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2022 DIGILAW 1554 (GUJ)

Nathubhai Bhurabhai Bharvad v. State of Gujarat

2022-11-11

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Issue Rule returnable forthwith. Mr. Soaham Joshi, learned APP waives service of notice of Rule on behalf of the respondent no.1-State. 2. By way of present application, the applicants herein have prayed for the following reliefs :- "(A) YOUR LORDSHIP be pleased to admit this petition. (B) YOUR LORDSHIP be pleased to quashed and set aside the First Information Report, the offence registered as C.R. No. I-105/2015 on Dtd.27-12-2015 with Viramgam Rural Police Station, dist-Ahmedabad (Annexure-A) qua the petitioners in the interest of justice. (C) YOUR LORDSHIP may be pleased to stay the further proceeding in connection with the offence registered at C.R. No. I-105/2015 on Dtd.27-12-2015 with Viramgam Rural Police Station, Dist-Ahmedabad (Annexure-A) qua the petitioner in Pending, admission, hearing and Final disposal of this petition. (D) YOUR LORDSHIP be pleased to grant such other and further relief(s) as deem fit to grant in the interest of justice." 3. It is the case of the applicants that the land bearing Survey No.187, ad-measuring Hr.Sq.2-18.53 of Village Liya, Taluka Viramgam, District: Ahmedabad was originally in the name of the father of the respondent No.2. It is submitted that the land was purchased by Bhurabhai Kamabhai by registered sale deed on 21.11.1999, by registered sale deed No.1137 of 1999, and entry in the revenue record for the sale deed was mutated in revenue record by revenue entry No.1899 on 27.07.2006. It is submitted that after death of Bhurabhai Kamabhai heirs of the Bhurabhai (applicant No.1 to 4) preferred an application to enter their name in revenue record as legal heirs of Bhurabhai Kamabhai, after verifying the documents on record, the Circle Officer, Detroj Division Viramgam, certified the said entry being entry No.1915 on 26.02.2007. 4. The applicants herein submits that the applicants No.1 to 4 are legal heirs of Bhurabhai Kamabhai and other 5 to 6 are as witnesses so there is no prima facie case against the applicants herein. 5. It appears that respondent No.2-original complainant filed impugned FIR on 27.12.2015, alleging that the Bhura Kama Bharvad had falsely executed the Agreement with fake persons and the land was falsely registered on his name in the Revenue records. 5. It appears that respondent No.2-original complainant filed impugned FIR on 27.12.2015, alleging that the Bhura Kama Bharvad had falsely executed the Agreement with fake persons and the land was falsely registered on his name in the Revenue records. Also this fact was already known to the heirs of Bhura Kama – namely (1) Natthu Bhura Bharvad, (2) Raiji Bhura Bharvad, (3) Ramsi Bhura Bharvad and (4) Baluben Bhura Bharvad, Thereafter due to death of this Bhura Kama Bharvad on 01/02/2000, despite knowing the above fact about fake documentation by their father, his heirs have made Succession entry (for heirship) vide no. 1915 – dtd. 26/02/2007. Hence, these persons have falsely entered their names in the said land as per the heirship rights. Hence, it is my complaint to run the legal trial against the below mentioned accused persons, namely... (1) Bhura Kama Bharvad – (died), Resi. At – Liya, Tal. Viramgam, (2) Natthu Bhura Bharvad - Resi. At – 10, Purshottam nagar, Nr. Radhaswami Raw House, Bh. Shuklam School, Chandlodiya, Ahmadabad. (3) Raiji Bhura Bharvad, (4) Ramsi Bhura Bharvad (5) Baluben Bhura Bharvad - Resi. At – Liya, Tal. Viramgam, (6) Prabhu Ambaram Ko. Patel (7) Popat Shankar Vanand - Resi. At – Liya, Tal. Viramgam, My Witnesses are the people mentioned in the Complaint as well as those who are found during the investigation." 6. By order dated 04.04.2016, Notice came to be issued by the Co-ordinate Bench of this Court, the order dated 04.04.2016 reads thus :- "For the offence allegedly committed in the year 2007, the complaint is lodged in the year 2015. It is the grievance of the petitioner that the register sale deed has been effected on 21/11/1999 and the entry is mutated in revenue record on 27/7/2006. Respondent no.2 has, at no stage, resorted to any civil proceedings. Let notice be issued to the respondents, to be made returnable on 21st April, 2016. Ms. Maithali Mehta, learned APP waives service of notice for respondent No. 1. Respondent no. 2 to be served through concerned police station. Mr. Nangesh, learned advocate for the petitioners submits that petitioners nos. 1, 2, 5 & 6 have already been protected by way of regular bail and he has preferred an application for Anticipatory Bail for petitioner nos. 3 & 4, which is coming up on board on 6/4/2016. Respondent no. 2 to be served through concerned police station. Mr. Nangesh, learned advocate for the petitioners submits that petitioners nos. 1, 2, 5 & 6 have already been protected by way of regular bail and he has preferred an application for Anticipatory Bail for petitioner nos. 3 & 4, which is coming up on board on 6/4/2016. Therefore, he does not insist on any interim relief at this stage." 