NEUTRAL CITATION
R/SCR.A/9251/2021 ORDER DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9251 of 2021
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HANSABEN D/O BACHUJI SHIVAJI AND W/O BABUBHAI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4,5
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 29/08/2023
ORAL ORDER
1. The present petition is filed for seeking following reliefs:
"A. Be pleased to allow this petition; B. Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or direction in the nature to hold the action of respondent no. 3 and 4 to be illegal, mala fide and initiated with ulterior motive, and further be pleased to quash and set aside the notices issued by respondent no. 3 and 4 produced vide Annexure-A Colly;
C. Pending hearing and final disposal of this petition, be pleased to restrain respondent no. 3 and 4 to act Page 1 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined further pursuant to notices issued by them and stay the same vide Annexure-A colly;
D. Be pleased to issue direction upon the Respondent no. 2 and 5 to hold inquiry against the respondent no 3 and 4 who have illegally indulged in matter of more than 28 years old where learned Civil Court at Mirzapur, Ahmedabad Rural is the custodian of the records where civil rights are yet to be decided by the same court and further upon finding guilty, they may be dealt with strictly in accordance with law with a view to save others from their illegal exercise of powers and to set precedent in the society;
E. Be pleased to impose exemplary cost upon the respondent no.3 and 4 to be bear by them from their own pocket and the same may be awarded to the present petitioners;
F. Be pleased to grant such other and further relief. which deem fit and proper in the interest of justice."
2. Brief facts as per the case of the petitioners in this petition are as such that the present petitioners are legal heirs and close relatives of deceased Khodaji Shivaji. The deceased was owning various agricultural Page 2 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined land and other properties in his name and he passed away in the year 2009 after executing a registered Will in the year 2006 before the Sub-Registrar. Since the deceased - Khodaji was not having any issue out of his wedlock, he resided with the petitioner's family i.e. nephews until his last breath.
2.2. It is further the case of the petitioners in this petition that during the lifetime of the deceased Khodaji, certain civil proceedings were initiated by some parties pertaining to land bearing Survey No. 988 of village Vejalpur which is now new Survey No. 315. That pending these proceedings, Khodaji passed away in the year 2009. It is pertinent to note that during the entire life span of deceased Khodaji, except the petitioners and their families, no one had come forward even at the time of death of Khodaji and thereafter also, but after lapse of 3 years of death of deceased Khodaji, all of a sudden one Shakriben came forward claiming herself to be a legal heir as well as a daughter of deceased Khodaji. Surprisingly she made an application in a pending proceeding of Civil Suit No. 622 of 1992 in the year 2012 and sought prayer to be joined as legal heir Page 3 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined of the deceased Khodaji. It is further the case of the petitioners in this petition that after 2 years of the said proceedings, she (Shakriben) withdrew the said application from the Hon'ble Court by stating that under some misconception the said application was filed and that she is not the legal heir of deceased Khodaji, therefore the application was sought to be withdrawn by Shakriben herself. It is further the case of the petitioners in this petition that again after lapse of some more years, she (Shakriben) came forward again and tried to get the said application restored by narrating false and frivolous pleadings. The learned civil court was pleased to reject the said application after recording reasons in detail.
2.3 It is further the case of the petitioners in this petition that surprisingly once again she (Shakriben) came forward with a new application in form of a Review Application and requested the learned civil court to reconsider her request. It is further the case of the petitioners in this petition that as the said Shakriben has played foul with the learned civil Court and abused the process of law, the present petitioners have moved Page 4 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined an application before the learned civil court to initiate proceedings under section 340 of Code of Criminal Procedure, 1973. It is submitted that these events took place uptil the midst of the month of August, 2021. At this juncture, the said Shakriben has diverted her focus and with the help of some known and high handed persons, approached the present respondent no. 3 at first point of time, ignoring the regular process. The respondent no. 3 issued notice to one of the petitioner's son vide notice dated 16-08-2021 and called upon to give statement pertaining to the land bearing survey no. 988 of village Vejalpur without indicating details. The Respondent no. 3 has again issued notice to another petitioner on 21-08-2021 and compelled her to remain present to give 7 statement.
