submitted that the present applicants are employees of the State Transport Corporation. Mr. Dagli further submitted that the said complaint being Criminal Case No. 555 of 2008 was challenged by the accused, present applicants by way of filing Criminal Misc. Mr. Dagli submitted that the present applicants are employees of the State Transport Corporation. Mr. Dagli further submitted that the said complaint being Criminal Case No. 555 of 2008 was challenged by the accused, present applicants by way of filing Criminal Misc. Application No. 7794 of 2009, which came to be allowed and the complaint is quashed by an order dated 01.08.2013 passed by this Court (Coram: K.M. Thaker, J.). Mr. Dagli further submitted that on identical allegations except one of the allegations which relates to allegation as alleged to be an offence under section 500, the present complaint is filed, though by a reporter, as a near and dear friend of Dineshkumar Gaurishankar Thaker, only with a view to wreak vengeance and the same is nothing but an abuse of process of law. Mr. Dagli, learned counsel pointed out that in fact by an order dated 11.02.2010, the present application came to be admitted and was also ordered to be heard with Criminal Misc. Application No. 7794/09. However, the same was de-tagged and as identical allegations are made in the present complaint which deserves to be quashed on the same and similar grounds. 5. As the respondent No. 2 though served has not appeared, this Court has heard Mr. Dabhi, learned APP in this matter. 6. On perusal of the record of this application, it clearly establishes the fact that the land belonging to the family of Dineshkumar Gaurishankar Thaker came to be acquired for the public purpose of ST Corporation and the same was disputed by Dineshkumar Gaurishankar Thaker, where this Court (Coram: S.K. Keshote, J.) was pleased to allow the Second Appeal No. 55 of 1981 vide judgment dated 08.03.1999 wherein all the substantial questions as regards the right of the ST Corporation has been answered in favour of the ST Corporation. 7. Mr. Dabhi, learned APP has not been able to point out that the present complaint discloses any other factor. 8. The contention therefore raised by the learned counsel for the applicants deserves to be accepted. It would be appropriate to refer to the observations made by this Court in Criminal Misc. Application No. 7794 of 2009- "9.1 The entire dispute is in connection with a parcel of land bearing Survey No. 285 of village: Harij. 8. The contention therefore raised by the learned counsel for the applicants deserves to be accepted. It would be appropriate to refer to the observations made by this Court in Criminal Misc. Application No. 7794 of 2009- "9.1 The entire dispute is in connection with a parcel of land bearing Survey No. 285 of village: Harij. 9.2 The respondent complainant claims that the said land is allotted to the complainant by the Government and that therefore, he is the grantee and lawful occupier of the land (property) in question. 9.3 Per contra, the Corporation claims otherwise and contends that the land in question is of the Corporation's ownership and Revenue Authorities as well as learned Civil Court have passed orders to the said effect. 9.4 At the outset, learned counsel for the petitioners referred to the orders passed by the Revenue Authorities and learned Civil Court and submitted that before taking action, the Corporation had served notice dated 3.5.2008 (Annexure-J, Page-79) and another notice dated 15.5.2008 (Annexure-K, Page-82) to the complainant, because the respondent complainant has encroached on the Corporation's land and was unauthorizedly making construction on the said property. 9.5 Learned counsel for the petitioners also contended that the Corporation had, vide said notices, asked the respondent complainant to refrain from continuing the illegal and unauthorized construction, however, since the respondent complainant did not accede to the said requests and notices, the Corporation had to make request to the police authorities to provide protection and with police protection, the Corporation's officers were constrained to take action, at the relevant time. He submitted that the petitioners were performing their official duties and they acted in discharge of their duties as per the orders and directions of the Corporation. He also submitted that only to pre-empt any action by the Corporation, including action of contempt of Courts and to bring pressure, the respondent complainant filed the impugned complaint. 9.6 When the above mentioned aspects are taken into account, it emerges that the dispute is purely of civil nature and has been going on between the Corporation and the respondent complainant since long time. 9.6 When the above mentioned aspects are taken into account, it emerges that the dispute is purely of civil nature and has been going on between the Corporation and the respondent complainant since long time. 9.7 Even if the interlocutory order passed in Civil Suit No. 28 of 2008 on the strength of which the respondent complainant has made various allegations and filed the complaint is taken into account, then also the fact remains that if the breach of the said order was actually committed by the petitioners, then, appropriate remedy was available before the learned Court who passed the said order and the respondent complainant could have taken out proceedings for breach of interlocutory order, if any, of Court's order. 9.8 Instead, the respondent complainant filed the impugned complaint which, gives an impression that the proceedings have been initiated so as to pressurize the Corporation/its officers and to continue to hold possession of the land (property) in question. 10. This is so particularly in light of below mentioned aspects:- [a] according to the Corporation, the land in question was acquired by Government for the corporation and was allotted to it and is of its ownership; [b] in support of the submission Corporation/officers relied on the order/s by Revenue Authority and learned Civil Court; [c] the complainant claims that the land is allotted to him by Government; [d] the Corporation/officers contend that the respondent complainant has illegally encroached on the land in question and now he is putting-up illegal and unauthorized construction; [e] the Corporation had issued notices before taking action; [f] proceedings are pending before revenue authority; [g] the complainant started some construction on the land in question; [h] against the said encroachment, corporation issued notices to stop/demolish the construction; [i] despite the said notices, the complainant did not stop/demolish the construction, hence corporation requested police protection for stopping/demolishing construction. 