NEUTRAL CITATION
R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1561 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MOHAMMED HANIF GHULAM PATEL Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR SI NANAVATI, SR. ADVOCATE with MR VAIBHAV SHUKLA for for NANAVATI & NANAVATI(1933) for the Applicant(s) No. 1 MS ASMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 24/08/2023 CAV JUDGMENT
1. This petition is filed for quashing and setting aside the FIR being I - C.R. No. 3 of 2014 registered with Bharuch Rural Police Page 1 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined Station for the offence punishable u/s 467, 468, 471, 120-B of the IPC.
2. The impugned FIR reads as under (translated into English):-
"My name is Mustafa Haji Mohammadlangiya, Caste: Muslim VoPatel, Residence: Palej, Dhanjisha Gin, Taluka & Dist. : Bharuch, M. No. 9898568299, I, hereby, give my complaint, in person that I'm residing at the above mentioned address with my family and earning livelihood through cultivating land. I got married to a daughter of Mr. Ibrahim Aadam Mitha, namely Ayeshaben at Kanthariya village, thirty years ago, according to the customs & usages of our society.
Today, you've taken my statement with regard to the application given by me, addressed to the Superintendent Of Police Shree, Bharuch,bearing Application No.61/13 dtd 20/04/13 & D Application No.66/13 dtd 25/04/13. After taking my statement, for lodging offence under I.P.C Sections 467, 468, 471, 120(B) and under other sections, you've submitted report to the Superintendent Of Police Shree, Bharuch, regarding which the permission was given by him through ક્ રમાંક-અરજ-વશી-પરવાનગી-૫૩૭--૧૪ dtd. 10/01/2014 for lodging offence, on the basis of which you have called and acquainted me regarding the permission letter/docment, on the basis of which I'm giving my complaint that I got married to the daughter of Mr. Ibrahim Aadam Mitha,named Ayeshaben, at village Kanthariya as per the customs and usages of our society and in my in-laws, I've three brothers in-
law, named [1] Gulambhai (at U.K), [2] Aaheshanul Hakk (at U.K), [3] Saleem(passed away in the year 2003), as well as I've six sisters in-law, in which four are at U.K and Ajijaben is married to Mr. Hanifbhai Papadiya at Kanthariya village and one is my wife. My father in-law passed away on 26/05/1992. His ancestral properties (Land) are situated at Tham, Page 2 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined Kanthariya, Sherpura village admeasuring about thirty acres. in which at Tham village 18312 sq mtr is situated, which was running in the name of my second number brother in-law named Aheshanul Hakk. For the administration of this land and other lands and house as well and for keeping an eye over them, I was given Power Of Attorney on 07/07/1992 in the presence of Ld. Mamlatdar Shree, Bharuch.
Amongst these properties, about four years ago when some house construction work started on the land bearing Survey No.158 situated at Tham village, I doubted and hence I obtained a copy of Village Form No.6 from Mamlatdar Office, Bharuch. Thereby I came to know that this property was wrongly entered in the the name of Musa Mohammad Mitha in the year 1992, and before occuring his death, in the year 1997, on the basis of Power Of Attorney and by misusing the power given, Mr. Ahmed Aadam Master, resident of Higlot wrongly sold this property to Mr. Mohammad Hanif Gulam Patel, resident of Kosamba, Dist: Surat and therby, Bogus Deed was made up by a Sale Deed, bearing Document No.4295/2000 dtd. 25/10/2000, in which the attestors are (1) Anilbhai Gordhanbhai Patel, resident of Radhakrushna Society, A/Zhadeshwar Road, Bharuch (2) Ismail Mohammad Chowkwala, resident of Malbari Darwaja, near Mumma Masjid, BharuchIn this regard, when I Obtained necessary records from Tham village Panchayat, I came to know that on the notice issued under S.135(D2), the Bogus Signatures of deceased Musa Mohammad Mitha and Ibrahim Aadam Mitha was found done,inspite of their beig dead, on 15/05/2001, in the presence of the then Talati Cum Mantri, Hipjul Rehman, resident of Manbur. And, inspite of my brother in-law Ahesanul Hakk Ibrahim Aadam being at U.K and inspite of 1,being his Power Of Attorney Holder, by doing and causing to be done False Signature of his name on the 135(D 2) Notice, the Talati Cum Mantri of Tham village Panchayat as well, having played criminal role in collusion with one another, having Fabricated False Documents/Govt. Records, they have conspired Page 3 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined criminally with regard to this property & misappropriated the property by cheating. Hence, as I had made an Application and in Ld. Collectorate Office, SIT Branch, they had heard me and told me to loadge Police ComplaintSo, due to making of applications, having recorded D Application No. 61/13 dtd 20/04/2013 & D Application No.66/13 dtd 25/04/2013, you've done the needful investigation, obtained and verified the Records and presented the Report to the Police Officer, Bharuch by 8.-i. 2420/13 dtd. 13/11/2013 and thereon, on obtaining their permission for filing my complaint/FIR through ક્ રમાંક- અરજ-વશી-પરવાનગી-૫૩૭-૧૪ dtd 10/01/2014, at present, I've come for lodging FIR for the offence against the accused under Sections 466, 467, 468, 471, 120(B) of Indian Penal Code and for conducting investigation thereonIn which, the accused Talati Cum Mantri Hipjul Rehman, resident of Manuber and the Giver of the Land on Sale, Ahmed Aadm Master, resident of Higlot are expired. These many facts contained in my FIR/Complaint are correct and true."
