Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 933 (GUJ)

Chavda Dineshji Sendhaji v. State Of Gujarat

2024-04-18

DIVYESH A.JOSHI

body2024
JUDGMENT : 1. By way of present application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed for quashing and setting aside First Information Report being C.R. No.I- 51/2017 registered with Visnagar City Police Station for the offences under Sections 465, 468, 471 and 120(B) of the Indian Penal Code. 2. The gist of the FIR is as under, On 06.03.2017, the Taluka Development Officer received one application from the applicants seeking ‘Sanad’ for their land, however, the Taluka Development Officer having suspicion over the order of the year 1992 produced by the applicants, entrusted the investigation to the respondent no.2 herein and in pursuance thereto, detailed inquiry was carried out that there was no record found available with the office for passing the said order nor the copy of the said order was available with the office and thus, it is alleged that with a sole intent to grab the Government land, the accused have forged and fabricated the order and thereby the accused have committed alleged offences. 3. Heard learned advocate, Ms. Archita Prajapati for the applicants, learned APP Mr. Dhavan Jayswal for the respondent no.1 and learned advocate, Ms. Sejal Mandaviya for the respondent no.2. 4. Learned advocate, Ms. Prajapati submitted that on 22.05.2017, the impugned FIR has been registered before Visnagar City Police Station for the alleged offences against the present applicants. Learned advocate submitted that as per the case of the prosecution, the applicant no.1 has submitted an application before the Taluka Development Officer for the purpose of getting ‘Sanad’ for the property, which they are using since number of years and at the time of submission of the said application, the applicant no.1 has produced copy of the order dated 06.05.1992 passed by the concerned revenue authority in favour of the father of the applicant no.1 and on the strength of the said order, they have become the absolute owner and occupier of the property. Learned advocate submitted that however, the Taluka Development Officer was prima facie of the opinion that the order upon which reliance is placed by the applicant no.1, is not genuine one, therefore, he had made discreet inquiry about the genuineness of the said order and on the strength of the preliminary inquiry, it was found out that in fact, for passing of the order dated 06.05.1992, there was no such proceeding undertaken and there is no record available in that regard, therefore, the Taluka Development Officer was of the opinion that with sole intent to grab Government property/land, forged and fabricated documents have been prepared and the said documents are also produced on record as if the said documents are genuine and by doing so, the accused has committed alleged offences, therefore, he has entrusted the inquiry to the Circle Officer and in pursuance thereto, inquiry was carried out and it was found that the said order was shame, false and forged one, therefore on the strength of the report prepared by the officer concerned, a specific direction was given to the concerned Circle Officer to register the complaint against the accused persons. Learned advocate submitted that pursuance to the registration of the FIR, the Investigating Officer has commenced the investigation and as soon as the said fact has come to the notice of the present applicants, they have immediately approached this Court and this Court has protected the applicants considering the role attributed to them. Learned advocate submitted that in fact, as per the case of the prosecution, the said so-called order was prepared and issued in the year 1992 and at the relevant point of time, the age of the accused no.1 is only 9 years, therefore by no stretch of imagination, it can be held that the involvement of a boy aged about 8-9 years to prepare forged and fabricated documents is to be found out. Learned advocate further submitted that during lifespan of the grandfather of the applicant no.1, the said order was found available and on the strength of the said order, they have preferred an application at earlier point of time before the competent revenue authority to get permission to construct pakka house upon the said property/ land and the members of the Panchayat passed Resolution and granted permission for construction in the year 2011. Learned advocate submitted that on the strength of the issuance of the order in the year 1992, name of the father and forefather of the applicants have already been mutated in the revenue record and at that relevant point of time, nobody has raised any objection about the authenticity and veracity of the said document and thus in short, during lifespan of the grandfather of the applicant, the said document has come on surface and on the strength of the said document, certain permissions were granted by the revenue authority, therefore by no stretch of imagination, it can be said that the present applicants have created forged and fabricated documents and the document, which was lying in the custody of the present applicants and produced before the TDO at the time of getting Sanad in their favour, is forged and fabricated one and merely by production of said order along with an application, it cannot be constructed as commission of crime but at the most, the role of the present applicant at the time of commission of crime can be considered as they have produced the copy of the order but the copy of the said order was already produced by the grandfather of the applicant no.2 and at the earlier point of time and after considering the veracity of the said documents, orders were passed in favour of the applicants, therefore, it cannot be said that the present applicants were at all aware about the fact that the said document was forged and fabricated one. 5. Learned advocate submitted that at the time of preferring the present petition, the Coordinate Bench of this Court has passed specific order that the applicants shall not be arrested in pursuance to the FIR in question and thus, it seems that the concerned Investigating Officer might have carried out investigation. Learned advocate, therefore, submitted that that considering the above factual aspects, it is found out that there is no involvement of the applicants in the alleged commission of crime and there was no mens rea on the part of the present applicants. Learned advocate, therefore, submitted that that considering the above factual aspects, it is found out that there is no involvement of the applicants in the alleged commission of crime and there was no mens rea on the part of the present applicants. Learned advocate submitted that the concerned TDO, who had prepared and executed the said order in the year 1992, has already passed away, therefore, even as on today, the prosecuting agency could not be able to carry out scientific evidence so far as handwriting expert’s opinion on the forged document is concerned. Learned advocate, therefore, urged that considering the ratio enunciated by the Hon’ble Apex Court in the decision of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the proceeding initiated against the present applicants are required to be quashed and the present application is required to be allowed. 