7. Mr. Vijay H. Nangesh, learned advocate appearing for the applicants submitted that the applicants herein are legal heirs of the deceased Bhurabhai Kamabhai and other 5 to 6 are witnesses to the said sale deed. Mr. Vijay H. Nangesh, learned advocate appearing for the applicants submitted that the applicants herein are legal heirs of the deceased Bhurabhai Kamabhai, once the sale deed entered into the complainant and the deceased Bhurabhai Kamabhai by registered sale deed dated 21.11.1999, the applicants entered their name in the revenue record as legal heirs being entry No.1915 on 26.02.2007. The said entry has not been subject matter of challenge or the sale deed has not been challenged by the complainant and therefore, it is also a case of the applicant herein that the complaint is filed after a period of nine years as there is no proper explanation for gross delay and therefore, the impugned FIR be quashed and set aside qua the applicants herein. 8. Per contra, Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State placed on record a report dated 11.11.2022 filed by the Police Sub Inspector, Viramgam Rural Police Station and the same is taken on record. Placing reliance on the said report, Mr. Soaham Joshi, learned APP submitted that the sale deed dated 21.11.1999 though it was a registered sale deed being entry No.1137 of 1999, submitted that the FSL report states that the thumb impressions are not of the complainant in sale deed dated 21.11.1999 bearing registration number - Registered Sale Deed No.1137 of 1999. Placing reliance on the same, Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State submitted that the charge-sheet has been filed as back as in the year 2016 and process has been issued qua the present applicants. 9. Placing reliance on the same, Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State submitted that the charge-sheet has been filed as back as in the year 2016 and process has been issued qua the present applicants. 9. At this stage, it is apposite to refer to the ratio laid down by the Hon’ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. V/s. State of Maharashtra reported in AIR 2021 SC 1918 , the relevant Para-23 read thus : “23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/charge-sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: (i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; (ii) Courts would not thwart any investigation into the cognizable offences; (iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). (v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; (vi) Criminal proceedings ought not to be scuttled at the initial stage; (vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; (viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; (ix) The functions of the judiciary and the police are complementary, not overlapping; (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; (xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; (xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; (xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; (xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/charge-sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. (xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. (xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 10. In view of this Court, since the charge-sheet is filed and the FSL report which has been relied upon by the prosecution disputes the thumb impression on the said sale deed, this Court is not inclined to exercise its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure, as no exceptional circumstances arise for interference by this Court. It is open for the applicant to avail statutory remedy available under the law. If an application is preferred by the applicant, the concerned Court may consider the same in accordance with law. 11. The present application stands disposed of accordingly.