3. The petition is filed inter alia on the ground that the petitioner is the bona fide purchaser of old tenure land bearing survey No.158 admeasuring 18312 sq mtr situated at village Tham, Tal & Dist: Bharuch (in short "the land in question") from the power of attorney holder of the seller by paying sale consideration. The petitioner has not committed any offence u/s 467, 468, 471, 120-B of the IPC. The petitioner has not prepared any forged power of attorney and produced it as genuine one. Another contention raised in the petition is that the FIR is filed belatedly and almost after 13 years of the said incident, which prima facie indicates that the FIR is filed for wreacking vengeance. Thus, it is prayed to quash the impugned FIR.
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4. Heard learned Senior Advocate Mr. Sudhir Nanavati assisted by learned advocate Mr. Vaibhav Shukla for the petitioner and learned APP Ms. Asmita Patel for the respondent State.
4.1 Though, rule is served to the respondent No.2/original complainant, he has chosen not to remain present and to contest the petition.
5. Learned Senior Advocate Mr. SI Nanavati, having taken this court through the contents of the FIR, would draw that span of the alleged offence stated is from 1.1.2000 to 31.12.2012, which is highly improbable. He would further submit that the FIR alleging the incident came to be lodged on 16.1.2014 which is again highly improbable. Further reading the contents of the FIR, he would submit that the sale deed was executed on 25.10.2000. It is alleged that the sale deed is executed based on forged power of attorney of the seller namely Musa Mohammed Mitha. He would further submit that perusing the FIR itself indicates that out of three accused, two, have expired, namely Ahmed Adam Master and Hafijur Raheman Muslim much prior to lodging of the FIR and it was within the knowledge of the complainant that the person against whom the allegation of preparing false power of attorney of deceased Musa Mohammed Mitha is made has expired and yet the FIR was also lodged against him. He would further submit that Talati-cum-Mantri Hipjul Rehman against whom the allegation of making the false Page 5 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined and forged revenue entry of the land in question is made has also expired prior to the FIR and yet his name was mentioned in the FIR so as to wreak the vengeance. He would further reiterate that the present petitioner is a bona fide purchaser, he has purchased the land in question after paying the sale consideration. He would further submit that the land in question belongs to Musa Mohammed Mitha. The heirs and legal representatives of Musa Mohammed Mitha did not come forward to file the FIR, but one Mr.Mustafa Mohammad Langiya, who is distant relative of Musa Mohammed Mitha came forward to file the FIR, which itself questions propriety and correctness of the impugned FIR.
6. Learned Senior Advocate Mr. Sudhir Nanavati would submit that even in the year 2004, when the revenue proceedings took place qua the land in question, the respondent/complainant was having knowledge that the land in question was sold to the present petitioner whose name is mutated in the revenue records and yet the complainant did not choose to file FIR. Drawing the attention of this Court towards page 40 of the compilation, learned Senior Advocate Mr. Nanavati would submit that in a revenue proceedings initiated under Rule 108(5) of the Land Revenue Rules by the heirs and legal representatives of the deceased seller, it is not alleged that the power of attorney is forged and upon such forged power of attorney, the sale deed is executed. He would further submit that the revenue authority while deciding appeal has not questioned on legality and propriety of power of attorney or sale deed.
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7. Referring to Annexure F, learned Senior Advocate Mr. Nanavati would submit that the petitioner has taken NA permission from the concerned authority. The concerned authority having considered the genuineness of the registered sale deed, granted the NA permission and as such, decided the genuineness of the registered sale deed, which cannot be questioned much subsequently i.e. after 10 years.
8. Learned Senior Advocate Mr. Nanavati, referring to the judgment of the Hon'ble Apex Court in case of Salib@Shalu@Salim vs. State of UP and others rendered in Criminal Appeal No.2344 of 2023, more particularly para 26 of the said judgment, would submit that while deciding legality and veracity of the FIR, the Court is required to look into FIR with care and little more closely, more particularly, when the FIR is filed for wreacking personal vengeance. Para 26 of the said judgment reads as under:-
"26. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior Page 7 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between-the-lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRS have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRS assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."
9. Upon above such submission, Learned Senior Counsel Mr. Nanavati submits to allow present petition and to quash and set aside the impugned FIR.
