Bombay High Court
Datta S/O. Sanjay Bondhare vs The State Of Maharashtra And Anr on 22 November, 2017
Bench: S.S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION 1683 OF 2017
Datta s/o Sanjay Bondhare
Age 30 years, Occu:Agriculture
R/o Akhada Balapur, Tq.Kalamnuri
Dist.Hingoli ... APPLICANT
Versus
1] The State of Maharashtra,
Through Akhada Balapur
Police Station, Tq.Kalamnuri
Dist.Hingoli.
2] Bhimrao s/o. Laxmanrao Chafale
Age 58 years, Occu : Agriculture
R/o Pimpri (kh) Tq.Kalamnuri
Dist.Hingoli. .. RESPONDENTS
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Mr.M.V.Ghatge, Advocate for applicant.
Mr.M.M.Nerlekar, APP for Respondent No. 1.
Mr.R.K.Ingole, Advocate for respondent No.2.
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CORAM : S.S.SHINDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 10/11/ 2017.
PRONOUNCED ON :22/11/2017.
JUDGMENT ( PER MANGESH S. PATIL,J.) :
1] Rule. Rule is made returnable forthwith. Heard finally
with the consent of all the parties.
2] This is an application under Section 482 of Cr.P.C. seeking
quashment of the FIR No.0267/2016 dated 02/12/2016 registered
with Akhada Balapur Police Station, Tq. Kalamnuri, Dist.Hingoli for
the offences punishable under Sections 420, 468, 471,218,211 of
IPC.
3] Shortly stated, the facts leading to the filing of this Application
are as under :
The respondent no.2 filed complaint before the learned JMFC,
Hingoli seeking direction under Section 156(3) of the Cr.P.C. with the
allegation that his father was a protected tenant in the land
admeasuring 1 Hectare 60 Are out of land Gat no.20 at village Pimpri
(Khurd) Tq. Kalamnuri. His father was in exclusive possession of
that land till his death. After his demise, the respondent no.2 and his
brother have been in continuous and peaceful possession of the
land. Shamrao Sonaji Chafale who is the accused no.1 named in the
FIR had instituted Regular Civil Suit No.68/2005 against the
respondent no.1 in the Court of Civil Judge, Junior Division,
Kalamnuri, seeking perpetual injunction to not to obstruct his
possession in the said land. However, the Suit was dismissed. Thus
the possession of the respondent no.1 and his brother in the land
was endorsed. Accordingly, they instituted Special Civil Suit
No.71/2015 in the Court of C.J.S.D. Hingoli for declaration of their
title to that land. Even earlier, when the very same land was
purchased by one Premrao Vithoba Dhande in an Execution
Proceeding bearing Regular Darkhast No.9/1971 and the purchaser
had attempted to get mutated his name in the revenue record of the
land, his application was rejected and even the appeal preferred by
Premrao was dismissed. Inspite of such state of affairs, it is alleged
in the FIR that the accused no.1 Shamrao and the accused no.2
therein i.e. the present applicant in collusion with the concerned
Talathi took bogus entry about possession of the present applicant in
the land by drawing sham panchanama. Thus he alleged that the
present applicant alongwith other accused prepared false record with
a view to grab the land.
4] It seems that the learned Magistrate obliged respondent no.2
by passing order of investigation under Section 156(3) of the Cr.P.C.
In pursuance of direction, the impugned FIR has been registered.
5] We have heard learned Advocate for the applicant, as also
learned APP and the learned Advocate for the respondent no.2. We
have also perused the affidavit in reply filed by the respondent no.2.
6] According to the learned advocate for the applicant, the
learned JMFC has passed order under Section 156(3) of the Cr.P.C.
without application of mind. The applicant has already been
arraigned as a co-defendant in Special Civil Suit No.71/2015 and the
dispute is purely of civil nature. The complaint has been filed with
ulterior intention to pressurize the applicant. No tenancy certificate
has been issued in favour of the father of the respondent no.2 even
though they are claiming to be protected tenants. Lastly, learned
advocate submitted that the applicant is a bona fide purchaser of the
land. Since the revenue entries did not mention about any tenancy,
no fault can be found with the applicant in purchasing the land much
less attributing him with any malice. According to the learned
advocate dispute of civil nature has been sought to be brought under
criminal jurisdiction.
7] The learned advocate also referred to the decision in the case
of Narasamma and others V/ State of Karnataka and others; 2009(4)
All M.R. 969 and the decision of the Division Bench of this Court in
the case of Rashmi w/o Satish Khandvikar and another V/s The
State of Maharashtra and another in Criminal Application No.3127 of
2016 decided on 17/10/2016 to which one of us (S.S.Shinde,J.) was
a party.
