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2023 DIGILAW 39 (GUJ)

Dahyabhai Rambhai Patel v. State Of Gujarat

2023-01-05

GITA GOPI

body2023
ORDER : 1. The petitioner as a retired Circle Officer has given challenge to the FIR registered as C.R. No.I-102/2017 with the Olpad Police Station, Surat Rural for the offences punishable under sections 406, 409, 420 and 114 of the IPC. 2. Mr. Nachiket A.Dave, learned advocate for the petitioner submits that no criminality could be attributed to the act of the petitioner as a Circle Officer, who had certified the entry with regard to the family arrangement as was produced before the revenue authority, and stated that the Circular being HKP-1083/252-J of Revenue Department of the Government of Gujarat, refers to Resolution No.HKP-1079-34-J, dated 10.12.1979, where it has been specified that no registered documents would be necessary to certify the entries which are in connection with the family arrangement in the record of rights. 2.1 Mr. Dave submits that the disputed entry no.2760 was certified by the present petitioner pursuant to the registration and posting of the same by the then Talati-cum-Mantri, and submits that it was neither objected nor in the knowledge of the present petitioner of the said family arrangement being forged. Mr. Dave further submits that such entries would not create any title rather would only be considered as a source of recovery of revenue on the land so distributed, and thus submits that the entries even if certified, would not grant any title to the properties as declaration of the title would always be by a Civil Court. Mr. Dave submitted that Entry No.3120, in regard to sale of land to other co-accused was posted in the year 2005, but not during the tenure of the present petitioner, as he had served the post only upto 23.02.2004. 2.2 Mr. Dave submits that the present petitioner had also appeared before the S.I.T., Surat in regard to the disputed land and has given his statement on 27.06.2017, and further states that the F.I.R. came to be lodged after inordinate delay of about 17 years for the offence as mentioned, ranges from the year 2001 to 2014, and during his tenure, serving as a Circle Officer, no complaint was registered against him. 3. Countering the arguments, Advocate Ms.Rashmiben D.Gadhavi assisted by Advocate Mr. Maurya for the respondent no.2, referring to the judgment of Ganga Dhar Kalita Vs. State of Assam and Others, reported in 2015 (9) SCC 647 and T. Vengama Naidu Vs. 3. Countering the arguments, Advocate Ms.Rashmiben D.Gadhavi assisted by Advocate Mr. Maurya for the respondent no.2, referring to the judgment of Ganga Dhar Kalita Vs. State of Assam and Others, reported in 2015 (9) SCC 647 and T. Vengama Naidu Vs. T.Dora Swamy Naidu & Ors., reported in 2008 (2) SCC (Cri.) 231, submits that any document created on the basis of power of attorney does not authorise the party to execute such a document, even if there is pendency of Civil Suit and if the F.I.R. reflects criminal element, then the accused is required to be directed to stand the trial. 4. Mr. Pranav Trivedi, learned APP, submits that if at all the present petitioner would believe that he has performed his official duty, then he is required to prove the same during the trial, and thus submitted that the proceedings should not be terminated at the initial stage. 5. As stated, an R.C.A. No.68 of 2016 is filed before the learned Civil Judge, Olpad, which is in connection with the land at village Umra, Taluka-Olpad, District – Surat, known as Revenue Survey/Block No.168, which is old tenure land, admeasuring zero Hector and 88.02 R.A. and thus, considering it as a total area of 8802 sq. mtrs. The FIR refers to Block No.168 with measurement of 2 Acres and 7 Gunthas; while Block No.199 admeasuring as 1 Hector 80 R.A. and 09 sq. mtrs. This land stated to be purchased by three brothers, Arunbhai, Mahendrabhai and Kiranbhai from Kankuben Bhagubhai Patel resident of village-Umra, Taluka Olpad and entry to the effect is 2031 in Village Abstract no.6. 5.1 The allegation is that one of the brother Arunbhai had executed a power of attorney to another brother Kiranbhai on the condition that he would be permitted to manage the property on his becoming legally incapable, and the FIR states that he has no power for sale the property. 5.1 The allegation is that one of the brother Arunbhai had executed a power of attorney to another brother Kiranbhai on the condition that he would be permitted to manage the property on his becoming legally incapable, and the FIR states that he has no power for sale the property. It is alleged that in spite of that, Kiranbhai by using power of attorney had got executed the document of distribution of the property on 15.05.2001, and by false documents of distribution of property Kiranbhai had cheated both the brothers by taking away right, title and interest of Arunbhai and Mahendrabhai, and it is alleged that all the acts had been in coordination with the Talati, and it is alleged that the document has been created by Talati in connivance with witness Rasiklal Lalubhai Patel and Bipinbhai Nathubhai Patel of Village-Umra, Taluka-Olpad. 5.2 The entry alleged of the family arrangement in connection with Block Nos.168 and 199 is 2760 dated 16.06.2001, as noted in the F.I.R., which came to be mutated on the basis of the document of family arrangement. The said entry would be by Talati-cum-Mantri in Village Abstract No.6, which has to be referred for certification in accordance with the revenue laws, and as referred, over the Circular No.HKP-1083/252-J of the Revenue Department, any entries regarding the distribution of the family property, are not required to be registered and the revenue authorities are not required to insist for registered documents for mutating the documents; and further Circle Officer would only have the role to certify the entry, where no objection has been raised at the relevant time after the due process of notice under section 135D of the Revenue Act. The only authority is Circle Officer, who is to certify the documents accordance with the Revenue Act, and it is his official duty to follow the Circulars and Notifications of the Revenue Department. Further, it is required to be noted that till the date when the entry was certified, no objection was raised and Entry No.2760 is dated 16.06.2001; and after a great delay the FIR has been registered on 28.07.2017. 6. Further, it is required to be noted that till the date when the entry was certified, no objection was raised and Entry No.2760 is dated 16.06.2001; and after a great delay the FIR has been registered on 28.07.2017. 6. 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.” 7. Considering the above facts and considering the principles laid down in State of Haryana V. Bhajan Lal and others and as the trial against the present petitioner would be abuse of process of law; the continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in the case, this Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice. 8. In the result, the petition is allowed. The impugned FIR being C.R. No.I-102/2017 with the Olpad Police Station, Surat Rural is quashed and set aside qua the present petitioner. Rule is made absolute.