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Gujarat High Court · body

2018 DIGILAW 1272 (GUJ)

Premalbhai Sanjaybhai Patel v. State of Gujarat

2018-12-21

G.R.UDHWANI

body2018
JUDGMENT : 1. Rule. Learned Additional Public Prosecutor waives service of rule. 2. The order dated 28.09.2018 rejecting the petitioner’s application for discharge from the offences punishable under Sections 467, 468, 471 and 114 of Indian Penal Code (for short, “the IPC”) registered as IC. R. No.238 of 2013 with Kalol Taluka Police Station, which culminated into Criminal Case No.3291 of 2014, is sought to be assailed. 3. On consideration of the rival contentions, undisputedly, one Dhuliben Somaji Thakor had executed a Power of Attorney on 05.08.1994 for selling the land in question; in pursuance thereto, a sale deed dated 30.09.1996 came to be executed by the Power of Attorney favouring the petitioner, which fact is not under challenge in the criminal case. 4. Before the execution of the sale deed, the new tenure land was converted into old tenure land on 10.09.1996; a sum of Rs.3,66,000/- was deposited by the petitioner in the account of said Dhuliben, which fact again is not in dispute. 5. Pertinently, neither the Power of Attorney nor the signature or thumb impression therein or the sale deed are in dispute. The petitioner, therefore, on the basis of the sale deed claims to have acquired the title on the property in question. However, it was discovered that Dhuliben herself had executed a sale deed transferring the very piece of land on 12.04.1996 to one Dineshbhai Muljibhai; thus, the question arose about the title of the two purchasers in respect of the land in question. 6. It is, however, required to be noted that new tenure land is not transferable under the law and on 12.04.1996 the said land held the character of new tenure and according to learned Senior Advocate for the petitioner, it could not have been conveyed to Dineshbhai Muljibhai Patel. This Court, however, would not delve upon the said issue as it is not directly concerned with the case herein. 7. It appears that thereafter necessary revenue proceedings ensued before the Mamlatdar; during such proceedings, one Vahjibhai Maljibhai Rabari allegedly prepared one notarized declaration with the signature / thumb impression of Dhuliben, validating the sale deed executed in favour of the petitioner. The revenue proceedings are pending with the Special Secretary, Revenue Department. 8. As would appear from further discussion in this order, the said document is the reason for the criminal proceedings against the petitioner and said Vahjibhai. The revenue proceedings are pending with the Special Secretary, Revenue Department. 8. As would appear from further discussion in this order, the said document is the reason for the criminal proceedings against the petitioner and said Vahjibhai. The original of said document was also found from the possession of Vahjibhai; however, the copy thereof was allegedly produced by the petitioner before the Mamlatdar. 9. After about 16 years of the death of Dhuliben, her two nieces, one grand-niece and a grand-nephew instituted Special Civil Suit No.51 of 2012, the plaint whereof, eventually, came to be rejected on 15.11.2018 upon application under Order VII Rule 11, which was filed on 31.07.2012 by the petitioner herein. It is the case of the petitioner that sensing trouble in the suit, current criminal case is filed by one Kaliben Nathaji Danaji, one of the plaintiffs, on 31.12.2012 accusing the petitioner for the offences punishable u/s.467, 468, 471 and 114 of IPC in relation to the above mentioned declaration. 10. Learned Senior Advocate for the petitioner has also pointed out that one of the witnesses H.K. Gandhi has confirmed the fact that Vahjibhai got the said declaration notarized with him. It is submitted that at the time of notarization, the petitioner was not present with the Notary nor any thumb impression or signature appears on the document. 11. The aforesaid background of the case represents the complex issues. Question herein is what could be the consideration for the Court for dealing the case u/s.239 and 240 of Cr.P.C.. Sections 239 and 240 of Cr.P.C. are relevant for the decision of this Revision Application, which read thus; “239.When accused shall be discharged.If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. 240. Framing of charge. 240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for premuing that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charges or claims to be tried.” 