2.4 It is further the case of the petitioners in this petition that pursuant to the said notices, the petitioners have issued notice of intimation through their advocate on 26-08-2021 along with complete documentary details as well as present status of matter and requested to restrain himself in such a unique matter where civil court is the custodian of the case and its records since Page 5 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined last 28 years. That the said notice may be treated as part and parcel of the pleadings of this Petition. It is further the case of the petitioners in this petition that at that time, the said Shakriben had bypassed the regular process of moving application to the concern authority/local police station and directly approached the office of Respondent no. 3 to 5 which smells of something which is not desirable to state in black and white. However, it can be gathered from the entire episode which has been described in the present petition and hence the present petition is filed to prevent the mis-use of police powers under the garb of CID Crime in a matter which is pending before the Learned Civil Court at Mirzapur, Ahmedabad Rural since 1992. 2.5 It is further the case of the petitioners in this petition that after receipt of the said notice of intimation from the advocate of the petitioners, now the respondent no. 4 has entered into this episode and he has started issuing notice to the third petitioner on 08.09.2021 and called upon her to remain present to give statement pursuant to land bearing Survey No. 988 of village Vejalpur under the garb of CID Crime, Fraud Cell. At Page 6 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined this juncture, it is to be stated that respondent no. 3 and 4 are conducting simultaneous inquiry. It is further the case of the petitioners in this petition that in this backdrop, the Respondent no. 3 and 4 has adopted unethical approach which can be described as mis-use of police powers under the garb of office of CID Crime and pick and choose/selected the case from the court of Learned Civil Court, Mirzapur, Ahmedabad Rural, which is pending since 1992 for its adjudication. It is the case where it appears that the respondent no. 3 and 4 have invited application from the so called complainant and picked up the case by ignoring or relegating the complainant to approach local police station having territorial jurisdiction. The Respondent no. 2 and 5 have been joined in the present proceedings so as to point out the facts that how their sub-ordinate officers are encroaching the pending Civil Proceedings of the court of law and are harassing innocent citizens with mala fide intention and oblique motive to those who have knock the doors of justice under the police powers and uniform. Hence the present petition is preferred.
3. Heard learned advocate Mr. Kishan Chakwawala for Page 7 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined the petitioners and Mr. Dhwana Jayswal, learned Additional Public Prosecutor (APP) for the respondent - State.
4.1 Learned advocate Mr. Kishan Chakwawala, representing the petitioners, has drawn my attention to the prayers made in the present petition. He has submitted that respondent Nos. 3 and 4, against whom allegations have been made by the complainant, serve as the Investigating Officers in this case. Therefore, as a matter of propriety, it is advisable that the investigation not be conducted by these officers to avoid any potential bias or prejudice, in accordance with the principles of impartiality. Furthermore, he has pointed out that it is peculiar that, despite the absence of territorial jurisdiction, the C.I.D. Crime has accepted the complaint from the complainant and initiated the investigation/inquiry into the matter. 4.2 He has also brought to my attention a communication dated August 21, 2021, received from the Deputy Superintendent of Police, C.I.D. Crime, which discloses that the notice has been issued for recording Page 8 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined statements from petitioner Nos. 1 to 3.
