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2024 DIGILAW 2240 (GUJ)

Naresh Nemchandbhai Shah v. State Of Gujarat

2024-12-24

SANDEEP N.BHATT

body2024
JUDGMENT : SANDEEP N. BHATT, J. 1. The present petition, under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023, is filed by the petitioners – original accused for :- (i) quashment of the impugned summons / notice dated 05.09.2024, 11.10.2024 and 06.11.2024 issued by respondent No.3 i.e. the Deputy Superintendent of Police, CID Crime, Ahmedabad Zone, Ahmedabad pursuant to the application dated 28.06.2024 filed by the original complainant – respondent No.4, (ii) directing respondent No.3 to place on record the said application dated 28.06.2024 being No.CID/AU Application No.1045/1373/2024 and quash the same and (iii) restraining respondents No.2 and 3 from carrying out any investigation / inquiry pursuant to the said application dated 28.06.2024 pending this petition. 2. Heard learned senior advocate Mr.Anshin Desai with learned advocate Mr. Apurva Kapadia for the petitioners, learned advocate Mr. Dipan Desai for original complainant and learned Public Prosecutor Mr.Hardik Dave with learned Additional Public Prosecutor Mr.Adityasinh Jadeja for the State. 3.1 Learned senior advocate Mr.Anshin Desaid for the petitioners has submitted that on bare reading of the allegations levelled by the complainant, it does not constitute any offence as alleged and, therefore, the application dated 25.06.2024 filed by the complainant is not maintainable. He has further submitted that the said complaint is filed after a delay of almost 8 years from the date of the sale transaction. He has also submitted that the complaint in question is field only to blackmail the petitioners for oozing out money. He has also submitted that the alleged purchase of the complainant is of the year 2016 from one Rashikbhai Lallubhai Patel, who had no right, title or interest to enter into the sale deed, once the land was sold to plot holders from the year 2007 onward and therefore, such a filing of an application for registration of FIR after delay of almost 8 years from the sale itself is an abuse of process of law. 3.2 He has further submitted that by filing straightway application to the respondent authorities, who are incompetent to investigate, is not at all maintainable under the provisions of Section 154 of the Code of Criminal Procedure, 1973. He has also submitted that it is only when the competent police officer of the concerned police station refuses to lodge complaint, an application can be made to the superior officer. He has also submitted that it is only when the competent police officer of the concerned police station refuses to lodge complaint, an application can be made to the superior officer. The present application is moved directly to the office of respondent No.2 – C.I.D. Crime, Ahmedabad, only because of the fact that the day on which the application is moved to the concerned police station, immediately, the offences being registered under the direction of the higher officers and all the petitioners can be held under the said offences and be arrested immediately and therefore, moving of such an application before the higher authority is not maintainable in the eyes of law. 3.3 He has further submitted that CID Crime, Ahmedabad despite knowing well that in respect of the land in question, when two FIRs are already filed against respondent No.4, taking such application for the offence, which has not occurred within the territorial jurisdiction of CID Crime, Ahmedabad, notice has been issued, which speaks the conduct of respondent No.3 for initiation of the proceeding at the behest of respondent No.4. He has submitted that repeated attempts to call petitioner No.1 for recording of the statement for the offences, in which, respondent Nos. 2 and 3 have no jurisdiction to investigate itself, the conduct of respondent Nos.2 and 3 of blackmailing the petitioners so that the dispute can be settled with the respondent No.4. 3.4 He has further submitted that it is a civil dispute, which has been converted into criminal one by respondent No.4 by filing the impugned complaint just to settle personal score and ooze out money from the petitioners. He has also submitted that petitioner No.1 had already appeared before respondent Nos.2 and 3 at least on three occasions and was made to sit for at least ten hours and finally on 12.11.2024, his statement was recorded and all throughout, he has cooperated and all the documents were produced before the authorities by him. 3.5 In support of his submissions, learned senior advocate for the petitioners has relied upon the decision of the Hon’ble Apex Court in the cases of :- (i) Lalita Kumari versus Government of Uttar Pradesh reported in (2014) 2 SCC 1 and (ii) Asit Bhattacharji versus Hanuman Prasad Ojha and others reported in (2007) 5 SCC 786 . 3.5 In support of his submissions, learned senior advocate for the petitioners has relied upon the decision of the Hon’ble Apex Court in the cases of :- (i) Lalita Kumari versus Government of Uttar Pradesh reported in (2014) 2 SCC 1 and (ii) Asit Bhattacharji versus Hanuman Prasad Ojha and others reported in (2007) 5 SCC 786 . 3.6 He has submitted that the present petition may be allowed by protecting the petitioners and the impugned notice may be quashed and set aside. 4.1 Learned advocate Mr. Dipan Desai for respondent No.4 - original complainant has vehemently opposed this petition. He has submitted that no FIR is lodged till date and in absence of any FIR being registered, the petitioners have no right to invoke inherent powers under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023. He has further submitted that the present petition is completely pre-mature as the CID Crime is only inquiring the allegations levelled by the complainant in its complaint dated 25.06.2024. Therefore, in absence of any FIR being registered, the inherent powers of this Court is not required to be exercised. 