11. Furthermore, so far as Civil Suit No. 28 of 2008 (i.e. the suit wherein the said interim order relied on by the complainant was passed) is concerned, learned advocate for the petitioners submitted that vide order dated 29.7.2010, even the said suit has been disposed of/dismissed by the learned Civil Court. 11.1 In the impugned complaint, the respondent complainant has made reference to the said Civil Suit No. 28 of 2008 and he has alleged that an interlocutory order was passed on 17.12.2008. 11.1 In the impugned complaint, the respondent complainant has made reference to the said Civil Suit No. 28 of 2008 and he has alleged that an interlocutory order was passed on 17.12.2008. Thereafter the respondent has further alleged that around 1.30 p.m., he had reached the office of Depot Manager and tried to serve the said order to the Depot Manager. It is alleged that Depot Manager refused to accept the service of the said order of the Court. The respondent complainant has also alleged that at 1.30 p.m., the employees of the respondent corporation had started demolition of the under construction premises with the help of GCB machine and that, therefore, he filed the complaint. 11.2 Learned advocate for the petitioners has claimed that delay of 5 days between the date of alleged incident and the date on which the complaint came to be filed, is not explained by the petitioners and the said delay establishes the fact that the respondent complainant filed the said complaint only as an afterthought and to pressurise the officers of the petitioners. 11.3 Learned advocate for the petitioners has relied on the judgment and order dated 8.3.1999 passed by this Court in Second Appeal No. 55 of 1981. The said second appeal was filed by the State Road Transport Corporation against the judgment and decree dated 9.7.1980 in Regular Civil Appeal No. 2 of 1978 whereby the judgment dated 24.11.1997 in Regular Civil Suit No. 66 of 1973 was reversed. 11.4 Learned advocate for the respondent referred to an order dated 11.3.2003 (Annexure-G, page 72) and submitted that by virtue of the said order, the land was assigned/ allotted to him by the Government. As against the said submission, learned advocate for the petitioners Mr. Dagli submitted that the said order is under challenge and the proceedings are pending before the revenue authority by way of revision application. 12. The entire material on record go to show that the dispute with regard to title, possession and ownership of the land is going on between the parties since long time and both the parties have taken out and passed through rounds of litigations before the Revenue Authorities and learned Civil Court. 12. The entire material on record go to show that the dispute with regard to title, possession and ownership of the land is going on between the parties since long time and both the parties have taken out and passed through rounds of litigations before the Revenue Authorities and learned Civil Court. 12.1 When all aspects are taken into account, on over all view of the case, it appears that the respondent complainant has tried to give colour of criminal offence to a dispute which is purely of civil nature and has been going on between the parties since long time. 12.2 Even the interlocutory order on the strength of which the respondent complainant filed the impugned complaint was also passed in the civil suit, i.e. Civil Suit No. 38 of 2008 and then instead of making application alleging breach of order. It appears to the Court that the respondent filed the impugned complaint only to pressurise the officers of the corporation with a view to continuing/holding possession of the property in question. 12.3 The concerned employees/officers of the corporation, i.e. the petitioners have claimed and insisted asserted that they were acting in course of discharge of their duties and as per the orders of the corporation and that, therefore, the allegations made by the respondent do not appear to be justified. 12.4 In this background and on overall consideration of all facts and circumstances of the case and having regard to the different litigation which has already been undergone by the parties and some of which are presently pending, it is demonstrated before this Court that the impugned complaint by the petitioner amounts to abuse of process of law and dispute which is of civil nature is sought to be given colour of criminal offence with a view to frustrating or delaying the Corporation's process of restraining the complainant from carrying out and completing construction work and encroaching on the land in question and with a view to continuing to hold possession of the property the land in question and the ingredients of alleged offence are not made out against the petitioners and the complainant has attempted to give colour of criminal offence to the dispute of civil nature. Having regard to the aforesaid aspects, the Court is of the view that the impugned complaint amounts to abuse of process of law and that, therefore, the impugned complaint deserves to be quashed. Therefore, below mentioned order is passed." 9. In the facts and circumstances of this case also and also considering the following principles laid down by the Apex Court in the case of State of Hariyana & Ors. vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604 , the impugned complaint is nothing but an abuse of process of law. "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and take out a case against the accused. 4. Where, the allegations in the FIR do constitute a cognizable offence but constitute only a non--cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. 4. Where, the allegations in the FIR do constitute a cognizable offence but constitute only a non--cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that in there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where; the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. In light of the aforesaid and considering the judgment and order dated 01.08.2013 passed in Criminal Misc. Application No. 7794 of 2009, even if the impugned complaint is taken at its face value, the same do not prima facie constitute any offence as alleged under sections 323, 500, 504, 506(2) and 114 of the Indian Penal Code. Therefore, the impugned complaint before the learned Judicial Magistrate First Class, Harij, in Criminal Case No. 554 of 2008 and also the subsequent order dated 18.12.2008 including any further consequential order's arising therefrom qua the present applicants are hereby quashed and set aside. 11. Application is allowed to the aforesaid extent. Rule made absolute accordingly.