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2023 DIGILAW 252 (GUJ)

Savankumar Niranjan Bhatt v. State Of Gujarat

2023-02-06

GITA GOPI

body2023
ORDER : 1. This application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No.I-1/2014 registered with Khambhat City Police Station, for offfences punishable under sections 406, 420, 465, 467, 471 and 114 of IPC. 2. Mr. Apurva R.Kapadia, learned advocate for the petitioner submitted that, the petitioner is the computer operator in the Mamlatdar Office and the only role which is attributed to him is to give effect to an entry in the revenue record as per the direction of the Mamlatdar pursuant to the order passed by Special Secretary (Appeals). Mr. Kapadia submitted that the petitioner as a computer operator was duty bound to follow the orders and thus no criminality can be attributed to him, and hence made a prayer to quash the FIR qua him. 3. The facts of the case suggest that the land bearing No.95 was originally owned by one Diwaliben and her son Somabhai Parshottambhai. The FIR narrates that accused no.1 got executed a sale deed in his favour from Diwaliben on 01.05.2004 under the guise of creating a mortgage and thereafter Diwaliben and her son filed Civil Suit No.82 of 2007, wherein compromise was arrived at and the sale transaction which was executed in favour of accused nos.1, 2, 3 stood cancelled and Diwaliben and her son were declared as owner of the property. 3.1 It is alleged in the FIR that the complainant - respondent no.2 had purchased the land by registered sale deed from son of the Diwaliben on 25.10.2011, and since then he is the owner and occupier of the land in question. The complainant had taken a loan from the State Bank of India on the said land by creating mortgage. It is alleged by the complainant that accused nos.1, 2 and 3 in connivance with the officers of the State Government i.e. accused nos.12, 13 and 14 had removed the entry of charge towards the loan procured from State Bank of India, which was there in the 7/12 extracts of the revenue records, and it was because of that fact, the accused nos.1, 2 and 3 had sold the land in favour of accused nos.4 to 6 by way of registered sale deed dated 02.07.2013. 3.2 The complainant has alleged that the registered sale deed dated 02.07.2013 bearing no.1312 is a paper document, and by a criminal conspiracy against the complainant, the entry regarding the Bank loan was illegally deleted on 20.06.2013, and thus, by manipulating the government record, the ownership right of the complainant was infringed and by way of false documents, the accused have tried to illegally capture the complainant’s possession on the land. Further, it is stated in the complaint that though there has been settlement between the accused nos.1, 2 and 3 in the Civil Courts, the question of false documents would still survive, and has stated that it is just because of the entry which had been deleted in connivance, that, the complainant had to face the undue hardship in relation to his land. 3.3 Mr. Kapadia submitted that Diwaliben sold the land, Block No.91, to accused no.1 and entry no.1129 came to be mutated in the revenue record, and since the said entry was not certified by the Mamlatdar, the accused no.1 challenged the same before the Deputy Collector and having lost there, he further challenged the same before the Special Secretary by way of revision, which was allowed on 28.09.2012 directing the Mamlatdar to certify the entry no.1129. It is submitted by Mr. Kapadia that pursuant to the order of S.S.R.D., the entry was posted in the revenue record being entry no.1463 and 1464 and no objection was raised by the complainant; the entry no.1464 was certified and the entry regarding the loan and creation of mortgage in the second loan was removed from the record of rights, and thus Mr. Kapadia submits that the entire entries were posted in the record of rights by the present petitioner as a computer operator on the basis of the order passed by the Mamlatdar and Special Secretary and thus states that no role could be attributed to the petitioner to even allege any connivance or any criminal conspiracy. 3.4 Mr. Kapadia stated that further the fact even reflects that the complainant has settled with the other co-accused and the property is in his own name. Mr. 3.4 Mr. Kapadia stated that further the fact even reflects that the complainant has settled with the other co-accused and the property is in his own name. Mr. Kapadia submitted that the police ought not have filed even the FIR, since the entries were made under the orders of the SSRD and Mamlatdar, and the issues were settled before the Civil Court and the subsequent grievances if at all raised by the complainant also gets resolved, and further submits that the complainant even had not declared before the Civil Court of pursuing any criminal liability against any of the authorities of the revenue department. 