4.3 Moreover, he has drawn my attention to the various documents submitted as evidence. He emphasized that the disputed land in question has become highly valuable over time. The Will in question was executed by the individual, who was the owner of the land at that particular time. Subsequently, several civil proceedings were initiated, and currently, a civil proceeding is still pending for consideration before a higher authority. Consequently, he has argued that at its core, this dispute pertains to the rights of the involved parties, a matter of a civil nature that is being coloured with a criminal texture. Therefore, he has contended that, given the manner in which the investigation has been conducted, especially by respondent Nos. 3 & 4, he is concerned that a fair investigation may not ensue. Consequently, he believes that his right to a fair investigation is at risk of being compromised. 4.4 He has relied on the judgment of the Hon'ble Apex Court in the case of R. Nagendra Yadav versus The State of Telangana reported in (2023) 2 SCC 195, more Page 9 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined specifically, paragraphs 14 and 17 are relevant. He has also relied on the judgment of Madras High Court in the case of A.V. Bellarmin versus Mr. V. Santhakumaran Nair reported in Crl. O.P. (MD) No.12212 of 2013 dated 13.8.2015, more specifically, paragraph 13 is relevant. He contends that, given the aspects raised in the present petition and those highlighted during the course of the argument, especially considering the conduct of the complainant, the prayers presented in the present petitioner's case should be taken into consideration. 4.5 Nevertheless, he has clarified that he is presenting arguments solely on behalf of petitioner No. 3. Although he filed the present petition on behalf of all the petitioners, his instructions are limited to advocating for petitioner No. 3. Despite his request to the Court to consider his arguments exclusively for petitioner No. 3, the Court has chosen to consider his arguments on behalf of all the petitioners. As there is no note or pursis for withdrawal of his appearance, which is required under the provisions of the Gujarat High Court Rules, this Court cannot permit him to withdraw his appearance for any of the petitioners. It's important to Page 10 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined note that the present petition was jointly filed by petitioner Nos. 1 to 3, and the advocate representing the petitioners had initially filed his appearance for all the petitioners.
5.1 Conversely, Mr. Dhwana Jayswal, the learned Additional Public Prosecutor (APP) representing the respondent State, has informed the Court that his officer is present today. He has also produced the relevant investigation documents carried out by the officers. Initially, he expressed that his office has no objection to transferring the investigation to different officers other than those currently handling it. However, he concurrently argued that the allegations made by the complainant appear to be an attempt to demoralize the officers conducting the investigation into the complaint. The complainant alleges that fraud has been committed by the advocates who represented her case in the concerned Court, and advocates for the opposing party have also played a significant role in infringing upon her rights regarding the property in question. As a result, he has clarified that the inquiry was initiated based on the complaint received from the complainant, a widow and Page 11 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined the spouse of an Assistant General of Police (AGP) at C.I.D. Crime. According to the complainant, other police authorities did not show interest in registering or accepting her complaint. Therefore, an inquiry was launched following the complaint from the widow, and subsequently, the communication dated August 21, 2021, was sent to the present petitioner.
5.2 Furthermore, Mr. Jayswal has argued that during the course of the investigation, petitioner No. 1 has recorded the statement before the Investigating Officer. Additionally, a doctor who is associated with the Will in question has also recorded his statement. These statements are part of the official record, along with the recorded statement of the complainant made by the relevant authority. Furthermore, Mr. Jayswal has argued that the advocate representing the present petitioners has displayed a personal interest in the matter, suggesting possible personal involvement related to the property in question. He contended that petitioner No.1's statement itself demonstrates the extent to which actions were influenced by the concerned advocate. Moreover, he pointed out that the doctor's statement implies doubts Page 12 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined about the authenticity of the Will in question. 5.3 Taking into account the nature of the dispute outlined in the present petition, Mr. Jayswal stressed the importance of conducting a thorough investigation into the complaint submitted by the complainant. Consequently, he has requested that the present petition should be dismissed, and he recommends imposing heavy costs on the petitioner, specifically petitioner No. 3. 6.1 I have considered the rival submissions made at the bar by the respective parties. I have perused the recorded available on record. I have also considered the manner in which the present petition is filed. It appears that the petitioners received communication from the Deputy Superintendent of Police (Dy.S.P.) on August 21, 2021. Following this communication, the petitioners submitted documents to the relevant authority by mailing them via postal services 6.2 It also becomes evident that there have been several civil suits filed between the parties involved. Furthermore, it is noteworthy that petitioner No.3 has Page 13 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined previously lodged complaints before filing the present complaint against the petitioners. Furthermore, it becomes apparent that the dispute primarily falls within the realm of civil matters. However, there are some peculiar and suspicious elements that have emerged from the statements of individuals, who deposed before the Investigating Officers, as well as from the documents available on record. These elements raise questions about the intentions of petitioner No. 3. While the present petition appears to be filed under the pretext of seeking a fair investigation, and to some extent, the prayers made in the petition do seem legitimate, it is worth noting that the C.I.D. Crime initiated an inquiry based on a complaint received from the complainant, without formally registering any offence at the local Police Station. Additionally, it is important to consider the conduct and actions of the petitioners, especially the initial filing of the present petition by petitioner Nos. 1 to 3, with the prayers outlined therein. 6.3 Thereafter, when the matter is called out yesterday, the learned advocate for the petitioners has submitted that he is arguing the matter for only petitioner No.3 Page 14 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined and for the petitioner Nos.1 & 2, he is not arguing the matter. The matter is kept today for taking further instructions with specific understanding that whether he wants to withdraw this petition or to proceed with the hearing of the matter.