4.2 He has also submitted that the complaint is with regard to forged property cards being created on agricultural lands though there are no N.A. orders passed with respect to the lands in question. The complaint also alleges that though the complaints have been made to various authorities in the regard such as the Collector, the Commissioner of Police, Surat, Police Inspector, Economy Cell, Surat, so also the Hon’ble Chief Minister, however, no actions are taken and therefore, the complaint is filed with the CID Crime. 4.3 He has also submitted that no notice was issued to petitioner No.2 and all the notices, that are produced along with the present petition, are only issued to petitioner No.1. 4.4 He has further submitted that as per Section 156(2) of the Code of Criminal Procedure, the proceedings of investigation cannot be questioned on the ground of jurisdiction of the officer to conduct such investigation. In the present case, the stage of investigation has not yet reached as FIR is not yet registered, however, as per Section 156(2) of the Code, even investigation cannot be challenged on the ground that officer investigating the case has no jurisdiction. Therefore, the challenge to the jurisdiction of Cid Crime is required to be rejected. In the present case, the stage of investigation has not yet reached as FIR is not yet registered, however, as per Section 156(2) of the Code, even investigation cannot be challenged on the ground that officer investigating the case has no jurisdiction. Therefore, the challenge to the jurisdiction of Cid Crime is required to be rejected. He has submitted that even otherwise also, the CID Crime has jurisdiction in all over the State and therefore, even factually, the said contention is misconceived. 4.5 He has also submitted that reliance placed upon the FIRs lodged against the complainant is misconceived inasmuch as the allegations levelled in the said FIRs have nothing to do with the complaint lodged by the complainant and the allegations levelled therein. Furthermore, with regard to one of the FIRs being C.R.-I No.31 of 2018, the complainant has filed discharge application in the criminal proceeding arising from the very FIR and against that, the complainant has approached this Court by filing Criminal Revision No.267 of 2023, wherein the Co-ordinate Bench of this Court has, vide order dated 14.03.2023, stayed the further proceedings pursuant to the said FIR. The said aspect is intentionally not brought to the notice of this Court and concealed by the petitioners. 4.6 In support of his submissions, he has relied upon the decision of the Hon’ble Apex Court in the cases of (i) Hukum Chand Garg Versus The State of Uttar Pradesh recorded on Special Leave to Appeal (Crl.) No.762 of 2020 dated 07.02.2022 and (ii) Pradeep N. Sharma versus State of Gujarat reported in 2019 (2) GLR 1591 , and has submitted that the present petition is pre-mature and therefore, the same is required to be rejected. 5.1 Learned Public Prosecutor Mr.Hardik Dave with learned Additional Public Prosecutor Mr.Adityasinh Jadeja for the State has submitted that there is no registered partnership firm in the name of Samruddhi Corporation and the scheme viz., Silent Zone is fraudelently floated and the purchasers of the plots have filed civil suit against the owners of that partnership firm and issues are pending before the competent Civil Court, Surat, the socalled property cards are even falsely created, which are seized by the competent authority in appropriate proceedings vide order dated 06.06.2023 at the behest of the complainant, which is not challenged by anyone before the higher authority, the sale transactions have been made by treating orally the agricultural land as non-agricultural land and today the status of the land is shown as agricultural land. 5.2 He has further submitted that there are many irregularities from the so-called sale deeds to conversion of land into non-agricultural land, and taking development permission, in creating so-called forged property cards, etc. He has also submitted that pursuant to the FIRs against the complainant, the criminal cases are pending before the competition criminal Courts at Surat arising from the land in question. He has also submitted that it seems prima facie that there are many persons involved in the land in question, including the present complainant, the petitioners, etc. 5.3 He has also submitted that pursuant to the notices impugned dated 05.09.2024, 11.10.2024 and 06.11.2024, petitioner No.1 has appeared before the authority on 12.11.2024 and therefore, the question of challenging such notices impugned does not arise as such notices have lost their lives. He has submitted that since the investigation is going on pursuant to the complaint of the complainant dated 25.06.2024, the challenge to such investigation at this pre-mature stage would not be entertained by this Court by exercising the inherent powers of this Court. He has submitted that this petition may be rejected by not protecting the petitioners at this stage. 6.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the various documents available on record. From the record, it transpires that there is a chequered history of the parties as well as of the lands in question. Many proceedings i.e. civil proceedings, criminal proceedings, and revenue proceedings have been initiated by the parties against each other. I have perused the various documents available on record. From the record, it transpires that there is a chequered history of the parties as well as of the lands in question. Many proceedings i.e. civil proceedings, criminal proceedings, and revenue proceedings have been initiated by the parties against each other. 6.2 The challenge by the petitioners regarding impugned summons/notices, dated 05.09.2024, 11.10.2024 and 06.11.2024 issued by respondent Nos.2 the application dated 25.06.2024 filed by the respondent No.4 - complainant would become infructuous as petitioner No.1 has appeared before the authority on 12.11.2024. 