12. It is apparent from Section 239 of Cr.P.C. that there must be application of mind to the document/s and the report sent to the Magistrate u/s.173 of Cr.P.C.; the Magistrate, in his discretion, may also examine the accused and before passing any order, the Magistrate is obligated to give an opportunity of being heard to the accused and the prosecution. The exercise u/s.239 of Cr.P.C. is not an empty formality. The report and document u/s.173 Cr.P.C. would only mean the material collected during investigation and the material must necessarily concern the ingredients of the provisions the accused is sought to be charged with. 13. For consideration of the report and documents u/s.173 of Cr.P.C. and for hearing to be effective, the Court would be obligated to take into consideration the ingredients of the relevant provisions the accused is sought to be charged with and to reach to the conclusion whether the charge is groundless or a case is made out for framing the charge u/s.240 of Cr.P.C. The questioned acts or omissions of the accused leading to the ingredients of the provisions the accused is sought to be charged with must be discerned from the material collected during investigation; else, the question will be for what the accused is sought to be tried. The discretion for framing of the charge or discharging the accused must be judiciously exercised; it must rather reflect the application of mind to the foundational facts proposed by the investigating agency for trial of the accused. The discretion for framing of the charge or discharging the accused must be judiciously exercised; it must rather reflect the application of mind to the foundational facts proposed by the investigating agency for trial of the accused. No discretion ‘at the sweet will of the Court’ can be read into in Sections 239 and 240 of Cr.P.C. The Court would be justified in framing the charge only if it is satisfied that the foundational facts, i.e. the ingredients of the provisions the accused is sought to be charged with, exist in the material collected by the investigating agency. Else, it would be a case for the charge being groundless; therefore, discharge. This Court may hasten to add that for consideration of the case under Sections 239 and 240 of the Cr.P.C., the Court would not be appreciating the evidence threadbare. Only expectation from the Court would be its satisfaction as to the existence of the ingredients of the relevant provisions in the acts or omissions of the accused; discernible in the material collected during the investigation. Once such material is noticed or found to be lacking, the Court would be justified in proceeding either under Sections 239 or 240 of Cr.P.C., without appreciating the said material. 14. The purpose and object of Sections 239 and 240 of Cr.P.C. is obvious. Firstly, the provisions aim at focusing on the necessary material in the case file. Secondly, the groundless cases must exit, immunizing the wastage of public time. It would be no use trying the accused without material; thus, saving the important public time in a case likely to result into acquittal eventually after trial. 15. Suspicion, howsoever strong may be; in absence of necessary material, would continue to be suspicion incapable of being altered into an evidence or proof. It would be, therefore, advisable for the Court not to be swayed away by mere suspicion; if, otherwise, the material is lacking from the investigation papers. 16. The impugned order does not bear any reasons for rejection of the application for discharge. In the impugned order, the trial Court, on the alleged admission of the petitioner that he has produced the document in question with the Mamlatdar, recorded that Dhuliben had died on 10.03.1997 and that the declaration followed after her death. 16. The impugned order does not bear any reasons for rejection of the application for discharge. In the impugned order, the trial Court, on the alleged admission of the petitioner that he has produced the document in question with the Mamlatdar, recorded that Dhuliben had died on 10.03.1997 and that the declaration followed after her death. It also observed that the petitioner was named in the document, which was signed by thumb impression by Dhuliben; witnessed by accused Vahjibhai Maljibhai Rabari and accused Juhaji Pratapji Thakor (since deceased). After recording the aforesaid facts, the trial Court got swayed away only by the factum that the declaration has been executed after the death of Dhuliben. The trial Court failed to gather the prima facie material of forgery, as defined in Section 463 of IPC. It also failed to address the ingredients of Section 467, 471 and 114 of IPC. In the opinion of this Court, therefore, the trial Court was not justified in rejecting the application for discharge. 17. For the foregoing reasons, the impugned order is not sustainable and it deserves to be quashed and set aside. Accordingly, the Revision Application is allowed. The impugned order is quashed and set aside. The case is remanded to the Court below for its consideration afresh in light of the observations made in this order. It is reiterated that the trial Court would address the case u/s. 239/240 of Cr.P.C. and also address the question whether and how prima facie material giving rise to the offences punishable u/s.467, 468, 471 and 114 of IPC exists or not. 18. With the above observations, the application stands disposed of. Rule is made absolute. Direct service is permitted.