4. Mr. Hardik Mehta, learned APP submitted that the matter is relating to the settlement in the Civil Court, and states that the witness to the sale deed, accused no.8, had preferred a Criminal Misc. Application for quashing and setting aside the FIR No.411 of 2016, where the coordinate bench had observed about the facts of Civil Suit compromised and the sale transaction entered by Diwaliben and her son with petitioner nos.1, 2 and 3 came to be cancelled, and the complainant who had purchased the property by way of sale deed from the son of Diwaliben on 25.10.2011 is the owner and occupier of the land in question; the FIR against him came to be quashed by order on 13.01.2017. 4.1 Learned APP has contended that the present petitioner as computer operator was responsible for mutating the entries and it was a deliberate act of deleting the entry which was regarding the second right of the State Bank of India for the loan of Rs.10 Lakhs. 5. Heard learned advocates for both the sides. Reference was also made about the details of the computer operator’s work, the copy of the same is produced at page-25 of the record, which shows that the entry with regard to the disputed application was made on 19.04.2013 by the present petitioner; and further there is an entry on 21.06.2013 regarding the decision of the disputed entry which was made by Prakashchandra Narsinhbhai Patel, the Deputy Mamlatdar, at 12.25, and immediately at 12.26 on the very same day i.e. on 21.06.2013, the entry is shown by the computer operator regarding the updation of details on the charge of the property. This itself suggests that the entries would have been made under the instruction of the Deputy Mamlatdar. This itself suggests that the entries would have been made under the instruction of the Deputy Mamlatdar. The order of Special Secretary is dated 28.09.2012. The entry has been shown as disputed by the present petitioner by an entry on 19.04.2013 at 13:10, and thereafter subsequently on 21.06.2013 the alleged entry has been made. 6. Advocate Mr. Kapadia submits that as per EDhara manual, the computer operator cannot make any change in the record of 7/12 extract, and any change in the record of rights can be done only after Mamlatdar/ Deputy Mamlatdar signs in the S-Form, and thereafter when the thumb impression is attested by the Mamlatdar/ Deputy Mamlatdar in the computer the entries are posted. In the instant matter, Mr. Kapadia stated that, FForm is signed by Mamlatdar – Mr. Modi and thumb impression was given by Deputy Mamlatdar – A.C. Rana, and the entries are typed and posted by the petitioner. Thus, this itself clears the fact that petitioner has discharged his duties as computer operator under the instructions of Mamlatdar and Deputy Mamlatdar. 7. The E-Dhara manual and even the fact as reflected in the documents produced at page-25 on record, which is regarding the details of work of the computer operator, the disputed entry is immediately after the entry made by Deputy Mamlatdar on 21.06.2013 regarding the decision of the disputed entry, and the only difference in time of entry is 00.01. The disputed entry is 12:26 hours, which would certainly be under the instruction of the Mamlatdar and Deputy Mamlatdar, as the system would operate only being updated with thumb impression of authorised person. Further, the FIR itself suggests that the complainant has settled with the other co-accused. The ownership of the property is with him. Considering the fact that present petitioner is a computer operator who had worked under the instruction of the Mamlatdar and Deputy Mamlatdar, no criminality can be found in his act. 8. In case of State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604 , the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. The Apex Court in the said case made the following observations:- “8.1. The Apex Court in the said case made the following observations:- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised: (a) 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; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a 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; (c) 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 make out a case against the accused; (d) where the allegations in the FIR do not 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; (e) 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 there is sufficient ground for proceeding against the accused; (f) 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; (g) 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.” 9. In the result, the petition is allowed. The impugned First Information Report being C.R. No.I1/2014 registered with Khambhat City Police Station is quashed and set aside qua the present petitioner. Direct service is permitted.