6. On the other hand, learned APP Mr. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the proceeding initiated against the present applicants are required to be quashed and the present application is required to be allowed. 6. On the other hand, learned APP Mr. Jayswal appearing for the respondent – State of Gujarat has objected the present application with a vehemence and submitted that the application for obtaining Sanad in favour of the present applicants was preferred by the accused persons attaching the order of the year 1992, however at the time of considering the said application, the concerned TDO was prima facie of the opinion that the copy of the order produced along with the application prima facie seems to be not genuine and forged one, therefore, he passed an order to carry out investigation and in pursuance to the said order, detailed investigation was carried out by the officer not below the rank of Mamlatdar and found that there is no such order as well as papers pertaining to procedure available in the record and the copy of the order, which the applicants have produced along with the application for obtaining Sanad and thus, it seems that the said order is forged and fabricated one and created with sole intent to dupe the Government and by way of illegal means, a systamatic plan is organized with an intent to grab the valuable property/land of the Government, forged and fabricated order is prepared by the applicants and on the strength of the detailed report submitted by the officer concerned, the Collector has passed an order for registration of the complaint against the accused persons and pursuant to registration of the FIR, the investigation was carried out. Learned APP submitted that in fact, the investigation was not stayed by this Court, which clearly goes on to show that the said document/order upon which reliance is being placed by the applicants, is forged and fabricated one and during inquiry, it was also found that there was no such inquiry conducted for passing of said order and the said order is not found available in the record and for the purpose of arriving at particular conclusion, the concerned IO has carried out intensive investigation and recorded the statements of number of witnesses under Section 161 of the Criminal Procedure Code and detailed report in that regard is prepared, which clearly goes on to show that the said documents is not genuine one. Learned APP submitted that with a sole intent to obtain Sanad on the strength of the forged and fabricated document, the applicants preferred an application, therefore, the applicants are the main persons and the source of information, who can throw light upon the said facts as to where did they get custody of the said documents and who had entrusted the said documents to them and/or who had prepared the said documents or at the time of preparing the said order, the involvement of the other person is there or not?. Learned APP further submitted that prima facie on the basis of the information carried out by the IO, direct involvement of the present applicants is found out and very serious offence of forgery of the Government document and rubber stamp and/or seal was used and not only that, after creating the false and fabricated documents, same were shown to the authority to place them on record and used as a genuine documents with sole intent to get custody of the Government and in illegal manner, therefore, very serious and grave offence is being committed by the accused persons. It is submitted that admittedly in the present matter, at the time of issuance of notice, the applicants are protected, however, the investigation was directed to be continued and in pursuance thereto, the concerned IO has carried out investigation but chargesheet has not been filed. Learned APP, however, submitted that from the evidence collected so far, the involvement of the present applicants in the commission of crime is found out. Learned APP, however, submitted that from the evidence collected so far, the involvement of the present applicants in the commission of crime is found out. It is, therefore, urged that as there is prima facie case against the applicants and involvement found out, no discretion may be exercised in favour of the applicants – accused and, hence, this application is required to be rejected. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is found that the aforesaid application has been filed for quashment of the impugned FIR lodged against the applicants alleging inter alia with regard to the forgery of the documents and based on the said forged and fabricated documents, an attempt is being made by the applicants to grab the valuable land of the Government. It is found out that before registration of the FIR, detailed investigation has been carried out by the concerned officer, who has been entrusted inquiry and while carrying out detailed inquiry, it was found that for passing the order of the year 1992, which was produced by the applicants along with the application for the purpose of obtaining Sanad, there was no procedure undertaken by the office concerned and in fact, copy of said order is also not found available in record, which clearly goes on to show that the order, which the applicants are possessing, is forged one. 8. At this stage, this Court would like to reproduce the provision of Sections 465, 468 and 471 of the Indian Penal Code, which read as under, “465 Punishment for forgery.—Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 468 Forgery for purpose of cheating.— Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471 Using as genuine a forged document or electronic record.—Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.” 9. 471 Using as genuine a forged document or electronic record.—Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.” 9. Thus from the above provisions, it is evident that Section 465 provides for punishment for forgery, Section 468 provides for Forgery for purpose of cheating and Section 471 provides for using as genuine a forged document or electronic record. Thus in the present case on hand, it is found out from the record that the applicants have forged the documents and same have been used as genuine with a sole intent to obtain Sanad from the revenue record and the said fact has come on record during the course of investigation, which suggests prima facie case against the applicants. It is also required to be noted that before registration of the FIR, detailed inquiry was conducted by the revenue officer and after having found that there is forgery of the documents, report was submitted before the higher officer and, thereafter, the Collector concerned has passed an order to register the FIR and in pursuance thereto, the impugned FIR has been lodged narrating entire sequence of incident of evidence and from the contents of the FIR, ingredients of the alleged offences are fulfilled. Further at this stage, this Court cannot appreciate the evidence collected so far. 10. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of Sau. Kamal Shivaji Pokarnekar Vs. State of Maharashtra, reported in AIR 2019 SC 847 , which read as under, "5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere. 11. In view of the aforesaid decision, at this stage, the meticulous analysis of the case and the statements of the witnesses cannot be done since the investigation is in progress and charge-sheet is yet to be filed. It is required to be noted that admittedly there was no stay of investigation and the concerned IO has carried out investigation and recorded the statements of witnesses but at this stage, this Court while hearing the application under Section 482 CrPC had no jurisdiction to appreciate the statements of the witnesses and record a finding that there were inconsistencies in their statement and, therefore, there was no prima facie case made out against applicants. Therefore in my view, this could be done only in the trial but not in Section 482 CrPC proceedings. 12. The Hon’ble Supreme Court in Medchl Chemicals & Pharma (P) Ltd. Vs Biological E. Ltd & Ors., reported in (2000) 3 SCC 269 , has discussed at length about the scope and ambit while exercising power under Section 482 Cr.P.C. and how cautious and careful the approach of the Courts should be. I deem it apt to extract the relevant portion from that judgment, which reads: "Exercise of jurisdiction under inherent power as envisaged in Section 482 of the Code to have the complaint or the charge sheet quashed is an exception rather than rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution with the lodgement of First Information Report. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue expansion is neither practicable nor warranted. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the fact of it does not constitute or disclose any offence alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situations as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount". 13. Over and above that, the Hon’ble Supreme Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. In a judgment in case of State of Haryana Vs. Bhajan Lal, reported in 1992 Supp(1) SCC 335, the Hon’ble Supreme Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by the Hon’ble Supreme Court in (1) Central Bureau of Investigation Vs. Duncans Agro Industries Ltd. reported in 1996 (5) SCC 592; (2) Rajesh Bajaj Vs. State NCT of Delhi, reported in 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. Vs. Mohd. Sharaful Haque & Anr, reported in (2005) 1 SCC 122 . The Hon’ble Supreme Court in Zandu Pharmaceuticals Ltd. (supra), observed that: "The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact." 14. Thus in view of the broad guidelines issued by the Hon’ble Supreme Court in the aforesaid decisions as well as others decision, if the facts of the case on hand are examined, in that event, it is found that on the strength of the forged and fabricated order, the applicants have tried to grab the valuable land of the Government and the said fact is found out on the strength of the detailed inquiry carried out by the officer concerned and after carrying out inquiry, report has been submitted and on the strength of the said report, the Collector concerned ordered to lodge FIR against the accused persons. Further from the documents collected so far by the IO, the involvement of the present applicants in the commission of crime is found out. Further from the documents collected so far by the IO, the involvement of the present applicants in the commission of crime is found out. Admittedly, this is a case of forgery of documents with a sole intent to grab the valuable land and, hence interrogation of the applicant is also required so as to know where did they got custody of the said document and who had entrusted the said document to them and/or who had prepared the said documents or at the time of preparing the said order. Thus considering the involvement of the present applicants in the commission of crime, the applicants are not entitled for any relief. 15. It is required to be noted that section 482 of the Cr.P.C. envisages three circumstances under which inherent jurisdiction may be exercised namely; (1) to give effect to an order under Cr.P.C (2) to prevent abuse of process of court and (3) to otherwise secure the ends of justice. While exercising the powers under the section, the court does not function as a court of appeal or revision, and inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down the section itself. However as stated above, there is prima facie case against the applicants and involvement of the present applicants is also found out. Therefore, no discretion can be exercised in favour of the applicants. 16. In the result, the present application fails and is hereby rejected. The impugned First Information Report being C.R. No.I-51/2017 registered with Visnagar City Police Station is sustained. Notice is discharged. Interim relief stands vacated.