6.3 Truth has tendency to surface. 6.4 This Court prima facie finds that there is no harm to continue with the investigation and investigation would reveal the correct the fact if it is allowed to continue, therefore, this Court is not inclined to interfere in the proceedings by exercising its inherent powers under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023. 6.5 Furthermore, since the complaint, as agitated by the complainant, is with regard to forged property cards being created on agricultural land though there are no NA orders passed with respect to the land in question, and since the so-called forged property cards have been made off-line and freezed by the competent authority in appropriate proceedings initiated by the complainant himself vide order dated 06.06.2023, which is not challenged by any person before higher authority, the reasons best known to the complainant to file another complaint before the CID Crime, Gandhinagar, for the very grievance, which is under challenge by the petitioners, would become practically infructuous on the face of the record itself and therefore, it is not required to be considered at all by this Court at this stage as it has no relevance. 6.6 It is fruitful to refer to the provisions of Section 156 and Section 177 of the Code of Criminal Procedure, 1973, which are reproduced as under : “156. Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned. 177. Ordinary place of inquiry and trial.—Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.” 6.7 In the present case, it is clearly transpires that alleged offence committed and offenders residing are within the territorial jurisdiction of Surat. It also transpires that the complainant has earlier made complaints before the local police as well as higher authorities of local police. It seems that the local police has not acted on such complaint made by the present complainant. It also transpires that after a long time, the application is given to the CID, Crime of the State by way of the present complaint, which was accordingly inquired by the CID, Crime of the State and it seems that the statement of petitioner No.1 is also recorded. Therefore, such repeated communication for same inquiry raises several valid questions about purpose as well as manner and method of investigation adopted by such officers of the CID, Crime. Though, the CID, Crime has jurisdiction to inquire throughout the State, but, at the same time, it can do with propriety and with accountability. Now-a-days, this Court has come across many cases where the concerned officers have acted in very strange and suspicious manner. The law is meant for protection of rights of innocent citizens and also to punish the real offenders who have committed crimes. Therefore, role of investigating agency is important and such investigation must be carried out in accordance with the law and without fear and favour as well as with integrity by the investigating officers. The law is meant for protection of rights of innocent citizens and also to punish the real offenders who have committed crimes. Therefore, role of investigating agency is important and such investigation must be carried out in accordance with the law and without fear and favour as well as with integrity by the investigating officers. Under the circumstances, the Director General of Police, Gujarat State and the Secretary, Home Department, Gujarat State shall take note of the above observations and do needful to correct the system. 7. At this stage, it is fruitful to refer to the decision of the Hon’ble Apex Court in the case of State of Uttar Pradesh and Another vs. Akhil Sharda and Others reported in (2023) 11 SCC 626 , more particularly paras 18 and 19 thereof, which read as under: “18. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See Pratima (supra); Thom (supra); Rajiv (supra) and Niharika (supra). 19. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.” 8. It is also fruitful to discuss legal position by referring to the decision of the Hon’ble Apex Court in the case of State of Jammu and Kashmir versus Dr. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.” 8. It is also fruitful to discuss legal position by referring to the decision of the Hon’ble Apex Court in the case of State of Jammu and Kashmir versus Dr. Saleem Ur Rehman reported in (2022) 13 SCC 675 , more particularly Paras : 30 and 31 thereof, which read as under : “30. So far as the submission on behalf of the respondent that in the present case by conducting a Preliminary Enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of Preliminary Enquiry, investigation is not permissible since the FIR is lodged is concerned, the aforesaid submission seems to be attractive but has no substance. While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the code of criminal procedure which can only be after registration of the FIR. 31. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which, as observed hereinabove, can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires.” 9. Furthermore, it would also be fruitful to refer to the decision of the Hon’ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. V/s State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 as under : “80. 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/chargesheet 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/chargesheet 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 the above-mentioned discussions and in totality of the facts and circumstances of the case, since none of the prayers has outlived its life, this petition is not required to be entertained, at this stage, by keeping all rights and contentions of the parties open. This petition, therefore, requires to be disposed of and is disposed of accordingly, as at present, no prayers need to be granted.