6.4 However, when the matter was called today, the Court pointed out that the Court cannot permit him to argue exclusively for petitioner No.3, especially considering that he had filed his appearance for all the petitioners. The Court emphasized that without withdrawing his appearance for petitioner Nos. 1 & 2 by following procedure, it is improper to assert during the argument that the advocate is not representing petitioner Nos. 1 & 2. It was clarified that, once a Vakalatnama is filed for all the petitioners, the advocate cannot unilaterally withdraw representation without following the proper procedure and without obtaining the Court's permission. This conduct of advocate, prima facie, raises concerns about the advocate's professional misconduct. Petitioner Nos.1 & 2 have also entrusted the matter to him by engaging him as counsel, and during the argument, he expressed unwillingness to represent Page 15 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined petitioner Nos. 1 & 2 without following the prescribed procedures under the Gujarat High Court Rules or any relevant provisions of the law and thus, this can be said as failure to discharge his duty as an advocate for the petitioner Nos.1 & 2 and also towards the Hon'ble Court. This Court expects more ethical behaviour from learned advocate Mr. Kishan Chakwawala, representing the petitioners, in future.
6.5 Furthermore, when I consider the factual aspects of the matter, it becomes evident that the precedent cited by the learned advocate for the petitioners is binding on this Court. It leaves no room for doubt that a proper and impartial investigation should be conducted by the relevant authorities. Considering the fact of the present case, I am of the opinion that though they have carried out investigation in fair and reasonable manner so far, the allegations are levelled against the officers of the C.I.D. - respondent Nos.3 & 4, and therefore, it cannot be said that merely because the complaint is made before the C.I.D. Crime, that factor itself is considered as suspicious. Therefore, the officers who are carried out the investigation are to be considered as bias. Page 16 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023
NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined 6.6 Prima facie, from the perusal of the material available on the record, it appears that all the documents submitted have been duly accepted and incorporated into the Investigating Agency's records. Furthermore, statements from petitioner No.1 and the relevant doctor have also been recorded. Hence, based on this preliminary assessment of the investigative material, it may not be necessary to entertain and consider the prayers made in the present petition, as petition is an attempt to pressurize the Investigating Agency. 6.7 However, in view of the expressed willingness of the officers concerned to transfer the investigation to another officer or officer(s), it is appropriate to direct respondent No. 5 - the Competent Authority concerned, to consider aspect for changing the investigating officer. This shall be done after duly recognizing and appreciating the efforts put forth by respondent Nos. 3 & 4, who have carried out investigation thus far.
6.8 It is expected that the present petitioners shall co- operate in the process of investigation and the inquiry/investigation pursuant to the impugned complaint Page 17 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023 NEUTRAL CITATION R/SCR.A/9251/2021 ORDER DATED: 29/08/2023 undefined shall be completed as expeditiously as possible, preferably within three months from today and shall come to the logical conclusion after proper investigation. 6.9 Though prayers made in the present petition are not considered on merits, but with a view to consider the aspect of fairness of investigation and in view of the willingness shown by the respondent Nos.3 & 4 in the present matter, respondent No.5 is directed to consider the aspect about change the officer for carrying out further investigation, as expeditiously as possible, preferably within a week from today.
7. Accordingly, the present petition is dismissed.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 18 of 18 Downloaded on : Sun Sep 17 02:55:05 IST 2023