8] Per contra, learned advocate for the respondent no.2
vehemently submitted, relying upon the decision in the case of
Lalmuni Devi (Smt) V/s State of Bihar and others; (2001) 2 SCC 17,
that merely because there is also a civil dispute, that cannot be the
reason to ignore if the act simultaneously amounts to an offence
under the law. The learned advocate also submitted that inspite of
knowledge of the pending litigation, in collusion with Shamrao, the
applicant has purchased his land. They hand in glow with the
revenue authorities also attempted to draw a false panchanama
depicting possession of Shamrao to prove their claim and therefore,
all the necessary ingredients for constituting offences are made out
in the complaint. The learned advocate also submitted that already
an order of injunction has been passed in favour of the respondent
no.2 in the Special Civil Suit No.71/2015 and Application for
temporary injunction restraining the defendants therein including the
present applicant to obstruct their possession. Right in the teeth of
such order, the applicant is bent upon to obstruct the possession.
He also referred to the documents to show that in the previous
litigation being the auction purchaser of the land, the claim for
mutation by the auction purchaser was refuted by the revenue
authorities and even the appeal was dismissed. Thus, the learned
advocate submitted that there is no merit in the application and the
same is liable to be rejected.
9] At the outset, it is necessary to state that the scope of the
present inquiry is limited to ascertain whether all the necessary
ingredients for constituting the offence registered against the
applicant can be made out from reading the contents of the FIR.
Prima facie all the necessary ingredients constituting offences are
discernible, from the allegations. As is laid down in the case of
Lalmuni Devi (supra), a dispute can have a civil as well as criminal
flavour and merely because civil litigation is pending, one cannot
ipso facto take out the criminality involved.
10] We do not intend to go into the disputed factual aspects but
suffice for the purpose to observe that the documents on record
clearly show that since long possession of the respondent no.2 and
his brothers in the land has been confirmed by judicial and quasi
judicial authorities, that too to the knowledge of Shamrao Chafale
who is the vendor of the applicant. It seems highly improbable that
the applicant has not been aware about such previous litigation or
was naive in purchasing the land which has been in dispute. We
deem it necessary to make it clear that we do not wish to transgress
into the realm of civil dispute, but are pointing out this circumstance
only to judge the probabilities since that is one of the circumstances
which need to be scrutinised as falling under Category No.1 of the
seven categories laid down in the case of State of Haryana V/s
Bhajanlal; AIR 1992 S.C. 604 .
11] There is yet another reason which needs special reference for us
not to intervene in the criminal process at this juncture. As is mentioned in
the application itself, though applicant has cursorily mentioned that the FIR
has been registered in pursuance of the order passed by the learned
JMFC by invoking power under Section 156(3) of the Cr.P.C. without
application of mind, already the applicant has impugned that order by filing
Criminal Revision Application No.23/2016 which is pending before the
learned Additional Sessions Judge, Hingoli. If such is the state of affairs,
when the order on the basis of which the impugned FIR has been
registered is under judicial scrutiny elsewhere, so long as the order passed
by the learned Magistrate is not set aside, according to us, it is premature
to simultaneously consider as to whether the FIR can be quashed.
12] The attempt of the learned advocate to rely upon the decision in the
case of Narsamma (supra) is redundant. It is trite that the evidentiary value
of the revenue record is well settled and the entries would certainly reflect
as to who is in possession on the date when the entries are taken.
However, we do not see as to how this principle can be invoked to resolve
the instant controversy where the scope of the inquiry is limited.
13] It is necessary to also bear in mind the recent decision of the
Supreme Court in the case of HDFC Securities Limited and
others Vs. State of Maharashtra and another [9 (2017) 1
SCC 640] wherein it has been observed as under :
"27. It appears to us that the appellants approached
the High Court even before the stage of issuance of
process. In particular, the appellants challenged the
order dated 04.01.2011 passed by the learned
Magistrate under Section 156(3) of Cr.P.C. The
learned counsel appearing on behalf of the
appellants after summarising their arguments in the
matter have emphasised also in the context of the
fundamental rights of the appellants under the
Constitution, that the order impugned has caused
grave inequities to the appellants. In the
circumstances, it was submitted that the order is
illegal and is an abuse of the process of law.
However, it appears to us that this order under
Section 156(3) Cr.P.C. requiring investigation by
the police, cannot be said to have caused an injury
of irreparable nature which, at this stage, requires
quashing of the investigation. We must keep in our
mind that the stage of cognizance would arise only
after the investigation report is filed before the
Magistrate. Therefore, in our opinion, at this stage,
the High Court has correctly assessed the facts and
the law in this situation and held that filing of the
petitioners under Article 227 of the Constitution of
India or under Section 482 Cr.P.C., at this stage are
nothing but premature. Further, in our opinion, the
High Court correctly came to the conclusion that
the inherent powers of the Court under Section 482
Cr.P.C. should be sparingly used."
14] For all these reasons, we see no sufficient ground to quash the FIR.
15] The Application is rejected. Rule is discharged.
16] It is made clear that the above observations are confined to the
decision of this application only and shall neither influence the
Investigating Officer nor the trial Court in the discharge of their
function/duty.
(MANGESH S. PATIL,J.) (S.S.SHINDE,J.)
umg/