10. On the other hand, learned APP Ms. Asmita Patel would submit that admittedly, the power of attorney of Musa Mohammad Mitha is used three years subsequent to his death and based on such forged power of attorney, the sale deed was Page 8 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined executed, which by itself is nonest in the eye of law. She would further submit that there is no explanation on the part of the petitioner that why the sale deed is executed three years subsequent to the death of Musa Mohammad Mitha. She would further submit that once the person, who had given the power of attorney, has expired, then that power of attorney deed automatically stands discontinued and the person automatically lost such power of attorney to execute or to do any act on behalf of the deceased. In view of that, since it is on record that the power of attorney of Musa Mohammad Mitha is used to execute the sale deed after his death, prima facie, reveals that forged power of attorney is used as genuine before the Government authority to execute sale deed. Thus, aforementioned offence is attracted.
11. Upon such submission, she submits to dismiss this FIR.
12. Having heard learned advocates appearing for the respective parties, at the outset, it is apt to indicate certain undisputed facts, which reads as under:-
The power of attorney at Annexure C was executed on 19.3.1996 at Republic of Zambia. It contains the signature of Magistrate of the judicial department of Republic of Zambia.
This power of attorney is attested by the Executive Magistrate, Bharuch on 20.1.1998.
This power of attorney contains the power in favour of Page 9 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined Ahmed Aadam Master, resident of Higlot allowing him to sell several parcels of the lands including the land in question.
The registered sale deed (Annexure B) was executed on 25.10.2000 in favour of the petitioner by way of power of attorney holder.
This registered sale deed is noted and approved by the Joint Sub Registrar, Bharuch vide Serial No.4295. Revenue entry No.2985 has been mutated in favour of the petitioner upon the registered sale deed dated 10.1.2001. Revenue entry was challenged by Hafizul Rehman vide HKP Appeal NO.1204, whereupon, sale of the land in question has been recognized.
This appeal has been dismissed on 9.8.2004. In view of Annexure F, the petitioner preferred an application before the concerned authority for getting NA permission of the land in question and the NA of the land in question was granted in favour of the petitioner. The impugned FIR is lodged at the instance of Mustafa Haji Mohammadlangiya though, admittedly, he is not the legal heir of deceased Musa Mohammad Mitha.
Legal heirs of deceased Musa Mohammad Mitha have not chosen to file complaint/ FIR alleging misuse of the power of attorney to execute the sale deed.
13. In view of the above facts, if we read the FIR, it is alleged that deceased Musa Mohammad Mitha has expired in 1997, but his death certificate is not produced on record. In fact, the Page 10 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined power of attorney on record (Annexure C), which is alleged that it has been forged, was approved by the Executive Magistrate, Bharuch on 20.1.1998. In the FIR, it is alleged that the respondent/complainant came to know that construction of some houses on the land in question took place or started four years back. Important to note that though it came to the knowledge of the respondent/complainant that construction has been started on the land in question four years back, no FIR was filed upto four years. No explanation has been offered that why FIR is filed belatedly. In the FIR, the respondent/complainant also not mentioned about the revenue proceedings as well as NA proceedings taken place in favour of the petitioner.
14. What more important is that the complainant has not mentioned that under which capacity he has filed the FIR alleging that the power of attorney is forged and fabricated. Another aspect that comes on record reading the FIR itself is that the complainant was knowing that Ahmed Adam Master, the person holding the power of attorney and the Talati-cum- Mantri Hafizur Raheman Muslim respectively have expired and yet he has filed the FIR against these two dead persons, which indicates that he is waiting for long for happening of certain incident and then he has filed the FIR after giving due thoughts.
15. It is undisputed that the present petitioner is bona fide purchaser of the land in question and he has paid the amount of sale consideration. This sale deed was passed test of revenue authority. Revenue entry is mutated on the basis of the sale Page 11 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined deed. In revenue proceedings, unsuccessful challenge was also made to revenue entry. Again, in proceeding for granting NA permission, legality of sale deed was examined. What more important to note is that no civil proceedings are filed before the competent civil Court to challenge the legality of power of attorney or sale deed. Considering these aspects, what discloses is that the present FIR is frivolous or vexatious proceedings and the attending circumstances on record indicates that the FIR is filed with some different motive for wreaking the vengeance. The impugned FIR is well drafted after applying mind. Reading between the lines in the FIR indicates that necessary ingredients to constitute the alleged offences are not disclosed as far as present petitioner is concerned.
16. In case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604, interpreting section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India, principally, inherent power of this Court, the Hon'ble Apex Court made following observations:-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, 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 guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such Page 12 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023 NEUTRAL CITATION R/CR.MA/1561/2014 CAV JUDGMENT DATED: 24/08/2023 undefined power should be exercised.
(1) 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;
(2) 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 investi- gation 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;
(3) 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;
(4) 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;
(5) 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;
(6) 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 institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, (7) 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."
17. In background of the facts of the case, this Court is of the view that the case of the present petition falls within the parameter Nos.1st, 5th and 7th respectively of State of Haryana Vs. Bhajanlal (supra).
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18. In the result, present petition is allowed and impugned FIR being I - C.R. No. 3 of 2014 registered with Bharuch Rural Police Station and all other consequential proceedings arising therefrom are hereby quashed and set aside. Rule is made absolute.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 14 of 14 Downloaded on : Sun Sep 17 02:21:38 IST 2023